:^'i WMOti X-W: ::#^ '.-^s i Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS KD 288.A22T872'""""-"'™^^ ~^ *l!llNl!ilffllMl&'' "' *"« '^ases publis I Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017964069 AN ANALYTICAL DIGEST OF THE CASES PUBLISHED IN THE NEW SERIES OP THE LAW JOURNAL REPORTS AND IN THE COURTS OF COMMON LAW AND EQUITY, AND THE COUET OF APPEAL IN BANKRUPTCY, IN THE HOUSE OF LOEDS, AND IN THE PEIVY COUNCIL, IN THE COUET OF PEOBATE, THE COUET FOE DIVOECE AND MATEIMONIAL CAUSES, IN THE HIGH COUET OF .ADMIEALTY, AND IN THE ECCLESIASTICAL COUETS, From MICHAELMAS TERM 1865 to TRINITY TERM 1870 mCLUSIVE. By EDMUND SpDRY-MASKELYNE, Esq. BAEEISTER-AT-LAW. LONDON : PRINTED BT SPOTTISTVOODE AND CO., NEW-STREET SUVAEE PUBLISHED BY EDWARD BRET INGE, 5 'QUALITY COURT, CHANCERY LANE, 1872. This Digest (containing Cases' from -ISGSfto 1870) is ifti continuation of Nine othees, published at different times, containing the Cases reported in the Law Journal Eeports, and other contemporary Eeports since the year 1^22, either of which may be had as published, at the following prices : — First, 1822 to 1828, price 11. lis. 6d. boards. Second, 1828 to 1831, price 15s. boards. Third, 1831 to 1835, price 11. 5s. boards. Fourth, 1835 to 1840, price 11. 10s. boards. Fifth, 1840 to 1845, price 11. 10s. boards. Sixth, 1845 to 1850, price 11. 10s. boards. Seventh, 1850 to 1855, price IZ. 10s. boards. Eighth, 1855 to 1860, price 11. 10s. boards. Ninth, 1860 to 1865, price IZ. 10s. boards. LIST OF THE ABBREVIATIONS IN THIS DIGEST. Abbreviations Beav. . Best & S. . Com. B. Rep. N S. De Gex, F. & J. De Gex, J. & S. HX. Cas. . H.:& R . Hurls. & C. Hurls. & N. Law J. Dig. Law J. Rep. (n.s.) P.O. Law J. Rep. (n.s.) Clianc. Law J. Rep. (n.s.) P. & M, Law J. RcR, (n.s.) Adm. Law J. Rep. (n.s.) Ecc. Law J. Rep. (n.s.) Bankr. Law J. Rep. (N.s.) Q.B. Law J. Rep. (n.s.) C.P. Law J. Rep. (n.s.) Exch. Law J. Rep. (N.s.) M.C. Law J. Stat. Law Rep. P.O. . Law Rep. . Law Rep. Chanc. Law Rep. Q.B. . Law Rep. C.P. . Law Rep. Ex. Law Rep. P. & D. . Law Rep. Adm. & Ecc. Law Rep. C. C. R. . Law Rep. E. & I. App. Law Rep. Sc. App. Beporls. Beavan's Reports Best and Smith . - "" Common Bench Reporls, New^eries De Gex, Fisher and Jon«s . \ De Gex, Jones and Smith-', House of Lords Cases Harrison and Rutherford Hurlston and Coltmau Hurlston and Norman Law Journal Digest. Law Journal Reports, New Ser \ Courts. Chancery. 'Queen's Bench. Common Pleas. Chancery. Chancery. House of Lords. Common Pleas. Exchequer. Exchequer. Privy Council. Chancery. Probate and Divorce. Admiralty. Ecclesiastical. Bankruptcy. Queen's Bench. Common Pleas. Exchequer. J ■ Jtaw' l*^"^^""'^ Bencbj Common I Caq s I -P'^^' ^""^ Exchequer. Law Journal Statutes .... Statutes of the Realm. Law Reports Privy Council. Equity Cases. Chancery Appeals. ...... Queen's Bench. Common Pleas. ...... Exchequer. Probate and Divorce. Admiralty andEcclesiastical. Crown Cases Reserved. /House of Lords English ■ \ and Irish Appeals. f House of Lords Scotch Ap- I ' TABLE OF TITLES. ABANDONMENT. Abandonment op Child. [See Parent and Child (C) 1.] 392 Abandonment op Railways. [See BAiLWAr ■ Company (L).] 511 ABDUCTION, 1 • ABSCONDING DEBTaRS, 1 ACCIDENTAL DEATH, 1 ACCOUNT. When an Accotint will be decreed in Equity, 1 Settled Accounts, 2 ACKNOWLEDGMENT. By married woman. [See Baron and Feme, 23-26,] 59 Ofdehts. [See Statute of Limitations.] 336 ACQUIESCENCE, 2 ACT OF GOD: [See Apprentice.] 21 ACTION. When maintainable. Money had and received, 2 On agreement to grant a lease, 3 Con Registration of transfers. Or sale after winding up, or calls le'ng due, 131 TABLE OF TITLES. Delay or neglect to register, 132 , Invalidity or mistake in transfer or regis- tration, 133 Subdivided shares, 134 Forged transfers and registrations affected by fraud, 134 Saleson the Stock Exchange. -[See No. 101; and Stock Exchange.] 134j 571 Persons who have forfeited or surrendered their shares. Where the forfeiture or surrender was made on the request of the holder: irregu- larity: acquiescence : ultra vires, 135 Where it was made or threatened to be made by the directors in exercise of their powers, without the consent of the holder,- 137 Persons who have been induced to take sliares byfraud or misrepresentation. Where there was misrepresentation in the prospectus, 138 Where there was variance between pros- pectus and articles of association, 140 In other cases, 143 Persons who have held shares as trustees or executors, 143 Persons who have held shares on condition, 144 Share held by other company, 145 Scrip cei tifcate, 146 Interest on calls, 146 Bankrupt shareholder, 146. [Addenda, 15.] Jurisdiction of Court to rectify register, 147 On amalgamation; novaiio debiti. [See Com- pany (C) 83, 89.] no Winding-dp. On resolution, 149 On petition. Hight to petition, 1 50 locus standi of opponent, 151 Order when made, 1 5 1 Priority of petitions, 152 Registration of petition of lis pendens, 152 Costs. 152 liehearingfee, 152 Jurisdiction. To wind up particular companies, 152 Discretion of Court, I 53 Proceedings against company, 154 Generally, 154 Practice. [See Addenda, 16.] Production of documents, 154 Examination of witne-ises, 155 In other cases, 155 Liquidators. [See Addenda, 17.] Appointment and removal , 155 Compro'mise by, 156 liemuneration of 157 Powers, rights, and functions, 157 Appeal, 158 Costs, 158 Effect of winding-up. Sc. fa. against shareholder. [See Addenda, 18, and Railway, 37-46.] 498 Proceedings against company or contri- butories, 159. [And see Addenda, 19.J As proof nf insolvency, 160 Debts provable in Windino-up. Secured creditors, 160 Interest, 161 Prospective claims and continuing damage, 1 62 Amalgamation, 163 Set-off and equities between the company and its creditors, 163. [See Addenda, 17.] Debenture holders, 164 Guarantee, 165 Insurance companies, 166. [Addenda, 20.] Shares in other companies, 167 Arrears of salary, 167 Deposit on application for shares, 167 COMPENSATION, 167 COMPOSITION DEEDS. Tbdst and Composition Deeds. Mequisites and form of. Assents of creditors. What assents are required, 168 Form of assent, 169 Right to inspect, 169 Peasonableness or unreasonableness of sti- pulations. Equality or inequality, 169 Arnount and nature of composition, 172 Bona fides, 173 Provisions for payment of costs, Sfc. , 173 Generally as affecting creditors' rights, 174 Schedules, form of, 175 Execution by agent, 175 Eeqistration. Necessity for, 175 Mode and effect of , 176 Time for, 176 Cancellation of, 176 Effect of the deed. As to non-assenting creditors, 176 As between joint and separate creditors, 184 Where no release of debts, 177 Asloclaimsfor unliquidated damages, 177 Acquiescence by creditor not signing, 177 As to rights of sureties, 177 Protection of the debtor from process. Nature and extent of , 173 leave to proceed against debtor when granted, 179 Pleading deed at Law, 179 Unregistered or invalid-deed, effect of, 180 Eights and duties of trustees, 181 Jurisdiction of the Court of Bankruptcy, 181 Practice. Affidavit where debtor cannot obtain assents, 182 Examination of parties, 182 Jurisdiction of the Court of Chancery, 182 Deed of Inspectorship. lieasonableness of provisions, 183 Effect of 184 Proof of debts under, 184 Pleading deed at Law, 184 Inspectors, liabilities nf, 184 COMPOSITION OF FELONY, 185 COMPROMISE, 185 TABLE OF TITLES. COMPULSION OF LAW, 185 CPMPUTATION OF TIME, 185 CONCEALMENT OF BIETH, 185 CONCEALMENT OF FACT, 185 CONCUERENT SUITS, 185 CONFIRMATION, 185 CONFIRMATION OF SALES ACT, 185 CONDITION, 185 CONFLICT OF LAWS. [See Addend*, 12.] Law of Marriage, 185 Shipping Law, 187 ' Foreign Statote op Limitations, 187 Evidence op Execution op Deed, 188 CONSPIRACY, 188 CONSTABLE, 188 CONTAGIOUS DISEASES, 188 CONTEilPT. [See Practice in Eqditt (0).] 451 CONTINGENT REMAINDER. [See Will, Construction (F) 9, (L) 8.] 616, 628 CONTRACT. Considekations for. JForbearance to sue, 188 Restraint of trade, 189 Immoral pwrpose, 189 Valid or invalid Execution : Contracts BY Corporations, 189 ClONSIKnCTION OF. In general, 189. [And see Addenda, 21.] Building contracts, 190 Government contracts : carriage of mails, 191 Warranty, 191 Right to recover, 191 Impossible Contract, 191 CONTRIBUTORY NEGLIGENCE. [See Neg- ligence.] 381 CONVERSION, 192 CONVICTION, 192 CONVOCATION. [See Church and Clehgt, 37.] 94 COPYHOLDS. Custom. Evidence of , 192 Construction of, 192 Fines ON Admission, 192 Steward. Steward's fees, 193 Authority of deputy, 193 DivSCENT AND Dfc.VJSE, 193 Enfranchisement, 194 COPYRIGHT. Proprietorship and Registration op, 194 International Copyright, M5 Copyright OF Designs, 196 Infringement AND Piracy, 196 Works of reference and compilations, 196 Photographic copies of engravings, 197 Assignment and Mortgage of, 197 CORONER, 198 CORPORATION, 198 COSTS AT LAW. Costs op Plaintiff. * Mule as to plaintiff's costs, under 19 §• 20 Vict. c. 108, 198 Sule as to plaintiff's costs, under County Court Act, 1867 (30 §■ 31 Vict. c. 142), 19S Co2 12.] l^LEADING IN EQUITY, Bill, i Title to relief, 423 Allegation of trust, 423. TABLE OF TITLES, Demuekbr, 424 Want of equity, 424 Want of parties, 424 Multifariousness, 424 Plea, 424 Outlawry, 424 Penalties and forfeiture, 425 Decree not enrolled, 425 Bankruptcy, 425 Composition deed, 425 Belease, 425 Coverture, 425 Negative plea, 425 Answer, 426 Exceptions, 426 Evasive answer, 426 PLEDGE, 426. POISON, 427 POLICE. [See Metropolitan Police.] 366 POOR. Jdstices' Jurisdiction : Order op Main- tenance, 427 Parish Oiticer, 428 Election of Guardians: Personation, 428 Appointment op Ovehseers, 428 Settlement, 428 By renting tenement, 428 Payment oj property tax, 428 Irremovable Poor. Residence conferring irremovability, 429 Break of residence, 429 Desertion by husband, 430 ^ Absence of husband, 430 Order oe Removal. Believing parish not in union under ^^5 Will. 4. c. 76, 430 Costs of maintenance after order, 430 Pauper Lunatic. Order of maintenance. Irremovability, 431 By whom to be made, 431 Appeal from, 431 Order of removal. Break of residence, 431 Appeal from, 431 PORTIONS. [See Marriage Settlement (F); Power (D>] 358; 437 POWER. Power of Appointment. Construction and validity of. Whether testamentary, 432 General power in settlement for benefit of children, 432 ^ "Family," 432 Xrusts by reference, 432 Void for remoteness, 432 Exercise of the power. Defective execution aided in Equity, 432 Exclusive appointment, 433 Excessive appointment, 433 Appointment by will under general powers, 433. [And see Addenda, 36 ] Undue exercise : fraud on power, 434 Memoteness, 434 Formalities, 435 Power limited as to time, 435 Absolute valid appointment cut down hy in' valid condition, 435 Effect of appointment. Substitutionary or cumulative, 435 Whether property becomes absolute estate of appointor, 435 Covenant to exercise: satisfaction, 436 Donees. Rights as against trustee of composition deed, 436 Taking by implication, 436 Extinguishment by release, 436 Power vested in married women, 436 Generally, 436 Power op Sale, 436 Power op Leasing, 437 Power to charge Portions, 437. [And see Addenda, 36.] Power coupled with a Duty. [See Trust, 6.] 589 PRACTICE AT LAW. Process. Service of writ of summons in substitution of personal service, 438 Order to proceed where defendant out of tke jurisdiction, 438 Appearance, 439 Declaration claiming Writ op Injunction, 439 Particulars, 439 Pleading : Service of, 439 Interrogatories. When allowed in general, 439 Ejectment, 440 Trover, 440 Breach of contract, 440 Libel and slandeT. [See Libel, 10-12; Slander, 7.] 335; 561 Tendency to criminate, 440' Answers to, when admissible in evidence, 441 Witnesses. Examination of judgment debtor, 441 Adverse witness, 441 Commission to examine witnesses, 441 Witness out of jurisdiction : ajfidavil in sup- port of subpoena, 441 Cross Demurrers: right to begin, 442 Notice op Trial, 442 Signing op Judgment, 442 New Trial, 442 Orber to proceed in poem a pauperis, 443 Stating and setting aside Proceedings. Leave to set aside nonsuit, 443 Setting aside judgment, 443 Setting aside execution, 443 Proceedings in Lord Mayor's Court, 443 Oti ground of non-payment of costs in previous action. [See Costs at Law, 35.] 202 Enlarging Time, 444 Appeal from Judge at Chambers, 444 Error, 444 Appeal, 444 TABLE OF TITLES, xxt PRACTICE IN EQUITY. [See also Company; Injukction; Jurisdic- tion IN Equity; Parties; Pleading in Equity.] Abatement. [See Revivok (II).] 458 Aehdavits. Form of, 445 Admissibility, 446 Amendment. Of bill. Written amendments, 446 Leave to amend vihen granted, 446 Amendment at hearing, 446 Waiver of irregularity in order, 447 Of concise statement, 447 Ofjpetition, 447 Answee. [See Pleading in Equity (D).] 428 Form of exceptions, 447 Leave to file supplemental answer, 447 Schedules to answer, 447 Appeal and Re-bearing. Jurisdiction-arid funi:tions of Court of Appeal, 447 Petition of appeal, 448 Appeal for costs, 448 Right to appeal: special leave, 448 Hearing of, 449 Withdrawal of, 449 Appearance, 449 Bill. [And see Pleading in Equity (A).] 423 Bill of peace, 449 Bill quia timet, 449 BiU of review, 449 Indorsement on bill, 450 Taking bill pro confesso, 450 Dismissalfor want of prosecution, 452 Taking bill off the file, 450 Certiorari, 450 Chambers: Practice in, 450 Charging Order, 450 Chiep Clerk's Certificate, 450 Conduct op Proceedings, 450 ' Consolidation op Suits, 451 Contempt, 451 What amounts to contempt, 45 1 Committal for contempt, i5\ Contempt of wife co-defendant with husband, 451 Proceedings by parlies in contempt, 451 Costs. [See Costs in Equity.] 203 Damages, 452 Demurrer. TopartofbiU, 452 Appeal from order made on, 452 Discovery, 452 Dismissal of Bill foe Want op Prosecu- tion. Right to move, 452 Order of dismissal, 452 Enquiry, 453 Evidence. Leave to read, 453 Time for filing, 453 Viva voce at hearing, 453 Digest, 1865-1870. Before examiner, 453 Wlat evidence receivable, 454. [And see Evidence, 250.] Guardian of Infant, 454 Interrogatories, 454 Issue and Trial op Pact, 454 Motions, 455 Next Friend, 455 Orders and Decrees, 455 Form of, 455 Drawing up, 455 Enrolment, 455 Service of, 456 Adding to appeal, 455 Suspending decree for delivery of chattels pend- ing appeal, 456 Varying minutes, and setting aside decree, 456 Payment into Court, 456 Payment out of Court, 456 Petitions, 457 Pro confesso: taking Bill. [See (G) 5.] 450 Production of Documents. [See that title.] 487 Receiver. When appointed, 457. [And see Addenda 22.J Committal of, for contempt, 458 Revivor. When revivor necessary, 458 Common order to revive when sufficient. ' Transmission of plaintiff's interest, 458 Death of defendant, 458 Birth of children, 458 Order nunc pro tunc, 458 Common order to revive when insufficient. On death of party, 459 Birth of children, 459 Against executor who has not proved, 459 Against infants, 459 Revivor for costs, 459 Form of order, 459 Sales and Purchases under Direction op THE Court. Of what property ordered, 459 Mode of conducting the sale, 459 Foreclosure suit: right to deposit, 460 Security for Costs, 460 Service, 460 Setting down Cause, 460 Sequestration, 461 Staying Proceedings. Pending appeal, 461 In other cases, 461 Stop Order, 462 Special Case, 462 Special Examiner, 462 Subpcena duces tecum, 462 Transfer op Causes, 462 Ward op Court, 462 Witnesses. Examination before examiner, 462 Examination of witnesses out of jurisdiction, 463 Cross-examination on affidavit, 463 c TABLE OF TITLES. Whit de vi laica eemovenda, 463 Writ of Fr, Fa,, 463 FREROGATIVE. [See Chown.] 215 PEESCRIPTIOlSr, Easement, light and air. [See Injunction, 13, 15 ; Easement, 4, 6.] 286, 287, 244 Evidence : old French law. [See Colonial Law, 3.] 97 Prescriptive title to chapel annexed to church. [See Ohdeci-i and Clekgt, 22.] 90 Public rights of navigation. [See Tolls, l.j 582 Watercourse. [See Wateecourse, 4.] 609 PBESUMPTION. Op Death, 463 Of Makeiage, 464 Age of Child-bearing, 464 In othee cases, 464 PRINCIPAL AND AGE^T. Liability of Principal for Acts of Agent, 464. [And see Addenda, 37.] AnTHORiTY OF Agent. Usage and exigencies of trade, 465 Authority to compromise, 466 Sale of real estate,, 466 Payments to and by agent : paymenf by cheque. [See Bill of Exchange, 21; Copy- HOLD, 7.] 63; 193 UiGHTS AND Liabilities of Agent. Commission, 466 Accounts, 466 Agent of non-existing company, 466 Might to sue, 466 Liability to he sued, 466 FiDnciAEY Relationship between Peinci- PAL AND Agent, 467 Marshalling, 467 PRINCIPAL AND SURETY. Construction of Guarantie. Advancement by bank, 467 Continuing guarantie, 468 Quarantie to Lloyd^s, renewal of guarantie, 468 Right of Co-sdrett to Contribution. Discharge of Surety. Wlien discharged. Cancellation of signatures. [See Company, (C) 1.] 107 Bond to perform offices, 468 When not discharged. Non- execution by principal, 469 Loss of primary security, 469 Composition deed by principal, 469 Where liability divisible, 469 Bond to perform offices, 469 PRISON AND PRISONER. Escape from prison, 470 , Alteration and repair of prison, 470 PRIVILEGED COMMUNICATION. [See Libel ; Slandee; Company (F) 55 ; Pro- duction, 4, 27—34.] 344; 561); 155; 488; 490, 491 PRIVY COUNCIL. Leave to appeal. Delay in giving bond, 471 ' In forma pauperis, 471 Appealable value, 471 Special circumstances, 47 1 Rescinding order, 471 Practice as to Appeals. Criminal cases, 471 Staying proceedings, i12 Nominal damage, 472 Embarrassing pleas, 472 Fact not brought before Court helom, 472 Questions of fact, 472 Receiver pending appeal, 473 Re -hearings, ,473 , PRIZE. {See Booty of Wae ; Marine Insu- rance, 33.] 71; 351 PROBATE AND ADMINISTRATION. JnisDiCTioN OF Court of Probate. In general, 474 Receiver, 474 Administration granted before Jan. 1858, 474 Testamentary suit. Discovery, 474 Where action brought at Law, 475 Reference to County Court, 475 Grant of Probate or Administration. To whom granted. Nominee of Crown : seaman's wages, 475 Cruardians of union, 475 Administrator of executor, 475 Creditors. Debt barred by statute, 475 When granted in other cases, 475 When refused, 475 Next-of-kin, 476 Persons not entitled, 476 Will of feme covert, 476 Passing over husband of deceased, 476 Legatee, 476 Attorney. Of person in England, 477 Of wife, husband refusing, 477 Joint grant, 417 Of what granted. Will limited to property abroad, 477 Will of realty only, 477 Codicil where will lost, 477 Two wills, 478 Will destroyed, 478 Contingent will. How far foreign grant will be followed, 478 Grant of Administration limited. To part of effects, 479 To property disposed of by will, 479 To property subject to power of appointment or other disposition by will, 479 Ad colligenda bona, 479 On decease of married woman sole executrix and legatee under a will, 479 Until next-of-kin should apply, 479 Administration pendente Lite. When granted or refused, 479 Power of administrator to irtaAe payments to residuary legatee, 480 Administrator acting under orders of Court of Chancery, 480 TABLE OF TITLES, Adshnistkation Bond. Execution, 480 Sureties. Scotch, 480 Discharge of, 480 Bond not dispensed with, 480 Assignment, 480 Leave to sue on, 480 Renunciation. Effect of renunciation, 481 Eule 50 0/1862, 481 v Witnesses. Examination as to testamentary papers, 481 Proof of will in solemn form, 481 ' Evidence to discredit, 481 Examination de bene esse, 481 Evidence. Copy of will proved in colony, 481 Copy of will proved in Russia, 48 1 Affidavit before notary public, 483 Lost will, 482 Ambiguity, 482 Testamentary intent, 482 Knowledge of contents by testator, 482 Bevocation : onus probandi, 482 JRelationship, 482 Pleadikg; Immaterial Pleas, 483 Pbactice. Affidavit as to value, 483 Citation, 483 To irinjf m probate, 483 To husband to take grant oj wife'sestate,4:S3 Of heir-at-law in testamentary suit, 483 Sealing Scotch confirmation, 483 Omission of testator's name, 483 Wrong date to will. [See Addenda, 38.] Revocation of probate, 484 Refusal to produce deed referred to in will, 484 Testamentary suits. Locus standi to oppose, 484 Caveat not warned, 484 Withdrawal of opposition : leave to in- tervene, -484 Staying proceedings, 484 Abatement, 485 Guardian ad litem, 485 Trial of issues, 485 New trial, 485 Sending cause to County Court, 48S Attachment, 485 Proctor's lien, 485 Appeal: Leave to, 485 Costs. ExeeuloT condemned in costs, 485 Heir-at-law, 486 Unsuccessful opposition of will, 486 Effect of notice under Rule 41, 486 Effect of amending declaration, 486 Revocation of probate, 487 Destroyer of will, 487 Lawful widow, 487 Peobate and Administbation DtTTV, 487 PRODUCTION AND INSPECTION OF DO- CUMENTS. Action on Polict, 487 Action foe Negligence, 488 IN EQUITY. Discovert as to Documents. Interrogatories as to, 488 As to particular document after affidavit made, 488 Affidavit as to Documents, 488 Practice in particular Cases. Inspection by witnesses, 489 Inspection by expert, 489 Defendant in contempt, 489 Cross-examination of plaintiff on affidavit in support of motion, 489 Summons for production after decree, 489 Whole document, 489 • To purchaser under sale by Court, 489 As against mortgagee, 490 As against party claiming a lien thereon, 490 In suit against company, 490 Assignee of bankrupt plaintiff, 490 Relevancy, 490 Privilege, 490 PROHIBITION, 491 PROPERTY TAX, 491 PUBLIC BODY. Power to take land, 491. [And see Addenda, 39.] Liability of land held by 'trustees for public purposes, 492 PUBLIC HEALTH AND LOCAL GOVERN- MENT ACTS. Adoption of the Act. Partial adoption, 492 Known or defined boundary, 492 Election of Local Board, 498 Rights and Powers of Local Boards, Slaughter-houses, 493 Buildings, 493 Transfer of powers, 494 Sealing resolutions, 494 Liabilities of Local Boards. Mandamus to make rate, 494 Breach of injunction, 495 Compensation, 495 By-I-aws, 495 Paving Streets. Notice to owner, 496 Liability of owner, 496 Fencing Streets, 496 Sewers, 496 GEitBRAL District Rates. ^ Valuation, 496 Land rateable, 497 PUBLIC HOUSE CLOSING. [See Albhouse, 17.] 17 PUBLIC SERVICE, 497 QUARE IMPEDIT, 497. [See CHnRCH>'ND Cleegt, 2.] 88 QUO WARRANTO. Corporate Office, 497 _ Election op Waywardens, 497 Election of Local Board of Health, 497 Discharge of Clebk of the Peace, 498 Practice, 498 c 2 TABLE OF TITLES. RAILWAY. Contracts by Railway Companies, 499 To buy ojf opposition to railway hill. 4G9 Covenant to use land for first-class station, 500 Contract as to incline of bridges, 500 Inchoate agreements between railway com- panies, 500 To construct accommodation worlis : specific performance, 500 With railway contractor : right to plant, 501 Authority to affix seal, 501 Contract by promoters j 501 Powers. Expenditure and borrowing powers, 501 Mortgage of call, 502 Acceptances, 502 Payment of dividend by shares, 502 Payment of dividend out of capital. [See Addenda, 40.] Compulsory potvers : limit of time, S^c. 502 By-Laws, 502 Aebitration: Jurisdiction of Court op Chancery, 503 Rights of unpaid Vendors. Vendor's lien. When it attaches. Unpaid purcha.^e-money, 503 Arrears of unpaid rentcharge, 504 Enforcement of lien. In suit for specific performance, 504 By sale, 504 By injunction, 504 Right of set-off, 504 Lloyd's Bonds, 505 Debenture-holders, Rights of, 505 Creditors, Rights of, 506 ■ Sci fa., 506. [And see Addenda, 18.] Writ of execution : sale, 507 Railways Clauses Consolidation Act. Diversion of roads, 507 Level crossings : negligence, 508 Repair offences, 609 Subjacent support, '509 Traffic arrangement, 509 Amalgamation of companies, 510 Scheme of Aekanqement. Rights of creditors, 510 Rights of debenture-holders, 510 Inrolment of scheme, 511 Staying proceedings against company, 511 Abandonment OF Railways, 511 Liability of Railway Company foe Acts OF Servants, 511 Liability for Negligence. In general. [See Negligence! and Railway, 49-53.] 381; 508 Neglect of duty imposed by statute, 512 Liabilities, Rights and Duties as Car- riers. [See Cauriers.] 76 Railway and Canal Traffic Act, 1854, 512 Offences: altering Signals, 512 Duties on Railway Fares. [See Revenue.] 512 RAPE. What AMOUNTS TO, 5J3 Carnal knowledge of Girl under ten, 30 [See Assault, 1, 2.] RATES. Who are rateable to the Poor. Owner or occupier,. 5l3 Incoming and outgoing tenants, 514 Promcters of undertaking, 514 What Peopbety is rateable. Beneficial occupation, 514 Tidal river : arm of the sea, 514 Moorings in river, §-c. S16. [Addenda, 41.] Gas-works, 516 Irott mines, 516 Unoccupied houses, 516 University buildings, 516 Incorporated hereditament, 516 Saleable underwood, 517 Metropolitan Board of Works, 517 Special exemptions. In favour of the Crown and public institu- tions, 517 Property of municipal corporations, 518 Land used as a i ailway under Local Go- vernment Act, 518. [Addenda, 42.] Exemption from highway rate, 518 Rateable Value and Principle of Assess- ment. Portion of a railway, 518 Net annual value : deductions, 519 Canal rented by railway company, 519 Wharves : payment of dues, 520 Titlie rentcharge .' deduction for curate's salary, 520 Artificial watercourse for working mine, 520 Lease of right of taking game, 520 To what Parish rateable, 520 Valuation List: Duty of Overseers, 520 Appeal against, 521 RECEIVER. [See Practice in Equity (HH) ; Privy Council, 17; Probate (A) 2; Com- position Deed, 122.] 457, 473, 474; 184 RECEIVING STOLEN GOODS. Nature op the Offence, 521 Partnership Goods, 521 Evidence op guilty Knowledge, 521 REGISTRATION OF DEEDS, WILLS, AND INCUMBRANCES, 522 , RELEASE. Of power of appointment. [See Power, 37.] 436 Of debt: adequacy- of consideration. [See Debtor and Creditor, 7.] 220 Plea of release in Equity. [See Pleading in Equity, 13.] 425 Plea of release with condition subsequent. [See Pleading at Law, 7.] ^1 REMOTENESS. [See Will, Construction (S) ; Power, 26.] 635, 435 RESTITUTION. Of conjugal rights. See Divorce, 24-26.] 229 Of property. [See Jurisdiciion at Law, 2.] 298 REVENUE. Customs and Kxcisb, 523 TABLE OF TITLES, Income-Tax, 523 Legacy and Succession Duty. [See Legacy Duty.] 330 Duties on Railway Fares, 523 Land-tax. [See that title.] 320 Stamp Duties. [See Stamp.] 5ri7 Probate and Administration Duty. [See Probate (N).] 487 EEVEESION, 524 EJEVIVOR. [See Practice in Equity (II).] 448 REWAITD, 525 RIVER. JRiparian owners. [See Addenda, 48; Navi- gation, 1, Watekcourse, 1.] 380, 609 RISK. [See Marine Insurance (H).] 340 ROGUE. [See Vagabond.] 598 ROLT'S ACT. [See Jurisdiction in Equity (E).] 300 SALE. Or Goods. Sale by sample, 525 Sale of specific goods : warranty, 525 Warranty of title : evidence, 526 Condition. precedent, 526 Transfer and vesting of property, 527 Cargo, 527 Evidence, 527 SALMON FISHERY ACT. Limits of District, 527 Fishing Weik, 528 Fishery Mjll-dam, 529 Fixed Engines: Immemorial Usage, 529 Instruments for Catching Salmon, 529 Appeal : Costs, 530 SALVAGE. [See Admiralty (A) 22-26, (B) 18, 19; SuippiNG (T).] U, 558 SCHEME OF ARRANGEMENT, 530. [See Railway (K).] 510 SCHOOL, 530 SCIRE FACIAS, 530 Against shareholders. [See Addenda, 18, and Railway (H)J 506 ; 499 SCOTCH EPISCOPAL CHURCH. [See Ad- denda, 43.] SCOTCH LAW. Pleading and Practice. Res judicata, 531 Seductio ex capite lecti, 531 Restitiitio in integrum, 631 Reduction of services, 531 Reference to oath. [See Nos. 5 (1) 5(2).] 531 Competency of appeal, 531 Absolute Fiar: conditional Substitution, 532 Settlement, 532. [And Addenda, 44.] Entail, 532. [And see Addenda, 45.] Prescription, 533 Jus accresoendi, 533 Charitable Trust, 533 Salmon Fishery, 533 Teinds, 533 Poor L w, 533 SEA BANK. [See Sewers; Way, 4.] 537; 610 SKDUCTION, 533 SESSIONS. Mandamus to, to enter continuance and hear appeal. [See Mandamus, 2";" Alehouse, 1.] 344, 9 Adjournment: Prisons Act. [See Prison, 2.]. 470 SET-OFF. At Law, 534 In Equity, 534 SETTLED ESTATES. Jurisdiction or Court of Chancery, 535 What are " Settled" Estates, 535 Practice. Advertisement of petition, 535 Authorising lease, 535 Examination of married woman, 536 Infant interested, 5Z% Consent of lunatic, 536 Application of proceeds of sale, 536 SETTLEMENT. [See Marriage Settlement ; Voluntary Settlement.] 354, 605 SETTLEMENT (POOR LAW), 536. [See Poor(E).] 428 SEWERS. Jurisdiction of Commissioners, 536 Award of Inclosure Commissioners, 536 Statutory Powers; Lateral Support, 537 Liability to repair Sea Bank, 537 SHELLEY'S CASE, RULE IN. [See Will, Construction (I) 14, 16, 20,21.] 622, 623 SHERIFF. Liabilities of the Sheriff. Arresting wrong person, 538 Failure to arrest, 538 Arresting bankrupt having certificate of pro- tection, 538 Escape, 538 Negligence in conducting sale, 539 Fcuse return, 539 Rights of the Sheriff. Right to file bill of interpleader, 539 Poundage, 539 SHIPPING. Bill of Lading. Excepted perils, 540 Payment of freight, 5'4 1 Indorsement of. Evidence, 542 Effect of : right to sue, 542 Evidence, 542 Delivery cf goods, 543 Pledge of, 543 Bottomry. Validity of bond. ■ Notice to owner, 544 Necessity: advances, 544 As against mortgagee, 544 Loss of ship, 544 Conflict of laws, 545 Rights of bondholder generally, 545 TABLE OF TITLES. Cargo, 545 CnAKTEK-PARir, CONSTECCIION OF. Loading of cargo, 545 Exceptions and limitation of liability, 546 Deviation, 546 Payment of freight, 546 Collision and Dasiage. Who to blame, 546 Sailing rules. Ships crossing, 547 Departure from rule, 547 Lights. [And see Addenda, 46.] 548 Limitation of liability, 548 Lim for damage, 548 Deliveky, 548 Demurrage, 548 Freight, 548 Payable before delivery, 349 Measurement, 549 Freight pi-o rata, 549 Lien. Against cargo in ship to blame for collision, 549 Freight payable in advance, 550 General Average. What is the subject of, 550, 352 Adjustment of contribution, 550 Master. Wages and disbursements, 551 Duties, 551 Authority, 551 Measurement of Tonnage, 552 Mortgage and Lien. Bight to freight, 552 User of ship by mortgagor, 553 Priority: registration, S53 Arrest. [And see Addenda, 47.] 553 Maritime lien ; foreign judgment, 554 Lien of ship's agent, 554 Bights of mortgagor, 554 Necessaries, 554 Offences, 555 Owners, 555 Pilotage. When compulsory, 555 Conflict of laws, 556 Owner's exemption- from damage caused by collision, 556 Duties of pilot, 557 Policy of " Insurance. [See Marine In- surance.] 344 Sale, 557 Salvage. Salvage agreement, 557 Salvage by tug or steamboat, 558 What constitutes salvage service, 558 Who may be salvors, 558 Amount and distribution, 558 Befusal to allow crew of salved vessel to assist, 558 Seamen's Contract : Breach, 558 Wages, 559 SIMONY, 559 SLANDER. Defamatory Words: Innuendo, 560 Privilege, 560 Proof of Malice, 560 Special Damage, 561 Practice in Action of Slander. Interrogatories, .561 CosU. [See Costs at Law.] 200 New trial, 561 SLAUGHT^E houses. [See Public Health Act (C) (a).] 492 SLAVE TRADE. [See Admiralty (A).] 8 SOLICITATION TO COMMIT FELONY, 562 SPECIFIC APPROPRIATION. [See Debtor and Creditor, 6; Bill of Exchange (K); Trustee D (/).] 68, 220, 592 SPECIFIC PERFORMANCE. What Agreements will and will not be enforced. Agreement by Utters, 562 Agreement partly performed, 562 Written contract with parol variation, 563 Agreement as to lands with collateral agree- ment as to chattels, 563 Agreement to make and maintain u. road and wharf, 563 Charter-party, 56;5 Agreement for partnership, 563 Agreement for personal services, 563 Agreement to purchase at valuation, 564 Agreement to purchase shares, [See Stock Exchange.] 571 Agreement to pay increasing rate of interest, Generally, 564 Grounds for refusing Specific Per- formance. Want of mutuality, 564 Mistake, misrepresentation and inadequacy of consideration, 564 Doubtful title, 563 Delay, 565 Purchaser in possession : bad title, 565 Right to Specific Performance with Abatement or Compensation, 566 Practice. Discovery, 566 Payments into Court, 566 Bankruptcy or inability to complete of defend- ant purchaser, 566 Beturn of deposit, 566 Damages, 567 Objection to title on reference, 567 Parties. [See Parties (B) (C).] 414 SPECIFICATION. [See Patent (B).] 411 STAMP. Agreement, 567 Conveyance, 567 Settlement, 567 Mortgage or Transfer, 568 Lease, 568 Bill of Exchange, 568 STANNARIES COURT, 569 Jurisdiction under Companies Act, 1862. [See Company (F) 37.] 152 STATUTE. CoSSTBUCTION OF. TABLE OF TITLES. Private Estate Act, 569 Local Harbour Acts, 569 Compulsory purchase of land, 570 Australian Bank Act, 570 Incobpokation op genekal Acts, 570 Eetkospective Enactment, 571 Eepeal, 571 ■ Ee-enactment, 571 Mistake: Eepugnanct. [See Kate, 24; County Codrt, 2).] 578 and 198 STOCK EXCHANGE. Sale of Shares. Mights of vendor as against the broker or jobber, 571 Rights of vendor as against ultimate vendee, 573 Pledge of Shares, 575 STOP-ORDER. [See Practice in Equity (QQ).] 462 STOPPAGE IN TRANSITir. To WHAT Property the Right extends, 576 Duration of Right, 576 What constitutes delivery of goods, 576 Effect of indorsement of bill of lading, 577 SUNDAY, 577 SURRENDER. [See Lease, 15.] 325 TENANT E0R LIEE. Eights and Liabilities of Tenant for Life, 577 Apportionbient of Profits, &c., betweem Tenant for Life and Remainderman. As regards real estate, 578 As regards personal estate, 578 TENANTS m COMMON AND JOINT TENANTS, 580 TENDER, 580 TENURE, 580 THEATRE, 580 THELLUSSON ACT, 580 THREAT. Threatening to accuse of an abominable Crime, 581 Master and Workmen, 581 TITHE. Remedy by distress, 581 Generally, 582 TOLL, 582 TO'^k IMPROVEMENT ACT. [See Public Health Act, 6, 20 ; Nuisances, 16.] 493, 496; 390 TEADE, 583 TRADEMARK. What constitutes a Trade-Mark, 583 Eights in, 583 Infringement, 583 What constitutes, 583 Right to relief: •misrepresentation, 683 TEANSEEE. Of Mortgage. [See Mortage. ] 369 Of Shares. [See Company (E).] 122 TREASON, 684 TREES, 584 \ TRESPASS, 584 TEOVER, 585 TRUCK ACT, 685 TRUST AND TRUSTEE. Trust. Constitution: declaration of trust, 536 Construction : precatory trust. ,[See Will, Construction (K).] f)24 Discretionary trust, 586 Constructive trust. [See Trust (D) (e); Vendor AND Purchaser, 35.] 591; 604 Specific performance of voluntary trust, 587 Breach of Trust. Acquiescence, 587 Liability in respect of, 587 Recovery of misapplied trust funds, 588 Investment op Trust Funds. What investments are proper, 589 Liability of trustee for proper investments, 589 Trustee. ^ Acceptance of trustee, 590 Appointment of, by Court of Chancery, 590 Powers, rights, and duties. [See Trust (B), (a) and (c) (a).] 587; 589 Conflicting interests, 589 Enfranchisements of leaseholds, 590 Mortgage or pledge, 591 Sights to indemnity, 591 Liabilities. [See Trust (B) (i) and (C) (i).] 586, 589 Notice to, 591 Specific appropriation. [See Bill op Ex- change, 38, 39; Debtor and Creditor, 6, 7.] 67; 220 Trustee Relief Act. Rights and liabilities of party paying money into Court, 592 Costs. Jurisdiction, 592 Insurayice company, 592 Whether payable out of corpus or income, 592 Payment out, 593 Trustee Act. Appointment of new trustees, 593 Who is a " trustee," 593 Vesting order. In cases of lunacy or unsoundness ofmind,594 Copyholds, 594 Stock in name of deposed foreign govern- ment, 594 Appointment of person to conviy, 594 Service to petition, 594 Costs, 594 TRUSTEE ACT. [See Trust and Trustee (F).] 593 TRUSTEE RELIEF ACT. [See Trust and Trustee (E).] 592 TURNPIKE. Exemptions from Toll. Clergyman on parochial duty, 595 Stores for the use of troops, 595 Manure, 595 Volunteers, 595 , Threshing machine, 595 SXXll TABLE OF TITLES. Application op Tolls, 595 TuENPiKD Tkustees, 595 Powers, 595 Duties, 596 Eepaijj out of Highway Rates, 596 Oepences. -Horses straying vpon turnpike-road, 596 Leaving carriage on road, S96 UNION ASSESSMENT, 597. [See Pook.] 427 UNDUE INFLUENCE. . Attorney and Client, 597 Trustee and Cestui que Tkust, 597 In genekal, 597 USURY, 597 VACCINATION, 597 VAGABOND, 598 VENDOR AND PURCHASER. Conditions op Sale. Easement, 598 Restrictive covenants, 598 Suppression : misrepresentation, 599 Arbitration clause, 599 Deposit. Forfeiture of, 599 Beturn of, 599 Time fob Completion. , Exercise of option, 600 Time of the essence, 600 Title. Commencement of title, 600 Sale under Court, 601 Malafides, 601 , Lien. Vendor's, 601 Purchaser's on purchase-money prematurely paid, 601 Rescission of Contect. Ey vendor, 601 By purchaser, 601 Setting aside Sale : Sitppeessio Veei by puechaser, 603 Inteeesi : Expenses : Outgoings, 603 pueohasee. Eight to sue at Law, 603 Duty of, to inquire, 603 - Constructive notice to, 604 Conveyance to, 604 Sub-purchase ; notice to vendor, 604 VENIRE DE novo. [See Felony, 2.] 262 VENUE, 604 VESTRY, 605 Notice for holding, 605 Legal proceedings at, 605 VOLUNTARY SETTLEMENT. When effectual, 605 Validity as against Creditors, 605 Validity as against Purchaser, 606 Construction of Fines on Leases, 606 Setting aside. Improvidence, 605 Absence of power of revocation, 606 Undue influence. Onus probandi, 607 Confirmation by setter : delay, 607 Inadequacy of consideration, Sfc, 607 WAGES. [See Shipping (V).] S59 WARRANT, 607 WARRANTY, 607 WARREN, 608 WASTE. [See Tenant for Life (A) ; Tenant IN common.] 577, 580 WATERCOURSE, 608 Obstruction by riparian owner : right to ali-eus. [See Addenda, 48; Nuisance, 15-17.] 390 Diversion of artificial branch of natural stream, 905 Obstruction: liability of owner for wrongful acts of stranger, 906 Eights by prescription, parliamentary contract, and special agreement, 906 WAY. Construction of Grant of Wat-leave : Right to Royalty, 609 Reservation till Lessor should alienate, 610 Excess of User, 610 Right of Way over Sea Wall, 610 WEIGHTS AND MEASURES, 610 WEST INDIAN ESTATES, 610 WILL. CONSTRUCTION OF WILL. General Principles of Construction, 612 Parol Evidence of Intention, 612 Contingent Will, 612 Will in Execution of Power, 612 Descriptions of Property. To what period referable, 613 What they comprise. [And see Addenda, 49.] '• Estate," %\^ "Real estate": leaseholds, 613 " Personal property, estate and effects," 614 "Freehold," 614 " Copyhold," 614 "Money," "ready money," "money due," §-c., 614 " Appurtenances," 614 Falsa demonstratio, 615 Lands in particular parish or street, 615 c Money to be produced by estate sold before legatee's death, 615 Residuary and general Devises and Be- quests. What they comprise. Where residuary legatee is also' specific de- visee, 615 Trust and mortgage estates, 615 What words carry the residue, 616 Residuary devise ; whether specific, 6 1 6 Ambiguity and Uncertainty. When bequest void for uncertainty, 616 Misdescription of legatee, 616 Inconsistency, 617 Charitable bequest, 617 TABLE OF TITLES. Parol evidence . when admissible 617 Misdescription in codicil of gift in will, 6 J 7 Who take. Charitable bequests, 618 Gifts to a class. Time of ascertaining members, 618 " Chddren." Who comprised in gift to, 618 Illegitimate children: when included or excluded, 618 •' Nephews and nieces," 619, Personal representatives, 619 " JVext-of-Tiin," 619 '■ Heirsi" 619 Wife and children of son. [See Legacy, 5 ] 326 Whether trustees, ^-c, take beyieficialli/, 620 Per capita or per stirpes, 620 What- Estate passes. Joint tenancy or tenancy in common, 620 Fee simple or less estate. Devise before Wills Act, without words of limitation, 620 Devise subsequent to Wilts Act, 622 Estate of trustees, 622 Sule in Shelley's case, 622 Absolute bequest cut down, 622 Estates tail or life estate. Devises to sons, 623 " Die without issue," 023 " Children" : whether word of purchase or limitation, 623 Estates by implication, 624 ' , Cy-pres, rule of, 624 Absolute gift or trust, 624 " Soel," 624 Pkecatohy Trusts, 624 Vesting : Gift over. " Vested"; meaning of word, 635 Gift over on -death before legacy or share pay- _. able, 625 Gift over before receipt of legacy, 625 Gift over on death without leaving children, 626 ' Gift over on death without issue, 626 Cross-remainders implied, 626 Gift with clause of forfeiture, 626 Direction for payment at given, age, 627 Gift of income for'maintenance of class, 627 Gift over on death of devisee under twenty-one, 527 Gift over before estate " veste'f," 627 Gift in defeasance of estate tail, 628 '^ And" where to be read "nm;" 628 Hotchpot clause, 628 Substitution akd Survivorship. Substitution in testator's lifetime. 628 Substitutional gifts to children. [Se3 Will (L) 20.] 627 First gift impossible. [See Markiage Set- ti.emekt, 9.] 356 Whether children must survive parent, 629 Gift to children of a class per capita, 629 Digest, 1865-1870. Meaning of "survive," 629 Period of survivorship, 629 Gifts to children and their issue, 629 " With benefit of survivorship," 630 Gifts to survivors of a class after tenancies ,for life, 630 '• Surviving" when read " other ', 630 Survivorship between co-tenants for life, 631 Accrued shares, 631 CoNDiTiONAr^ Gift, 631 Restriction on Alienation, 632 Secret Trust for Charity, 632 Executory Gift, 632 Trusts by reference to other Tbusts. Devise subject to the same conditions as other property. 633 Exclusion of party otherwise entitled, 633 limitations of personalty by reference to realty, 633 Limitation of one share by reference to trusts of other share, 634 Eemotbness,'633. [And see Addenda, 50.] Particular Words and Phrases, 635 VALIDITY OF WILLS AND REQUI- SITE FORMALITIES. CoJlPETENCY OF TeSTATOH. Animus disponendi, 636 Undue influence, 636 Mental incapacity, 636 What Papkks are Testamf.ntary, 636 Incorporation of ex-testamentary Papers INTO Will. What papers will be held incorporated, 637 What will not, 638 Execution. Signature not seen by witnesses, 638 Place of signature, 639 Seaman's will, 640 Lex loci, 640 Mistake in date, 640. [And see Addenda, 38. ] A TTESTATION. What is sufficient, 640 Incapacity of attesting witnesses under 1 Vict. c. 26, i. 15, 641 Alteration And Interlineation, 641 Will op Feme covert, 641 Kevocation and Revival of Will. What amounts to revocation, 641 Dependent rtlative revocatipn, 642 Memorandum of revocation admitted to pro- bate, 642 What will effect a revival, 642 Revocation by marriage, 643 Losr Will. [See Probate (B") 30, 32; (H) 46.] 474, 482 WITNESS. [See Divorce (0); Evidence (A); Practice AT Law (G) ; Practice in Equity(WW) ; Probate (G).] 234, 250, 441, 462, 481 WRONGFUL DISMISSAL. ' [See Admiralty (A) 2.] 9 d AN ANALYTICAL DIGEST OP THE CASES REPORTED AND PUBLISHED From Trinity Term 1865 to Michaelmas Term 1870, AOT) CONTAINED IN THE LAW JOURNAL EEPOETS, ■WITH EBFERBNCES TO STATUTES PASSED WITHIN THE SAME PERIOD. ABANDONMENT. AbandoQment of Child. [See Parent and Child (C) (a).] Abandonment of Railways. [See Railway Company (L).] ABDUCTION. The prisoner met in the street a girl, under the age of sixteen years, and persuaded her to go with hun to a neighbouring city. He there seduced her, and afterwards, on the same day, accompanied her back, and parted with her in the street where he had met her. The girl lived with her parents at home, and immediately returned there. The pri- soner made no inquiries, and had no knowledge whether the girl's parents were even living or not, but he did not believe she was a prostitute : — Held (Pigott, B. dubitante), that there was no evidence that the prisoner had taken the girl out of the possession of her father within the meaning of the 24 & 25 Vict. i;. 100, s. 65, and the conviction, founded upon that section, was quashed. The Queen V. Hubert, 38 Law J. Rep. (n.s.) M. C. 61 ; Law Kep. 1 C. C. R. 184. ABSCONDING DEBTORS. The arrest 0^ facilitated by 33 & 34 Vict. c. 76. Digest, 1865-70. ACCIDENTAL DEATH. Action by Representatives of Deceased. [See Pleadino at Law, 6.] ACCOUNT. (A) When an account will be decreed in EauiTT. (B) Settled accounts. (A) When an account wlll be deceeed in EouiTY. 1.— Previously to the year 1833, the Clerk of the Patents received the fees paid by the patentees for his own use, but by an Act passed in that year he received a fixed salary, and was required to hand over all the fees to the Exchequer : — Held, that he was liable to account to the Crown in Equity in respect of such fees, and in respect of all interest and profits made by the use of them, and that an information for this purpose was properly filed in the Court of Chancery. The Attorney General v. Edmunds, 37 Law J. Rep. (n.s.) Chanc. 706 ; Law Rep. 6 Eq. 381. 2. — The assignee, not of a trust fund, but of sup- posed past profits derived from the trust fund, can- not sustain a bill against the trustees for an account and payment, although the assignor, the cestui que trust, could sustain such a bill. Hill v. Boyle, Law Rep. 4 Eq. 260. B ACCOUNT- ACTION (A). 3. — A patentee granted a machine-maker the sole right of making looms at a royalty of 30?. per loom, the manufacturer to charge the public not more than 651. per loom. The manufacturer sold looms at more than 651. and refused to account for the excess : — Held, that the patentee's remedy was nt law ; and that he could not maintain a suit in equity for account, or for discovery, the character of the agency not being such as to constitute a trust. Moxon V. Bright, Law Eep. i Chanc. 293. 4. — Some of the joint-owners of a ship, acting as managers on behalf of the owners genera;lly, fur- nished supplies for the voyage : — Held, that they were entitled to sue for an account of the transac- tions between themselves and the other owners. Tanner Y. Frost, 39 Law J. Eep. (n.s.) Chanc. 626. Against representatives of husband, holding over after wife's death. [See Adminis- TEATION, 2.] Against agent of usurping sovereign. [See Inteenational Law, 2.] Against executors. [See Pieadins in Equity, 19.] Against trustee. [See Plbadinq in Equity, 16.] Against committee of lunatic. [See Lunacy, 9.] Interest on debts. [See Paetnebship, 11.] Colonial law: account by executor. [See CoLONiAx Law, 23.] Farliamentar}/ grant. _ [See Pleabins in Equity, 2.] Principal and agent. [See Principai and Agent, 6, U, 15.] Wilful default — mortgagee in possession. [See MoHTGAGB, 37.] (B) Settled accounts. [See MoBTOAQE, 37 ; Peaotice in Equity (BB) 8.] ACT OP GOD. [See Appebntice, 1.] ACKNOWLEDGMENT. Bi/ married woman. [See Baeon and Feme.] Of debts. [See Statute of Limitations.] ACQUIESCENCE. The principles of equity with reference to the rights which may arise touching the expenditure of money by tenants or others in building upon another's land upon the faith or expectation of having a permanent interest therein, with the knowledge and acquiescence of the landlord or his agent, fully discussed. Mamsden v. Byson, Law Eep. 1 E. & I. App. 129. In breach of covenant. [See Covenant, 10.] In breaches of trust. [See Teustee (B) 1 , 2, (C) 5, (D) 1 ; Company (E) 108, 124.J In nuisance. [See Nuisance, 4.] ACTION. (A) When maintainable. (a) Money had and received. (5) On agreement to grant a lease. (c) Contract for personal services. (d) Mistake in telegraphic message. (e) Might to flow of water. If) Eight to lateral support, (g) By stranger to contract. {h) Against foreigner resident abroad. If) In other cases. (B) Notice of Action. (ffi) Statutory acts. (C) FoEM OF Action. (A) When maintainahlb. (a) Money had and received. 1, — By an agreement made between the plaintiff and the defendant, the defendant sold to the plain- tiff all his interest in a certain farm, together with the growing crops and those already harvested, the covenants, and general valuation of the farm, and all the stock, both live and dead : and it was agreed between them that all the aforesaid matters and things should become a subject of valuation by two indifferent persons, one to be chosen by each party, and in the event of their not agreeing, then by their referee or umpire, whose decision should be final and binding on both parties. The valuers appointed under the agreement made a valuation at a gross sum, not specifying the value of un- divided items, and the plaintiff gave a promissory note for the amount, and took possession of the farm and stock. In a month or two afterwards the plaintiff re-sold the farm, and before giving up possession to the purchaser discovered that a number of items had been included in the valua- tion which, according to the custom of the country, did not form a subject of valuation between an in- coming and outgoing tenant. He did not, how- ever, claim to have the matter re-opened, but duly paid the amount of the promissory -note to the defendant when it afterwards became due. He subsequently brought an action against the de- fendant to recover the whole of the money paid by him as money received to his use, without pre- viously giving any notice of the circumstances to the defendant, or.claiming repayment from him: — Held, that he could not recover the whole or any part of the money which he had paid. Freeman V. Jeffries, 38 Law J. Eep. (n.s.) Ex. 1 16 ; Law Eep. 4 Ex. 189. Per Kelly, C.B., Martin, B. and Pigott, B. — The decision of the valuers concluded the plaintiff. Ibid. Per Kelly, C.B,, and Martin, B.— The plaintiff had taken possession and had had the , benefit of the subject-matter of the sale, and by his own sub- sequent conduct had rendered it impossible to rectify the valuation or restore the parties to their original position; under such circumstances, the ACTION (A).' defendant having received the money bonA fide, it was inequitable that he should be obliged to re- fund. Ibid. Per Martin, B. and Bramwell, B. — The mistake being known to the plaintiff only, he could not recover without notice of it to the defendant. Ibid. Per Kelly, C.B.— The plaintiff having paid the note with full knowledge of the facts, was not en- titled to recover. Ibid. 2. — The plaintiff, to whom the defendant had given a bill of sale of his goods as a security for a debt, with the usual power of sale, having upon default taken possession of the goods under the bill of sale, voluntarily and without being re- quested to do so by the defendant, allowed the goods to remain on the defendant's premises for three months, until rent had accrued due to th& defendant's landlord, who then distrained for such rent, and the plaintiff paid the same to free the goods from the distress : — Held, that this was not such a payment by compulsion as would entitle the plaintiff to recover it from the defendant as money paid to his use, without an express request by the defendant to make it. England v. Marsden, 3.5 Law J. Hep. (n.s.) C. P. 259 ; H. & R. 560 ; Law Eep. 1 C. P. 529. (6) On agreement to grant a lease. 3. — An agreement to grant a lease contains an implied undertaking on the part of the intended lessor that he has title to grant such lease ; and if he has not, he is liable to an action at the suit of the intended lessee. StranJcs v. St. John, 36 Law J. Eep. (n.s.) C. p. 118; Law Kep. 2 0. P. 376. (c) Contract for personal services. 4. — An engineer was appointed to construct certain works, which it was calculated would occupy fifteen months, and was to be paid for his services during that period the sum of SOOi. by, equal quarterly instalments. Shortly after the end' of the third quarter he died, two of the quarterly instalments then remaining unpaid: — Held, that although his death put an end to the contract for the future, it did not divest the right of action for those instalments which had already vested in him, and his administrator was therefore entitled to recover them, and not merely upon a quantum meruit for the value of the amount of work actually done. Stubbs v. The Holywell Sail- way Company, 36 Law J. Eep. (n.s.) Ex. 166; Law Eep. 2 Ex. 311. [And see Appeentice, 1.] (d) Mistake in telegraphic message. 5.— The plaintiff, having a cargo of ice on board a ship at Grimsby, telegraphed to E & H, at Hull, asking them to make an offer for it, and re- questing them to send an answer by telegraph. E & H sent to the office of the defendants, a telegraph company, a message for transmission to the plaintiff, by which they offered to take the cargo at IZs. per ton. In the reading of the message at the defendants' office in London, a mistake was made in the figures, and the telegram sent to the plaintiff represented the offer as Being %1s. instead of 2Ss. per ton. The plaintiff there- upon, in acceptance of the supposed offer, ordered the ship to proceed to Hull ; she arrived there, but E & H refused to receive the cargo, except at 23s. per ton. The plaintiff brought an action against the defendants to recover damages in respect of the injury which he had sustained by reason of the mistake : — Held, that the defendants were not liable, the obligation upon them to use due care and skill in the transmission of the message arising out of contract, and there being no contract between them and the plaintiff. Flay- ford V. The United Kingdom Telegraph Company, Limited, 38 Law J. Eep. (n.s.) Q. B. 249; 10 Best & S. 759 ; Law Eep. 4 Q. B. 706. (e) Eight to flow of water. 6. — An individual inhabitant householder of a district may maintain an action against one who infringes a customary right common to the in- habitant householders of such district, without proving actual damage to himself personally by reason of such infringement, where the acts dona by the person infringing such right would, if re- peated and continued, be evidence of the existence of a right in such person, in derogation of the right of the inhabitants of the district. Harrop V. Hirst, 38 Law J. Eep. (n.s.) Ex. 1 ; Law Eep. 4 Ex. 43. The principle laid down in the notes to Mellor V. Spateman, 1 Wms. Saund. 346 b, viz., " that wherever any act injures another's right, and would be evidence in future in favour of the wrongdoer, an action may be maintained for an invasion of the right without proof of any specific damage," approved and followed. Ibid. The inhabitant householders of a certain district were entitled by custom to the flow of water to a spout in a public highway, and the use of such water, for domestic purposes, in their habitations. A riparian proprietor, through whose land the water flowed on its way to the spout, on various occasions diverted the water so as sensibly and materially to diminish the flow, and various in- habitants of the district were on such occasions inconvenienced by failing to obtain water at the spout when they wanted it. The plaintiffs, who occupied a house in the district, brought an action against tlie riparian proprietor for an infringe- ment of their right; but the jury found, on the trial, that the plaintiffs had not personally sus- tained any actual inconvenience from the want of water: — Held, that the action was, nevertheless, maintainable. Ibid. Obstructing flow of water, [See Watbe- COUBSE, 3.] (/) Sight to lateral support. 7. — In order to entitle the owner of land to succeed in an action against a neighbour for exca- vating near his boundary, it is necessary that appreciable damage should have been caused thereby. Smith v. Thackerah, 35 Law J. Eep. (n.s.) C. P. 276 ; H. & E. 616 ; Law Rep. 1 0. P. 564. 8. — The owner of a piece of land of a wet and spongy character, in the neighbourhood of a town, conveyed a portion of it to the plaintff, with a b2 ACTION (B), (C). Btipnlation that buildings of a certain aggregate' Talue should be erected upon it. He subsequently conveyed the remainder of the land to persons from whom it came to church trustees, who em- ployed the defendant to build a church on it. To obtain a firm foundation for the church, the defen- dant was obliged to excavate to a considerable depth, the effect of which, from the spongy nature of the soil, was to drain off not only the water in the land on which he was excavating, but that in the plaintiffs land, and to cause the plaintiffs land and certain cottages, which he had built on it without draining it, to subside and crack. His land would have subsided even if it had not been weighted with cottages. The defendant was guilty of no negligence or unskilfulness : — Held, that the defendant was not prevented from draining the land by any general principle of law, nor by any covenant in the plaintiffs favour on the part of the common grantor of the lands, to be implied from the doctrine that a man cannot derogate from his own grant. Popphwell v. Hodgkinson, (Exch. Ch.), 38Law J. Eep. (n.s.) Ex. 126; Law Eep. 4 Ex. 248. [g) By stranger to contract. 9. — A Mutual Marine Insurance Association appointed a manager, not a member, and em- powered him to sue for sums payable by the mem- bers for premiums and contributions : — Held, that the manager, as being a stranger to the considera- tion, could not maintain an action against a mem- ber for premiums, nor for moneys paid by the manager for such member, out of the funds of the association. Gray M.Pearson, Law Eep.5 C. P. 568. (A) Against foreigner resident abroad. [See Phactice at Law, 6.] (i) In other cases. By auctioneer for price of goods. [See Auction, 6.] For injury to hankrwpfs estate, with special damage to bankrupt : splitting cause of action. [See Ealse Eepkesenta- TION, 1.] For necessaries supplied to wife. [See Baron akd Feme, 18-21 ; Evidenceb, 17.] On promissory note. [See Bill of Ex- CHANOE, 33.] Fornon-repairofhighway.[See'SiBswA.Y,2.'] Against banker for disclosing state of ac- count. [See Banking, 12.] For tort committed in colony. [See Colo- nial Law, 21.] For permissive waste against personal re- presentatives of deceased incumbent. [See Chuboh and Cleeot, 6.] On covenant to repair. [See Covenant 18, 22.] Completion of contract prevented by acci- dent. [See CoNTEAOT, 16.] Slander : negligence : trespass : trover. [See thosa titles.] (B) Notice of action. (a) Statutory acts. 10.— The defendant contracted with the Metro- politan Board of Works to make a new sewer to the satisfaction of the engineer of such board, and in the course of carrying out such contract the defendant made a dam across the old sewer to keep back the sewage, and unintentionally neglected suficiently to pump out the sewage, so that on three separate occasions it entered the plaintiff's house and injured it: — Held, that the defendant was entitled to notice of action, under 25 & 26 Vict. c. 102, 8. 100, as the injury complained of was the result of " an act done or intended to be done under the powers of such board," by a " con- tractor acting under their direction," within the meaning of such section. Poulsumy. TTiirst, 36 Law J. Eep. (n.s.) C. p. 225 ; Law Eep. 2 C. P. 449. 11. — A person who has received notice from a Local Board of Health to drain his house, and in course of doing so commits a trespass by laying the drain-pipe in the land of another person, who thereupon brings an action against him, is not entitled to notice of action under s. 106 of 25 & 26 Vict. c. 102. JDoust v. Slater, 38 Law J. Eep. (n.s.) Q. B. 159 ; 10 Best & S. 400. 12.— The 18thsection of the Metropolitan Build- ing Act, 1865, provides that no process shall issue against " any district surveyor or other person for anything done or intended to be done " under the provisions of the Act, unless there be a month's notice of action, and the action be brought within six months. The defendant, a builder, was em- ployed by the building-owner of land adjoining the plaintiff's house (within the metropolitan district) to do building work for him, in performing which the defendant negligently undermined and under- pinned the plaintiff's party-wall, and occasioned damage to the plaintiff's house thereby. In an action for such damage, — Held,^that the defendant did not come within the words " other person," and was not entitled to notice of action, or to have such adtiou commenced within six months. Wit- Hams V. Golding, 35 Law J. Eep. (n.s.) C.P. 1 • H. & E. 18 ; Law Eep. 1 C. P. 69. 13. — Where a statute provides that before an action is commenced against any person for any- thing done in pursuance of the statute notice of action shall be given, in order to entitle a defen- dant to such notice, on the ground that "he honestly believed in the existence of those facts which, if they had existed, would have afforded-a justification under the statute," the facts of the case must at least be such that he could so ho- nestly believe, and such as to afford evidence to go to the jury that he did so. Leete v. Hart, 37 Law J. Eep. (n.s.) C. P. 157 ; Law Eep. 3 C. P. 322. Under 26 # 26 Vict. c. 102, s. 106. [See Mastek and Servant, 7.] (C) Fokm of action. 14. — By certain local acts power was given to trustees to purchase land to make a road, paying the owners a rent; land was so acquired from the plaintiffs predecessors, and a rent paid for it till 1863 ; in that year, by the Metropolis Eoads Act, 1863, so much of the road as was within any of certain parishes was to be maintained, &c., by ADMINISTEATION OF ESTATE IN CHANCERY (A), (D). that parish, "and all quit rents and other out- goings payable in respect thereof" to be paid as part of the expense of maintaining the same. Part of the land acquired from the plaintiff's an- cestors was in the defendants' parish : — Held, that an action lay for the rent, but that only a propor- tionate part of the rent could be recovered from the defendants. Sanson v. The Vestry of St. Leonard, Shoreditch, 38 Law J. Rep. (n.s.) C. P. 286; Law Rep. 4 C. P. 654. [And see Teovee.] ADMINISTRATION (1) OF ESTATE IN CHANCERY. (A) Right to stju. (a) Suit by creditor. (6) By annuitant. (c) Suit for mesne profits. (B) What debts may be claimed : pkioeity. (C) Peoof by CEEDrroE who has beceived ASSETS. (D) Lbgai, A2TO Equitable assets. (E) Mabshailing assets. (a) As between devisee of mortgaged estate and personalty. (b) As between, specific and residuary de- visees of mortgaged estates. (c) As between pecuniary legatee and resid- uary devisee. (F) Residbaey legatee. (a) Loss or deficiency of assets. (6) Refunding moneys overpaid. (Gr) Peactice. [All specialty and simple contract debts of de- ceased persons to stand in equal degree from 1 st January, 1870. 32 & 33 Vict. c. 46.] (2) IN COUBT OF PBOBATE. (1) OF ESTATE IN CHANCEBY. (A) Right to sub. (a) Suit by creditor. 1. — A creditor, who had proved his debt against the estate of a deceased person, under an adminis- tration decree obtained at the suit of another creditor against the executor, filed a new biU on behalf of himself and all other unsatisfied credi- tors of the testator against the executor and a person, not a party to the previous suit, who had purchased part of the assets from the executor, the bill charging connivance between the executor and the purchaser, and seeking relief in respect of the purchase-money, no misconduct being alleged against the plaintiff in the previous suit: — Held, on demurrer, that the bill could not be maintained. Earle v. Sidebottom, 37 Law J. Rep. (n.s.) Chanc. 503. (6) Sy annuitant. [See Annuity.] (c) Suit for mesne profits. 2, — A, after the death of his wife, continued by mistake in receipt of the rents of real estate to which she was entitled for life. Demurrer to a bill by the persons entitled to the property after the death of A's wife against the personal repre- sentative of A, for an account of the rents and pro- fits received by him since the death of his wife, and, if such representative did not admit assets, for an account, and for delivery up of title deeds, overruled. Caton v. Coles, 35 Law J. Rep., (n.s.) Chanc. 836 ; Law Rep. 1 Eq. 581. Such a bill is not within the rule laid down in Whitchurch v. Golding, 2 P. Wms., 641 ; [See Mitford on Pleading, 6th edit. 66] requiring an affidavit to be annexed to the bill. Ibid. (B) What debts may be claimed : peioeity. 3. — The Court is not bound, on behalf of an ab- sent party in an administration suit, to disallow claims barred by the statute where the personal representative and the other parties interested who are before the Court are desirous of waiving the objection. Alston v. Trollope, 35 Law J. Rep, (n.s.) Chanc. 846 ; 36 Beav. 466 ; Law Rep. 2 Eq. 205. 4. — ^After decree in a creditors' suit for adminis- tration, the Statute of Limitations cannot be set up to defeat the plaintiff's debt. Adams v. Waller, 35 Law J. Rep. (n.s.) Chanc. 727. 5. — By a Scotch deed of entail, carrying out a testamentary settlement, lands were settled upon the respondent, F, in tail ; and it was declared, according to the direction of the settlor, that the lands were to be held "with and under the burden of payment of all the just and lawful debts of the settlor due at his death, which debts should in no- wise affect or diminish his executory or other funds, property, and effects." F was the general dis- ponee of the settlor's personal estate : — Held, (dis- sentiente Lord Kingsdown), that the real estate was only liable to the payment of the debts due at the death of the settlor, and not the costs of litigation paid by F in resisting unfounded claims. Lovat V. Eraser, Law Rep. 1 H. L. (Sc.) 24. Priority of judgment for debt. [See Judg- ment, 3.] Distribution by executor after notice given as directed by 22 ^ 23 Vict. c. 35, s. 29. [See ExECUTOE, 31.] Mortgage to bank. [See Banking, 4.] (C) Peoop by ceeditoe who has eeceived assets. 6. — A person who has received money belonging to an estate, against which he seeks to prove as creditor, must pay the amount received into Court before his claim, if disputed, can be heard. Steven- eon V. Marriott, 39 Law J. Rep. (n.s.) Chanc. 568. (D) Legal and EauiTABLE assets. 7. — The equity of redemption of a mortgage in fee of copyholds is made legal assets by statute, 3 & 4 Will. 4. c. 104. In re Burrell ; Burrell v. Smith, 39 Law J. Rep. (n.s.) Chanc. 544; Law Rep. 9 Eq. 433. 6 ADMINISTRAIION OF ESTATE IN CHANCERY (E). (E) Marshalling assets. (a) As between devisee of mortgaged estate and personalty. 8. — A testator (before Locke King's Act) having two estates subject to the same mortgage, made a specific devise of one|and a residuary devise of the other: — Held, that the residuary devise being specific, both estates must bear the mortgage debt rateably. Gibbins v. Eyden, 38 Law J. Eep. (n.s.) Chanc. 377; Law Eep. 7 Eq. 371. 8. — M granted a Scotch estate to his son, imder the burden of the payment of a mortgage debt secured upon andther estate belonging to M in England. The grantor died domiciled in England. By his will, he appointed executors ; directed pay- ment of his just debts, as soon as conveniently might be after his death ; and devised the mort- gaged estate to the grantee of the Scotch estate : — Held, that the grantee must bear the burden of the mortgage debt in question ; and that the testa- tor's general personalty was exonerated therefrom. Smith V. Moreton, 37 Law J. Eep. (n.s.) Chanc. 6. 10. — A testator made a specific devise of certain real estate, which was subject to a mortgage debt, and he declared that his personal estate should be liable for debts. He then made a general devise of residuary and real estate. The personal estate of the testator was not sufficient to cover the debt : — Held, that having regard to Locke King's Act, the mortgaged estate was only exonerated tc the extent of the personalty according to the ex- pressed intention of the testator, but the residuary real estate was not liable for the mortgage debt. Eodhouse v. Mold, 35 Law J. Eep. (n.s.) Chanc. 67. 11. — J N, by his will, made in 1836, directed payment of his debts by his executors. He after- wards purchased lands which he mortgaged, and as to which, in 1868, he died intestate. The mort- gage was subsisting at his death : — Held, that the heir was not entitled to have the mortgage debt paid out of the personal estate. Nelson v. Page, 38 Law J. Eep. (n.s.) Chanc. 138 ; Law Eep. 7 Eq. 25. 12. — The deceased owed a sum of 400^. on a promissory note, which was also secured by an equitable mortgage by deposit of title deeds " as collateral security" to the promissory note, and of the same date : — Held, the case was within Locke King's Act, and that the words "as collateral security" did not shew a contrary intention. Coleby v. Coleby, Law Eep. 2 Eq. 803. 13. — A testator, after directing his debts to be paid, devised his real estate in strict settlement. During minorities the trustees were out of the rents and profits to keep down the interest on any mortgage debts. He bequeathed his residuary per- sonal property to his next-of-kin : — Held, that the real estates were not to be exonerated from the mortgages on them at his death at the expense of the personalty. Coote v. Lowndes, 39 Law J. Eep. (n.s.) Chanc. 887 ; Law Eep. 10 Eq. 376. 14. — A domiciled Englishman, being entitled to an estate in Scotland called G, executed in the Scotch form a trust disposition and settlement of his e^ate G. Subsequently, he made and executed his will in English form, in which, noticing the previous settlement of the G estate, he declared his intention that the provisions of his will should be construed and take effect so as not in any man- ,ner to aflFect his G estate, &c. And he gave the residue of hie real and personal estate to trustees to sell and convert, and to pay all his debts, legacies, &c. Subsequently, he borrowed a large sum of money on a heritable bond, which charged .the G estate as well as himself personally : — Held, .the charge on the G estate was to be paid out of the residuary real and personal estate. Maxwell V. Byslop, Law Eep. 4 Eq. 407. 15. — A testator domiciled in England, entitled to an estate in Scotland, by will, made in English form, left his residuary real and personal estate to trustees in trust for sale ; and he directed all his just debts to be paid out of the proceeds. He had previously executed a trust disposition, equiva- lent to a wiU, of his Scotch estate, and he expressly declared that the provisions of the will should not affect that estate. He'subsequently borrowed 14,000/. on mortgage of the Scotch estate : — Held, that the 14,000Z. came within the direction to pay debts, and that the residuary real and personal estate was primarily liable to pay that debt in exoneration of the Scotch estate. The rule that costs shonld follow the event of an appeal does not hold in an appeal properly brought in a suit which is necessary for the ad- ministration of the estate. In such a case, costs will be given out of the estate. Maxwell v. Max- well, 39 Law J. Eep. (n.s.) Chanc. 698 ; Law Eep. E. & I. App. 506. (i) As between specific and residtiary devisees of mortgaged estates. 16. — A testator having two properties. Black- acre and Whiteacre, subject to one mortgage, made a specific devise of Blackacre and a residuary devise of Whiteacre: — Held, that Whiteacre must exone- rate Blackacre from the mortgage debt. Brownson V. Lawranoe, 37 Law J. Eep. (n.s.) Chanc. 351 ; Law Eep. 6 Eq. 1. A direction by a testator that his debts shall be paid " out of his estate " is not such a sufficient sig- nification of a contrary intention within the 17 & 18 Vict. c. 113, as to exonerate a mortgaged estate from the burden of tlie mortgage debt, although a direction to pay "out of his personal estate " may be so. Ibid. Woolstencroft v. Woolstencroft, 2 De Gex, F. & J. 350; 30 Law J. Eep. (n.s.) Chanc. 22, and£»o v. Tatham, 32 Law J. Eep. (n.s.) Chanc. 311, recon- ciled. Ibid. (c) As between pecuniary legatee and residuary devisee, 17. — Pecuniary legatees are entitled as against residuary devisees to stand in the place of an un- paid vendor whose purchase-money has been paid out of the testator's personal estate. Lord Idlford V. Powys Kech, 35 Law J. Eep. (n.s.) Chanc. 302 ; 35 Beav. 77 ; Law Eep. 1 Eq. 347. 18. — A residuary devise of real estate is specific in its nature, and the doctrine of law in this respect has not been altered by the Wills Act, 1 Vict. c. 26, s. 24. Consequently, a general pecuniary legatee has ho right to marshal the assets against ADMINISTEATION OF ESTATE IN CHANCERY (F). r a residuary devisee. Hmsman v. Fryer, 37 Law J. Eep. (n.s.) Chanc. 97 ; Law Eep. 3 dhane. 420. But a residuary devisee is not entitled to te in a better position than a pecuniary legatee ; and wlierethepersonalassets are insufficient for the pay- ment of debts, the two must abate rateably. Ibid. A testator by will, dated in 1851, gave all his personal estate, not specifically bequeathed, and the proceeds of certain real estate directed to be sold, to trustees for payment of his debts (includ- ing mortgage debts), funeral and testamentary expenses, and a legacy of 50?., and directed the surplus to be held in trust for his grandson if he should attain the age of twenty-one, but if he should die under that age, then in trust for his grand-daughter if she should attain that age. After making a, specific devise of a messuage in favour of his grandson, he devised aU the residue of the real estate to the same grandson, charged in manner thereinafter mentioned, and gave to his wife an annuity of 120Z. charged on the heredita- ments lastly thereinbefore devised to his grandson, and bequeathed a legacy to his grand-daughteif. The mixed fund proved insufficient for the payment of debts. Upon a suit for administra- tion, — Held, affirming the decision of one of the Vice Chancellors (36 Law J.Eep. (k.s.) Chanc. 7*5 ; Law Eep. 2 Eq. 627), that the legacy of 2,0002. was not charged upon the real estate. Ibid. Held also, reversing the decision of the same Vice Chancellor, that Qie legatee was not entitled, in respect of her legacy, to marshal against the residuary real estate to the extent to which the debts had exhausted the personal estate, but that the legatee and residuary devisee must contribute pro ratd, to satisfy the debts of the testator, which the general personal estate was insufficient to pay. Ibid. 19. — The ]a.st case not followed. Pecuniary legatees have no right of marshalling against or to contribution from a residuary devisee whfere the residuary personal estate, after payment of debts, proves insufficient to pay the legacies. Collins v. Lewis, Law Eep. 8 Eq. 708. 1 20. — L mortgaged real estate for l,500i. By a subsequent deed, reciting the transfer of the pre- vious mortgage, L charged the premises subject thereto together with other real and personal estate with the payment of the original debt, and the further sum of 9602. in which he was then in- debted to the transferee, all the mortgaged property being subject to one proviso for redemption upon payment of the whole debt. Upon the death of L, intestate, — Held, as between the heir-at-law and administrator, that the 950?. must be ap- portioned rateably between the real and personal estate comprised in the second deed ; but that there was no merger of the first mortgage, the real estate comprised therein remaining primarily liable for the 1,500?. Lipscomb v. Lipscomb, 38 Law J. Eep. (n.s.) Chanc. 90; Law Eep. 7 Eq. 601. 21. — Direction by codicil of testatrix, that certain debts incurred by her for her son-in-law should be exclusively, and in the first instance, borne by the moiety of her real estate devised to his wife and children by her will: — Held, that the codicil amounted to an express exoneration of the per- sonal estate of the testatrix. Forrest v. Prescott, Law Eep. 10 Eq. 645. 22. — Marshalling applied infavour of charitable legacies, in accordance with a direction in the will, and the same principle applied in favour of the charity as to a pro rat4 division of the residue of real and personal estate amongst the legatees. GasHn v. Sogers, Law Eep. 2 Eq. 284. 23. — Testatrix having under her husband's will a power of appointment over 5,000?., as part of his residuary estate, appointed the fund upon certain trusts, with a gift over, subject to a power of appointment given to her two nieces to the extent of 1,000?. each. One of the nieces exercised her' " power. The residuary estate proved insufficient to pay the full amount of 5,000?. : — Held, that the appointee of the 1,000?. had no claim to priority against those entitled to the residue of the fund, and that all must abate proportionately. Miller v. Huddlestone, 37 Law J. Eep. (n.s.) Chanc. 421 ; Law Eep. 6 Eq. 65. (F) Eesiduabt eesatEe. {a) Loss or deficiency of assets. 24. — A testator bequeathed a sum of stock to his executors, subject to his debts, upon trust to pay the dividends to his wife for life, and at her death to sell the capital, and out of the proceeds to pay certain legacies which would exhaust about one- half of the fund, and he made A his residuary legatee. Thirty years before the death of the tenant for life, the stock, not being wanted for the payment of debts, was set apart in accordance with the wiU. Shortly before the death of the tenant for life, the administrator of the last sur- viving trustee, who~in that capacity had control over the stock, misappropriated a part of it r — Held, reversing a decision of Vice Chancellor Malins ( 36 Law J. Eep. (n.s.) Chanc. 819), that the loss arising from this misappropriation must fall upon the residuary legatee. Baker v. Farmer, 37 Law J. Eep. (n.s.) Chanc. 820 ; Law Eep. 3 Chanc. 537. 25. — Testator by will gave a pecuniary legacy for purposes on failure whereof it was to fall into the residue. By codicil he directed that if his estate were insufficient (which happened) the legacies given by him (of which there were several) should abate proportionably. On the failure of the pur- poses for which the above legacy was given, — IJeld, that it must be applied in the fiirst instance in making good the abated legacies. In re Lyn^s Estate ; Sands v. I^ne, Law Eep. 8 Eq. 482. (A) Refunding moneys overpaid, 26. — In a suit by a residuary legatee for the ad- ministration of the testator's estate, the Court has jurisdiction to compel the residuary legatee to refund assets overpaid to him by the executor before the suit, to pay the legacies of legatees who are not parties to the suit. Prowse v. Spurgin, 37 Law J. Eep. (n.s.) Chanc. 251 ; Law Eep. 6 Eq. 99. In an administration suit, instituted by a residuary legatee more than "twenty years after the testator's death, the Chief Clerk's certificate found that certain legacies remained unpaid ; and, 8 ADMINISTEATION OF ESTATE IN CHAJSTCEEY (G)— ADMIRALTY. ' by the order on further consideration, liberty was given to any person claiming to be entitled to the legacies to apply as to their payment. The lega- tees, who were not parties to the suit, having; applied under the order for payment of their legacies : — Held, that the residuary legatee was precluded by the certificate and order from setting up the Statute of Limitations. Ibid. 27. — When one residuary legatee, or one of the next-of-kin, has not received an amount larger than his share of the assets existing at the time of payment made to him, the subsequent waste of the assets by the executor or administrator does not render himliableto refund. Peterson v. Peterson, SeLawJ.Eep. (N.s.)Ch. 101; LawEep.3 Eq. 111. When one residuary legatee, or one of the next- of-kin, is called upon by another to refund, on the ground of overpayment, the burthen of proof that the amount received was in excess of his share of the assets existing at the time of payment lies upon the person requiring the money to be re- funded. Ibid. [See also Legacy, 24; Tenant fob Life, 14.] (G) Practice. 28. — Executors who had neglected to produce their accounts deprived of their costs of suit up to the hearing. Gresham v. Price, 35 Beav. 43. 29. — Personal estate was given by will to alargo number of legatees. The executors and trustees, after deducting 10?. from each share to form an indemnity fund against certain possible claims, paid off the adult legatees, and invested the share of each infant legatee in his name and theirs jointly. A general release, to which the accounts were scheduled, was then executed by all the adult legatees. Some years after this a bill for the ad- ministration of the estate was filed by six of the infant legatees, their next friend being the mana- ging clerk of their solicitor, acting at the request of their father, who had executed the release. The result of the accounts was to shew that the suit was not for their benefit:— Held, that the next friend was entitled to his costs ; that the fund for pajrment of costs consisted of the in- demnity fund and the undistributed shares of all the infant legatees ; but that any residuary legatees who had been paid, including the trustees, asking for costs, should bring in the shares which they had received ; and (the trustees taking large shares, and being therefore unwilling to bring them in) that any surplus remaining sbould be paid to the trustees towards their costs. Gravatt v. Tann, 38 Law J. Eep. (n.s.) Chanc. 459 ; Law Eep. 7 Eq. 436. 30. — A person who has obtaineda creditor's order for administration of a testatrix's estate in the Palatine Court of the Duchy of Lancaster, and who is neither party to a suit in the High Court for the same purpose, nor has proved his debt under an administration order therein made sub- sequently to the order in the Palatine Court suit, is a mere stranger to the High Court suit ; and a motion made by a person so circumsta,nced in the High Court suit to stay proceedings therein, on the ground of the order made in the Palatine Court suit was refused, with costs, upon the ground of his being such stranger. Bradley \r, Stelfox; In re Yates, 3 De Gex, J. & S. 402. 31. — To a bill for the administration of real and personal estate, and for the appointment of a receiver and a new trustee, a plea in bar, by the alleged executors, that they had been prevented proving by the plaintiff's entering a caveat in the Court of Probate, was overruled. Tempest v. Lord Camoys, 35 Beav. 201. Distribution of assets: creditors abroad. [See Practice in EatriTT (PP) 5.] Jurisdiction on summons. [See Pbacticb IN EauiTT (I).] Amendment of bill at hearing. [See Practice in Eotjitt (C) 9.] Costs. [See Costs in Equity, 12, 13, 15; Practice IN Equity (E) 14, and supra, 28.] (2) IN COURT OF PROBATE. [See Exbcutoe; Probate.] ADMIRALTY. (A) Jurisdiction. (a) Generally. (6) Criminal. (c) Appellate. (d) Wages. (e) Damage and collision, (/ ) Salvage. (g) Booty of war. (B) Pt.eadino. (C) Practice. (a) Appeals. (1) To the Sigh Court of Admiralty. (2) To the Privy Council. (J) Amendment. (c) Interrogatories. (d) Inspection of docv/ments. (e) Damage and collision. (/) Salvage. Qj) Restraint. {K) Sale at suit of mortgagee. (i) Bottomry suit. (k) Sooty of war. (D) Costs. (a) Security for costs, (b) Proctor's lien. (c) In general. (E) CotONiAi, Ordinance : Customs : For- feiture. (F) Vice Admiralty Court : Seizure. [Admiralty Court, Ireland, see 30 & 31 Vict. c. 114, s. 4.] [Vice Admiralty Courts. 26 & 27 Vict. e. 24 amended, 30 & 31 Vict. c. 45.] [Admiralty Acts repealed 28 & 29 Vict. c. 112 ; amended 31 & 32 Vict. c. 78. Admiralty stores, 30 & 31 Vict. c. 719 ; Admiralty jurisdiction, County Courts, 31 & 32 Vict. c. 71 ; 32 & 33 Vict. c. 51.] (A) Jurisdiction. (a) Generally. 1. — The ship Eicardo Schmidt, being an Italian merchant ship, of 600 registered tons burden. ADMIRALTY (A). having on board a considerable outward cargo of palm oil and other goods fit for African trade, and satisfactory ship's papers, but having also a large number of empty casks, some clean' and some which had been used for carrying palm oil, was seized, by an oificer of the Royal Navy, under the provisions of the 6 Geo. 4. c. 113, s. 43, in the harbour of Sierra Leone, as a vessel equipped for the slave trade. In the suit in the Vice Admiralty Court of the colony, for the purpose of obtaining a sentence of condemnation, the Judge decreed the vessel to be restored ; but refused to award costs, under section 35 of that statute, on the ground that the 8 & 6 Will. 4. c. 60, which embodies the Slave Trade Treaty between Great Britain and Sardinia, provides that no compensation shall be granted to the master or owner of any vessel seized having on board an unreasonable number of water-casks or other vessels for-holding water : — Held, that the statute 5 & 6 "Will. 4. c. 60, is not applicable to the seizure of a foreign ship in British waters, but applies only to captures of foreign vessels on the high seas ; and that conse- quently the Judge was not at liberty to take into consideration the circumstance of there being an unreasonable number of water-casks on board as a fact, per se, to justify seizure, but that he could only take that fact in conjunction with all the other circumstances of the case ; and that under aU the circumstances of the case, there was no probable cause to justify seizure. Casanova and others, appellants. The Queen and Ihmlop, respon- dents. The Eicardo Schmidt, 36 Law J. Rep. (n.s.) P. C. 1; Law Rep. 1 P. C. 115. 2. — The High Court of Admiralty has jurisdic- tion to entertain a claim by seamen for wrongful dismissal and the consequential damages. The Great Eastern, 36 Law J. Rep. (n.s.) Adm. 15 ; Law Rep. 1 kdm. & Ecc. 384. 3. — The High Court of Admiralty had, even when its jurisdiction was more restricted, autho- rity to decree possession of a vessel to the pwner, who had been depriYed of it by force, violence, or fraud. The Beatrice, otherwise The Bafpakan- nock, 36 Law J. Rep. (n.s.) Adm. 9. The Government of the United States of Ame- rica is not entitled to the possession of, a vessel partly purchased by the late Government of the Confederate States, without satisfying the vendors' lien for the unpaid portion of the purchase-money. Ibid. 4. — The carrying on trade with a blockaded port is not a breach of municipal law nor illegal so as to prevent a Court of the loci contractiis from en- forcing the contract of which the trade is the subject. The Hden, 36 Law J. Rep. (n.s.) Adm. 2 ; Law Rep. 1 Adm. & Ecc. 1. A neutral State is not bound by the law of nations to impede or diminish its own trade by municipal restrictions. Ibid. The only decisions of legal tribunals by which the Court of Admiralty is bound, are the decisions of the House of Lords, the Privy Council, and the Courts of Common Law in the interpretation of a Statute. Ibid. 5.^ — The High Court of Admiralty has jurisdiction Digest, 1865-70. to entertain an action and to assess damages in respect of personal injuries done by a ship. The Sylph, 37 Law J. Rep. (n.s.) Adm. 14 ; Law Rep. 2 Adm. & Ecc. 24. A claim for personal itgury done by a ship was referred to an arbitrator, with a condition reserving the claimant's rights and remedies in case the award should not be performed. The arbitrator awarded iWl., which, had not been paid: — Held, that under the circumstances the claimant had not barred himself of his right to sue in the Admiralty Court. Ibid. 6. — In a cause between co-owners under 24 & 25 Viet. c. 10, s. 8, and against freight which was de- tained by the Dock Company pursuant to a stop order served by defendant, the question was whether Ahe proceedings were to be in personam or in rem (section 35). The Court ordered a monition against the Dock Company tb bring in the freight ; and proceedings against the defendant in personam. The Meggie, Law Rep. 1 Adm. & Ecc. 77. 7. — One who has parted with his shares in a vessel may nevertheless sue for the accounts as to her earnings while he was a co-owner. Motion to reject the petition dismissed, but without costs. The Lady of the Lake, 39 Law J. Rep. (n.s.) Adm. 40; Law Rep. 3 Adm. & Ecc. 29. County Court jurisdiction. [See County CouET, 16.] (i) Criminal. 8. — The criminal jurisdiction of the Admiralty of England extends over British ships, not only on the high seas, but also in rivers, below the bridges, where the tide ebbs and flows, and where great ships go, though at a spot where the mimicipal authorities of a foreign country might exercise concurrent jurisdiction, if invoked. The Queen v. Anderson, 38 Law J. Rep. (n.s.) M. C. 12. A foreigner was convicted of manslaughter at the Central Criminal Court, committed on board a British vessel, in the river Garonne, within the boundaries of the French Empire, about 35 miles from the sea, and at a spot about 300 yards from the nearest shore, within the flow and ebb of the tide ; and the conviction was held right, inasmuch as it was a place within the jurisdiction of the Admiralty of England, which that Court had jurisdiction to try under 4 & 5 Will. 4. c. 36, s. 22. Ibid. [And see Shipping (O).] (c) Appellate. 9. — County Courts exercising Admiralty juris- diction cannot, as such, entertain a claim for neces- ■ saries supplied either to a vessel in her own port, or when an owner of the vessel is domiciled in this country. The Dowse, 39 Law J. Rep. (n.s.) Adm. 46 ; Law Rep. 3 Adm. & Ecc. 135. Semble — That the High Court of Admiralty may exercise an appellate jurisdiction in a matter over which it has no original jurisdiction. Ibid. Semble also, that it has an appellate jurisdiction over the Court of Passage at Liverpool. Ibid. 10. — Cross-causes of damage heard together in a County Court are, as to the right of appeal, to be C la ADMIBALTY (A). considered distinct. The EUzaheth, 39 Law J. Eep. (n.s.) Adm. 63 ; Law Rep. 3 Adm. & Ece. 33. Plaintiffs in a cause of damage in the County Court claimed lOOl., and recovered an amount under 601. : — Held, that no appeal lay from the County Court to the High Court of Admiralty. Ibid. [And see (A) 24 and 26 infra.] {d) Wages. 11. — ^Where a ship is arrested in a suit it is irregular for the plaintiff to pay the wages without obtaining the consent of the Court, and the Court will not in future in such a case make an order that the wages should be repaid out of the proceeds of the ship. The Court will never refuse its consent to the payment of wages, to save the expense of keeping the men, and will order such wages to be recouped to the party paying, out of the proceeds. The Cornelia Henrietta, Law Eep. 1 Adm. & Ece. 51. 12. — The High Court of Admiralty has no juris- diction to adjudicate upon a mate's claim for wages paid to the crew, and necessary disbursements Ttiade by him in foreign ports. The Victoria, 37 Law J. Eep. (n.s.) Adm. 12. 13. — Section 10, of the Admiralty Court Act, 1861, enacts that " the High Coart of Admiralty shall have jurisdiction over any claim by a seaman of any ship for wages earned by him on board the ship, whether the same be due under a special contract or otherwise, and also over any claim by the master of any ship for wages earned by him on board the ship, and for disbursements made by him on account of the ship." The Admiralty Eules, 1859, provide, by rule 10, that "in a wages cause against a foreign vessel, notice of the institution of the cause shall be given to the consul of the State to which the vessel lielongs, if there be one resident in Lon- don": — Held, that the object of this section was to extend the jurisdiction which the Court had in the ordinary case of wages under a special con- tract, and of disbursements on account of the ship. Charles La Blache, appellant, Jaime Sabino Eangel, respondent. The Nina, 37 Law J. Eep. (n.s.) Adm. 17 ; Law Eep. 2 P. C. 28. Held also, that the High Cotirt of Admiralty has jurisdiction, under section 10 of the above statute, to entertain a suit for wages against a foreign ship, the words of the Act being "any" ship ; but that the Court ought not to exercise jurisdiction without first giving notice to- the consid of the nation to which such ship belongs. Ibid. The protest of a foreign consul does not ipso facto operate as a bar to the prosecution of the suit ; but the Court ought to determine according to its discretion, judicially exercised, whether, having regard to the reasons advanced by the consul, and the answers offered on behalf of a claimant, it is fit and proper that the suit should proceed or be stayed. Ibid. The appellant (a British subject) having shipped on board a Portuguese ship as mate, and having signed an agreement to be bound by the law of Portugal which required him to submit all dif- ferences between the master and seamen to the Portuguese consul, arrested the ship, and insti- tuted a suit against the owners in the High Coiirt of Admiralty in England for wages, whereupon the Portuguese consul entered ^ protest against the proceedings : — Held, affirming the judgment of the Judge of the High Court of Admiralty, (Law Eep. 2 Adm. & Ece. 44) that the suit ought to be dismissed, and the ship released ; but without costs. Ibid. (e) Damage and, collision. 14,_The Court of Admiralty has no jurisdiction to entertain a suit for money advanced to the master of a ship, unless it was to be applied for the pur- chase of necessaries. A suit for money advanced to pay averages in respect of a collision, dismissed without costs. The Aaltje Willemina, Law Eep. 1 Adm. & Ece. 107. 15.— The Admiralty Court Act, 1861, by section 7, provides "that theHigh Court of Admiralty shaU have jurisdiction over any claim for damage done by any ship." The respondent sued the appeUants' ship for personal injury done to himself by a col- lision, alleged to be caused by the unskilful navi- gation of the appellants' ship: — Held, that the section of the Admiralty Act included personal injury. The owners of the steamship Beta, appel- lants, V. Toussaint Eollando, respondent, 38 Law J. Eep. (n.s.) Adm. 50; Law Eep. 2 P. C. 447. 10. — The petition alleged that a master who was owner of a vessel had wilfully, improperly, and frau- dulently inj ured and abandoned her. She was subse- quently taken into port by salvors ; and the plaintiffs, the owners of cargo, were compelled to pay salvage to get possession of their cargo,, and its delivery was consequently delayed. The master and vessel were both foreign : — Held, that the allegation " fraudu- lently " should be struck out of the petition', that the Court had jurisdiction over the cause under 24 Vict. e. 10, s. 6, and that the plantiffs might sue the ship in the Admiralty Court for constructive damage to cargo. The Princess Eoyal, 39 Law J. Eep. (n.s.) Adm. 43 ; Law Eep. 3 Adm. & Ece. 41. 17. — The High Courtof Admiralty has jurisdic- tion in a suit by the representative of a deceased, for injury to the latter by collision between two vessels. The Guldfaxe, 38 Law J. Eep. (n.s.) Adm. 12 ; Law Eep. 2 Adm. & Ece. 325. 18. — TheN and M came into collision, and the M was sunk. Cross-causes of damage were instituted, but had not been heard, nor the liability for the collision determined, but the owners of the N paid into Court the amount of their liability as limited by statute: — Held, that the Court had jurisdiction in a suit for limitation of liability, even though the N had been sunk, and therefore could not be arrested, notwithstanding 24 Vict. u. 10, 0.13; that the Court could grant an injunction to restrain actions at common law in respect of the same col- lision ; and that actions at common law, for the loss of goods damaged by the collision might be restrained, even though the goods were to be carried partly by sea and partly by land. The Normandy, 39 Law J. Eep. (n.s.) Adm. 48 ; Law Eep. 3 Adm. & Ece. 152. 19. — In suits for limiting the liability of thp owners of a wrong-doing vessel the Court has jiy^is- ADMIRALTY (A), (B). 11 diction if bail has been given by her owners, even though no arrest has actually taken place. The Northv/mbria, 32 Law J. Eep. (n.s,) Adni. 24 ; Law Eep. 3 Adm. & Ecc. 24. 20. — Aship's anchor got entangled with an elec- tric cable, and the cable was cut by order of the master : — Held, that under the circumstances the master was guilty of a want of nautical skill, ^nd that the Court had jurisdiction to entertain a suit against the ship. Ship condemned in damages and costs. The Clara Killam, 39 Law J. Eep. (n.s.) Adm. 50; Law Eep. 3 Adm. & Ecc. 161. 21. — The Admiralty Court has jurisdiction over every possible case of damage by collision of a ship. Therefore held, that where a ship dragged her anchor and damaged a breakwater by coming in collision the Court had jurisdiction. The TJhla, 37 Law J. Eep. (n.s.) Adm. 16 note. Collision of vessd in tow. [See Shipping (E) 6.] (/) Salvage. 22.— The High Court of Admiralty, and- the Admiralty Court of the Cinque Ports have both jurisdiction over claims for salvage where the value of the property saved does not exceed 1,000^, The Jeune Pawl, 36 Law J. Eep. (n.s.) Adm. 11 ; Law Eep. 1 Adm. & Ecc. 336. 23. — The Court's jurisdiction in salvage depends upon the value of the property at the time when it is brought into a place of safety by the salvors. The Stella, 36 Law J. Eep. (n.s.) Adm. 13; Law Eep. 1 Adm. & Ecc. 340. 24. — When in a claim for salvage, heard before magistrates, the sum in dispute exceeds 50^., the High Court of Admiralty has jurisdiction to enter- tain an appeal, even though the value of the pro- perty salvedis under l,000i. The Generous, 37 Law J. Eep. (n.s.) Adm. 37 ; Law Eep. 2 Adm. & Ecc. 57. The Court will not, except for special reasons, admit new evidence on the hearing of an appeal from an award of magistrates. Ibid. ■ Semble — " The sum in dispute " (mentioned in the section of the Merchant Shipping Act, 1854, with reference to appeals) does not mean the sum awarded by the magistrates. Ibid. 25. — ^Where a vessel had been arrested in two causes Of salvage, which upon motion by consent of all parties had been consolidated, and a petition was afterwards filed, a motion by defendants to dis- miss the suit with costs and damages, as the value of the property saved was under 1, 000^., was rejected with costs. The Herman Wedel, 39 Law J. Eep. (n.s.) Adm. 30. Semble — Under the County Courts Admiralty Jurisdiction Act, 1868, the High Court of Admi- ralty may in its discretion take cognisance of salvage suits when the value of the property saved is under 1,000/. Ibid. 26. — Although a party who seeks, by appeal fo the Judicial Committee, to increase or diminish the remuneration awarded in the discretion of a Judge before whom a case of salvsige is brought imderi takes a difficult task, yet the Judicial Committee will diminish as weU as increase the quantum of salvage, where the amount awarded is exorbitant or manifestly excessive. The owners of the ship Chetah, appellants, v. The owners,master and crew of the vessel Annie Grant, respondents. The Dublin and other steamers, appellants, The owners of the ship Chetah, respondents, 38 Law J. Eep. (n.s.) Adm. 1 ; Law-Eep. 2 P. C. 206. [And see infra (C) 24.] (g) Booty of war. [See BooTT op Wab.] (B) Pleading. 1. — The party against whom a judgment is given in the Admiralty Court is entitled to know from the complaint of his adversary what is the default imputed to him, in order that he may have an opportunity of meeting the case by his defence.* Inman v. Eeck — The City of Antwerp, theFriedrich — 37 Law J. Eep. (n.s.) Adm. 25 ; Law Eep. 2 P. C. 25. 2. — In a cause of necessity a transferree of a prior mortgage defended, and denied that the necessaries were ordered on his credit or that of the owners of the vessel. Plantiffs article in reply merely alleged that the master ordered the necessaries, and that at the time the persons entitled as mortgagees were in possession of the vessel. Articles rejected on the grounds of vagueness, and on the ground that a mortgagee in possession would not be liable unless the master, in ordering the necessaries, was acting as the agent of the mortgagee, and an allegation that the master was impliedly authorized to order them is not sufficient.. The T'roubadour, Law Eep. 1 Adm. 302. 3. — In a cause of damage, the plaintifls alleged the damage to be imputable solely to the acts of the owners of the and their servants, which aver- ment the defendants, the owners, traversed. At the hearing it was proved that the damage was caused.by one acting not within the scope of his authority from the owners : — Held, that such a de- fence should have been specifically pleaded; though the petition was dismissed, the defendants were not entitled to their costs. The Orient, 39 Law J. Eep. (n.s.) Adm. 8. 4. — To a petition alleging that the ship M had been for some time close-hauled on the starboard tack, and that the W N on the port tack came into collision with her, the answer admitted that the "W N was close-hauled on the port tack, and alleged that the M was seen on the port tack, distant about a, mile : —Held, that the defendants were bound to allege what was subsequently done on board the W N and before the collision, and the mode of the collision. The Why Not, 38 Law J. Eep. (N.s.) Adm. 26 ; Law Eep. 2 Adm. & Ecc. 265. 5.— On appeal from the Admiralty Court in a case of collision by drifting, between two vessels origi- nally at anchor, the statement in the defendants' answer in the Court below as to - the bearing of their vessel in respect to the other when at anchor, yaried from the proof : — Held, that the statement as to the bearing of one vessel in respect of the other was immaterial, and'was therefore not necessary under the Admiralty Eules, 1859, No. 67, and that the variance was therefore immaterial. Fairfooty.-Chalwin — The Bopita and the Alice— S8 L iw J. Eep. (n.s.) Adm. 20; Law Bep. 2 P.O. 214 c2 12 ADMIRALTY (B), (C). 6. — In a cause of damage to cargo, the plaintiffs alleged that oil-cake was not delivered in good order according to the termi of the biU of lading, and also that there was a breach of the contract in the bill of lading, or that the damage was caused by the negligence or breach of duty of the master or crew : Held, that the plaintiffs were not bound to set forth the particular acts or the character of the negligence which caused the damage. The Freedom, 38 Law J. Eep. (n.s.) Adm. 25 ; Law Eep. 2 Adm. & Ecc. 346. 7. — The inchoate right of a ship-builder to en- force his lien on a ship, when such ship may happen to be under arrest, is such a right as may be as- signed by him : — Held, therefore, that although after such an assignment, the ship-builder exe- cuted a creditor's deed, under 23 & 24 Vict. e. 134, s. 192, and the ship was subsetjuently arrested, the ship-builder could sue as a trustee for his assignee. The Wasp, Law Eep. 1 Adm. & Ece. 367. Collision suit. [See Shipping (E).] (C) Practice. (a) Appeals. (1) To the High Cowt of Admvrdlty. 1. — On a motion for leave to adduce fresh evidence before the hearing of the appeal, of matters which had occurred since the hearing of the cause in the Court beloy, it appeared that, the fresh evidence sought to be admitted might have been adduced at the hearing in the Court below, if application had been made to postpone the hearing, but that no such application was made. Their Lordships therefore refused to admit further evidence, and dismissed the motion, with costs. The masters and crews of the ships Alicia Annie, and Aminta, v. The owners of the ship Seindia. The Saindia, 35 Law J. Rep. (n.s.) P. C. 53 ; Law Rep. 1 P. C. 241. 2, — In appeals from County'Courts, the High Court of Admiralty will not generally allow further appeals, except: — 1. When the law applicable is doubtful or novel; 2. When the Court has doubts as to the correctness of its decision ; 3. When the pecuniary interests at stake are large. The Samud Laing, 39 Law J. Eep. (n.s.) Adm. 42;' Law Eep. 3 Adm. & Ecc. 284. [See supra (A) 24, and infra (C) 23.] (2) To the Privy Council. 3. — The Judicial Committee will not interfere with the discretion exercised by the Judge of the Admiralty Court in awarding compensation for salvage service, unless the difference between the amount awarded and the amount due in the judg- ment of the Judicial Committee is very con- siderable. Frendeville v. The National Steam Navigation Company. The England, 38 Law J. Eep. (n.s.) Adm. 9 ; Law Rep. 2 P. C. 253. 4.— The old rule that, in the case of salvage of a derelict ship, the salvors were entitled to a moiety of the- value of a derelict, does not now prevail ; and the fact of the ship being derelict is only to be considered as an ingredient in the degree of danger in which the property was. An appellate Court is reluctant to differ on the quantum of ' reward for salvage services from the Court below, it being a matter of discretion ; still it will do so where justice has not been attained. The True Blue, Law Rep. 1 P. C. 260. [And see supra (A) 26.] (6) Amendment. 6. — To entitle a party to amend an error in a decree, the mistake should be brought to the notice of the Court with the utmost possible diligence. The Orient, 39 Law J. Eep. (n.s.) Adm. 10. Application to alter a decree five months after the decree was made, rejected. Ibid. 6. — In the praecipe to institute the cause the plaintiffs stated the suit as one of " damage to cargo," and the affidavit to lead warrant alleged that plaintiffs had sustained damage by breach of duty and breach of contract. After the arrest of the ship and appearance entered on behalf of her owners, a motion to amend by striking out of the praecipe to institute the words " damage to cargo," and substituting the words " breach of duty and breach of contract on the part of the master and crew," was granted on payment of the costs occa- sioned by the mis-statement in the praecipe. The Princess Royal, 39 Law J. Eep. (n.s.) Adm. 29 ; Law Eep. 3 Adm. & Ecc. 27. [And see infra (C) 16.] (c) Interrogatories. 7. — The practice of the High Court of Admiralty as to interrogatories follows that of the Courts of Equity rather than that of the Common Law Courts. The Mary, otherwise Alexandra, 38 Law J. Eep. (n.s.) Adm. 29 ; Law Eep. 2 Adm. &Ecc. 319. In a cause of possession the defendant may be compelled to answer interrogatories if they be such as tend to support the plaintiffs' case and to a complete inquiry into the truth of the issues in the cause. Ibid. A defendant will not be compelled to answer an interrogatory if he swear fliat his answer would subject him to the penalties of the Foreign Enlistment Act. Ibid. The ancient and modern practice of the High Court of Admiralty as to interrogatories reviewed. Ibid. 8. — In a cause of bottomry, the owner of the ship being dead, the plaintiffs as holders of the bot- tomry bond, interrogated his widow and executrix as to documents : — Held,' that she was bound to answer not only according to her own knowledge, but also according to her information and belief. The plaintiffs did not state in their affidavits in support that they believed any document was in the possession or power of defendant. The Minne- haha, Law Rep. 3 Adm. & Ecc. 148. ((i) Inspection of documents. 9. — Where, inacaseof salvage services, the plain- tiffs allege risk in respect of policies of insurance, &e., as an item to be considered in estimating the amount of salvage remuneration, the defendants must pay the costs of a motion to inspect docu- ments in the possession of the plaintiffs, unless ADMIEALTY (C). 13 -they hare previously requested the plaintiffs to allow them to inspect such documents. The Memphis, Law Kep. 8 Adm. & Eoc. 23. 10. — XJpon application for inspection of documents, the Court will order them to be hrought into the registry, and after perusal of them decide whether or not the Application should be granted. The Macgregor Laird, 36 Law J. Kep. (n.s.) Adm. 10 ; Law Rep. 1 Adm. & Eec. 307. (e) Damage and collision. 11. — The jurisdiction, which the Court undoubt- edly possesses, to order a second arrest in respect of the same cause of action, should be cautiously exercised. The Flora, 35 Law J. Eep. (N.s.)Adm. 14 ; Law Eep. 1 Adm. & Eec. 46. Application for such an arrest should generally be made to the Court itself. Ibid. 12. — On a reference to the registrar in a cause of damage the plaintiffs, who were underwriters of the cargo, and had paid as for a total loss, pro- duced in support of their title as owners of the cargo lost, the policies of insurance of the cargo, the bills of lading, and the invoice and copy manifest: — Held, liat the plaintiffs must give further evidence of the value of the goods, and of a discharge from the owners of the cargo. The John BeUamy, 39 Law J. Eep. (n.s.) Adm. 28 ; Law Eep. 3 Adm. & Ece. 129. 13. — In a collision suit the Court will admit the book kept in the Coast-guard Office, containing the original entries made from the monthly re- turns, sent to the office by the coastguard officers, to shew the state of the wind and weather at the time of the collision, without calling the person who made the entries. The Catherina Maria, Law Eep. 1 Adm. & Eec. 53. 14. — In a cause of damage in respect of a collision between two foreign vessels in the Bosphorus, semble — that if a suit as to the Same subject-mat- ter is pending whereby the plaintiff can obtain full indemnity, the High Court of Admiralty wiU sus- pend the proceedings in its court or put the plain- tiff to his election ; and the Court will so act whether the proceedings elsewhere are in rem or in personam. The Mali Ivo, 38 Law J. Eep. (n.s.) Adm. 34 ; Law Eep. 2 Adm. & Eco. 366. 15. — ^In a cause of damage the defendants, by their pleadings, made no charge against the plain- tiffs, but only denied generally the averments in the petition, and pleaded inevitable accident : — Held, that the defendants ought to begin. The Thomas Lea, 38 Law J. Eep. (n.s.) Adm. 37. 16 . — In a cause of damage the defendants admitted their liability, and before the reference to ascer- tain the amount of damage had taken place the plaintiffs moved to amend the praecipe to institute the cause by increasing the amount of the action. The motion was granted on the payment of the de- fendants' costs. The Johannes, 39 Law J. Eep. (n.s.) Adm. 41 ; Law Eep. 3 Adm. & Ece. 127. 17, — ^Bailees of a barge field entitled to institute a suit in rem for collision ; but the damages awarded will not be paid out to the plaintiffs until the owners consent. The Minna, Law Eep. 2 Adm. & Ece. 97. Collision : appeal'by owners of injured vessel, [See The Calabar, SHippiNa'(Q) 14,] , (/) Salvage. 18. — In a salvage suit the appraisement of the , cargo salved, made under the authority of the Court, will be adhered to in fixing the amount of ■ salvage, although the cargo, having been released, was sold by the owner for much less than the amount of the appraisement. The Cargoes Venus, Law Eep. 1 Adm. & Ece. 50. 19. — The Court will, under particular circum- stances, allow the ship's agents to claim as salvors. The Cargo ex Honor, 36 Law J. Eep. (n.s.) Adm. 113 ; Law Eep. 1 Adm. & Ece. 87. A ship with a cargo of flour was stranded in Brixham Bay, and men superintended and paid by the plaintiffs, the ship's- agents, worked for five days and nights, and recovered the cargo. The sum of 801. tendered by the defendants pronounced sufficient, and the plaintiffs condemned in costs. Ibid. [And see infra (D) 12.] 20. — The examination of the crew of a salved vessel taken by the receiver of wreck under sec. 448 of the Merchant Shipping Act, 1854, is not ad- missible in a salvage suit ftr the purpose of prov- ing the facts stated in the examination. The Little Lizzie, Law Eep. 3 Adm. & Ece. 66. 21. — Where, under the circumstances of the case, a question of law was likely to arise, whether a towage contract was superseded by a right to sal- vage, the Court ordered the institution of a suit in the Court of Admiralty. The Bengal, Law Eep. 3 Adm. & Eec. 14. 22. — Semble — In apportioning the amount awarded as salvage, the Court will not allow the owners of the vessel performing the service to de- duct any expenses except those claimed in the peti- tion in the salvage suit. 2%e Spirit of the Age (Swabey, 287) not followed. The Wigtonshire, 36 Law J. Eep. (n.s.) Adm. 11, 23. — Unless the amount awarded by magistrates is wholly inadequate, the Court of Admiralty, upon appeal, will not disturb the award, even though the Court is of opinion that the magistrates should have given a somewhat larger sutn. T%e Jeune Louise, 37 Law J. Eep. (n.s.) Adm. 32. 24.— A vessel which had been saved was valued by a receiver of wreck at less than 1,000^. The salvors obtained an order for a commission of ap- praisement, but did not execute it, and after three weeks gave notice that they proceeded no further in the suit : — Held, that they might, within four-days of obtaining the order, have ascertained the value, and that therefore they must be condemned in damages for detention of the vessel during the rest of the three weeks. T/ie Margaret Jane, 38 Law J. Eep. (n.s.) Adm. 38; Law Eep. 2 Adm. & Ece. 345. [And see supra (A) 26 and (0) 3, 4.] {g) Eestraint. 25. — A registered part-owner of a vessel who, from other circumstances, appears to be only a mortgagee, is not entitled to arrest the vessel for u ADMIRALTY (C), (D). bail for safe return. The Innisfallm, 35 Law J, Eep. (N.s.)Adm. 110; LawEep. 1 Adm. &Ec.e. 72. In a cause of restraint, the charterer of the veesel, if he has a substantial interest in the question be- fore the Court, is entitled to intervene in the suit. Ibid. (h) Sale at suit of mortgagee. 26. — Sale of a vessel at suit of mortgagee of three-fourths of the shares. The Fairlie, 37 Law J. Rep. (n.s.) Adm. 66. 27. — In a cause of mortgage of a ship, the Ad- miralty Court decreed the sale of the ship, and the cargo to be unlivered. The owner appealed, and procured a prohibition, whereby the sale of the ship and the unlivery of the cargo was stayed. On motion by the mortgagee, that the sale and un- livery should proceed, notwithstanding the appeal, — Held, so ordering, that the mortgagor of a ship, unlike a mortgagor of land, could have no right to its restoration in specie, and further, that the fact that the mortgagee held a, collateral security for the mortgage debt, was no answer to the applica- tion. Cartwrightv. Fhilpott — The Jeff Davis, Law Rep. 2 P. C. 19. (i) Bottomry suit. 28. — Where in a suit by bottomry bondholders against ship and cargo, the ship has been arrested, and abandoned to the plaintiffs, and the plaintiffs being desirous of paying off charges having prece- dence of theirs, to avoid costs, apply to the Court for leave ; such charges should be specified on aifi- davit. The Fair Haven, Law Eep. 1 Adm. & Ece. 67. ■ ' {k) Booty of war. &9. — In cases of booty of war the actual captors, though they may institute the suit, are plaintiffs only in name, as the burden of proof rests with those claiming a right to share in the booty. And in such cases those who have the burden of proof have also the right to begin. The Banda and Kirwee Booty, 35 Law J, Eep. (n.s.) Adm. 11. (D) Costs. (a) Security for costs. 1. — A foreign Government plaintiff in the High Court of Admiralty must give security for the costs of the suit. The Beatrice, otherwise The Sappahannock, 36 Law J. Eep. (n.s.) Adm. 10. A foreign defendant is not bound to give security for costs, even though, from the oircum- .stances of the case, it may happen that the burden of ^roof of the issues in the cause lies upon him. Ibid. 2. — Goods were seized and aboxitto be condemned for breach of a colonial cu.stom-ordinance ; the owner filed an affidavit of claim, and moved the Vice Admiralty Court for leave to file the claim in formS. pauperis. This the Court refused, and no claim being brought in, the Court condemned the goods, and further condemned the owner unheard in the penalties. On appeal, leave for which was given by the Privy Council, — Held, the decree of the Court below was divisible into two parts — that in rem (the condemnation of the goods) being right, the 6 Geo. i. c. 114, s. 62, rendering security for costs, a condition precedent to filing the claim ; but that in personam (condemnation in penalties) being wrong, the owner being condemned unheard the rule as to security for costs not applying. &eorge v. The Queen, Law Eep. 1 P. C..389. 3, — In an action and cross-action, if the pro- cBedings are in personam, and the ship has not been arrested nor bail given in the principal cause, the Court cannot stay the proceeding in the cross-action until the plaintiff in the principal cause has given security for costs as defendant in the cross-cause. The Amazon— The Osprey, 36 Law J. Eep. (n.s.) Adm. 4. 4. — Although the Court will ordet aplaintiff out of the jurisdiction to give security for costs, yet it vrill not in such a case order security for damages in a cause of possession. The Mary or Alexandra, 38 Law J. Eep. (n.s.) Adm. 29 ; Law Eep. 1 Adm. & Bee. 335. 5. — Where, in a proceeding in rem, a bail bond given in the Court below only covered the costs in that Court, the appellants, who were foreigners, were called upon to give security for the costs of the appeal. The HHine, 35 Law J. Eep. (n.s.) Adm. 1 ; Law Eep. 1 P. C. 231. The Court of Appeal will not, however, enter- tain any question as to uncovered costs in the Court below. Ibid. (b) Froctor's lien. 6. — After payment of the amount awarded for salvage and costs, the defendant's proctor -has against the property salved a lien in priority to average expenses or necessaries incurred since the salvage. The SoUomstem, 36 Law J. Eep. (n.s.) Adm. 5 ; Law Eep. 1 Adm. & Ece. 293. 7. — After an order of the Admiralty Court for payment of mpney out of the registry to the proctor of a suitor, a garnishee order nisi was made against the fund, and such order was made absolute, the proctor not appearing though given notice : — Held, the proctor had not lost his lien for costs. The Jeff Davis, Law Rep. 2 Adm. & Ece. 1. 8. — A plaintiffhaving obtained a decree for pay- ment by the defendant of a sum of money for costs, the defendant under the authority of two garnishee orders paid part of the sum to judgment creditors of the plaintiff. No notice had been given to the plaintiff's proctor previous to the ap- plication for the garnishee orders, nor was the existence of the proctor's lien mentioned to the Judge who made the orders: — Held, that the defendant was still liable to pay the costs decreed. The Leader, 37 Law J. Eep. (n.s.) Adm. 67 ; Law Eep. 2 Adm. & Ece. 314. (c) In general. 9. — The principles on which the Court acts in de - ciding the right to the costs of the detention of a material witness stated. A sum sufficient for main- tenance allowed in respect of the master's detention, although he remained in the ship after the arrest, engaged in the affairs of the ship. The Bahia, Law Eep. 1 Adm. & Ece. 15. 10. — A master of a ship, before bringing his suit for wages and disbursements, should furnish his ADMIRALTY (D), (F).^ADVANCEMENT. 15 accounts ; and if he do not do so, he will not be , entitled to his costs. The Fleur Be Lis, 1 Law Eep. Adm. & Ecc. 49. 11. — Salvors are entitled to the costs of a com- mission of appraisement when it appears that there is a substantial difference between the appraised value and that alleged by the defendants. The Paul, Zt> Law J. Eep. (n.s.) Adm. 16 ; Law Rep. 1 Adm. & Ecc. 57. 12 . — ^In a cause of salvage the defendants tendered 2822., together with such costs (if any) as should be due by law. The Court, at the hearing of the case, pronounced for the tender: — Held, that though the amount recovered was less than 300Z. the plaintiffs were entitled to costs, up to the tender. The Hickman, 39 Law J. Rep. (n.s.) Adm. 7 ; Law Rep. 3 Adm. & Ecc. 15. Held also, that, when a tender is made in a salvage suit, it should state that it is a tender for salvage and costs, or should specify the ground upon which costs are not tendered, and refer the question of costs tothe consideration of the Court. Ibid. 13. — The expenses of material and necessary wit- nesses may be allowed, even though th«y may not have been called at the trial. The Biddick, 38 Law J. Rep. (n.s.) Adm. 24. 14. — In a cause of damage, the only defence was, that the collision was caused by the fault of a pilot whom the defendants were compelled to take. The defendants having proved their case : — Held, that the plaintiffs must be condemned in costs. The Boycd Charter, 38 Law J. Rep. (n.s.) Adm. 36 ; Law Eep. 2 Adm. & Ecc. 362. 15. — An action was brought in the Court of Queen's Bench, in which an ampunt less than 3002. was claimed in the particulars of demand for damage by collision, and a farther sum not exceeding 302. for salvage services, and further sums for depreciation in value of ship and for demurrage, amounting on the whole to more than 3002. The causes of action arose within the district of a County Court having Admiralty jurisdiction under - the County Courts Admiralty Jurisdiction Act, 1868. The defendant paid 2542. 12«. Wd. into Court in respfect of the claim for damage by collision, which plaintiff accepted in full satis- faction, and entered noU. pros, as to the rest: — Held, that the Superior Courts of Common Law at Westminster were superior Courts within the 9th section of the Act, that the plaintiff's right to costs depended upon the amount recovered and not the amount inserted in the particulars of demand, that 2542. 12£. lOd. was recovered in the action, and that the plaintiffs were therefore not entitled to costs. Hewitt ^ Co. v. Cory, 39 Law J. Rep. (n.s.) Q.B. 279 ; Law Rep. 6 Q. B. 418. Held, also, that a suggestion of the facts was not necessary to shew that a. County Court had jurisdiction over the district where the cause of action arose was required to be entered on the record Ibid. 16. — A vessel was arrested in the Court of Ad- miralty, in a cause of damages exceeding 3002. The defendants admitted their liability, andpaidinto Court 2522., the amount of their statutory liability at 82. per ton: — Held, that the plaintiffs were entitled to the costs of proceeding in the Admiralty Court. The Young James, 39 Law. J- Rep. (n.s.) Adm. 1 ; Law Rep. 3 Adm. & Ecc. 1. 17. — The owners of a vessel are bound to pay the costs of defending the master against a false criminal charge made abroad by some of the crew, in consequence of having been previously corrected by him in the course of his duty. The James Seddon, 35 Law J. Rep. (n.s.) Adm. 117 ; Law Rep. 1 Adm. & Ecc. 62. 18. — Costs to be allowed to a first mortgagee of a ship in suits touching the proceeds of the sale of a ship, where the order for payment included " costs, charges, and expenses properly incurred." The Kestrel, Law Rep. 1 Adm. & Ecc. 78. (E) Colonial Oedinance : Customs : Fobfeituee. Where, according to local ordinances and orders in Council, the right of a Vice Admiralty Court to decree a forfeiture of goods and boats for a breach of Customs' ordinances depends on the fact whether the ship, from which the goods were landed, was within a particular distance from the harbour, the onus is upon the owner of the goods to prove that the ship was beyond that distance. Sentence of the Vice Admiralty Court, condemning the goods and boats, reversed, with damages and costs, upon the above proof by owner.' Solet v.. The Queen, Law Rep. 1 P. C. App. 198. (F) Vice Admiealtt Coubt : Seizubb. This section, providing that the Judge may make a statement on the record that there had been probable cause for the seizure, contemplates an indorsement upon the record in some proceed- ing in which the verdict of a jury has been ren- dered, for the purpose of being used in other proceedings, and not in the proceeding itself. Therefore, held on appeal, that such an indorse- ment was no bar to a claim for damages against the seizor. Wilson v. The Queen, Law Rep. 1 P. C. 406. ADVANCEMENT. (A) What constitutes an advancement. (B) PowEK op tbustees. (C) What advancements the Coubt of Chan- CEEY WILL AUTHOBIZE. (A) What constitutes an advancement. 1. — Mwas adopted by C, her deceased mother's first cousin, and lived with her twelve years. C then wrote to T informing him of her inten- tion to invest 1,8002. on mortgage in his name, saying, "It is after six months of my decease dear M's property." The next day she instructed her solicitors, by letter, to prepare the mortgage, in- closing a cheque for the amount, on the counter- foil of which she wrote, "In trust for M." Twelve days aftex she had ea interview with T, of which 16 ADVANCEMENT— ALEHOUSE. she entered this memorandum in her diary : " X came, and agreed to take charge of 1,800/. for dear M":— Held, that the above several docu- ments in the handwriting of C, combined with the relationship and adoption of M, constituted a com- plete and final declaration of trust in favour of M, which could not admit of any parol variation by Ts present recollections of what passed at the interview. In re Cane's Trusts, 36 Law J. Rep. (n.s.) Chanc. 744. 2, — Payments made by a father in placing out his son as articled clerk to an attorney, in pur- chasing for his son a commission in the army, and in discharging his son's debts, are all in the nature of advancements to the son within the meaning of the 5th section of the Statute of Distributions, and the amounts so paid must accordingly be brought into hotchpot by the son before he is entitled to a distributive share in the estate of his father upon the death of the latter intestate. Boyd V. Boyd, 36 Law J. Rep. (n.s.) Chanc. 877; Law Rep. 4 Eq. 306. 3. — An investment of stock by a mother in the joint names of herself and a child, is an advance- ment of the child. If it can be shewn from the relationship between the parties that the more probable purpose of the transaction was to benefit the child, it is immaterial whether the person who makes the investment is the father or the mother, or even some one standing in loco parentis. Sayre V. Hughes, 37Law J. Rep. (n.s.) Chanc. 401; Law Rep. 5 Eq. 376. 4, — ^Where A contracted to purchase property in the name of his nephew (whom he had adopted) and paid part of the purdiase-money, and induced his nephew to sign the agreement by the repre- sentation that he intended to complete the pur- chase out of his own moneys for his nephew's benefit, and afterwards died before completion, leaving the balance of the purchase-money un- paid and unprovided for :— Held, that the balance was payable out of A's assets. SHdmore v. Bradford, Law Rep. 8 Eq. 134. (B) PowEB or Teustees. 5, — Trustees having power to advance for the benefit of testator's daughter at any period of her life half the capital, the income of which was given by the will to her separate use, Were au- thorized by the Court to make the advance for the purpose of setting up her husband in business. In re Kershaw's Thists, 37 Law J. Rep. (n.s.) Chanc. 751 ; Law Rep. 6 Eq. 322. [And see Trust and Tbustke (A) 7.] (C) What advancements the Cotjet of ChANCEET -WUi AtlTHOBIZE. 6. — Trustees having a power of advancement for the benefit of children, were authorized by the Court to make an advancement for the passage and outfit of the children with their parents to New Zealand, for the sake of their health, each child's share contributing equally to the passage and outfit of the parents. In re Lon^e Settlement 38 Law J. Rep. (n.s.) Chanc. 126. The Court declined to sanction the transfer of the trust funds to new trustees resident in New Zealand, Ibid, AEFIRMATIONS IN LIEU OF OATHS. [See Evidence.] ALEHOUSE. (A) Licence, Geant of. (a) Wine and Beerhouse Act, 1 869. (J) When Excise Licence necessary. (1) Occasional licence. * (2) Sale of beer at public races regattas. (c) Bating qualification. (B) Offences. (a) Licence to sell off the premises, lb) Hours of closing. (c) Sunday trading. (1) Who is a traveller. (2) Evidence: onus of proof . (d) Second offence. [11 Geo. 4. & 1 Will. 4. c. 64, s. 2; 4 & 5 Will 4. c. 85, ss. 2, 3, 8 ; 3 & 4 Vict. c. 61, ss. 2, 3, par of s. 4 and ss. 5 and 6 ; 23 Vict. c. 27, ss. 13, 14 and 15, and 24 & 26 Vict. c. 21, part of s. 3 re- pealed, and new provisions enacted for the licensing of beerhouses. 32 & 33 Vict. e. 27. — 3 & 4 Vict, e. 61 explained as to licences for certain beer- houses. 33 & 34 Vict. c. 1 1 1.— 25 Vict. c. 22, ». 8, extended to all brewers, 30 & 31 Vict. c. 90, s. 13. —11 Geo. 4. & 1 Will. 4. c. 64, ss. 4—5 repealed, 30 & 31 Vict. c. 90, s. 13.] (A) Licence, Geant of. (o) Wine and Beerhouse Act, 1869. 1. — B, who was the holder of a licence granted to him, under the 3 & 4 Vict. c. 61, for the sale of beer in a beerhouse occupied by him, gave the proper notices required by 32 & 33' Vict. c. 27 of his intention to apply for a certificate to obtain a licence for the sale of beer, &c. in the said house. He made, his application at the General 4^nual Licensing Meeting, but the certificate was refused upon the ground that he came within the 3rd sub- section of the 8th section of 32 & 33 Vict. c. 27. The meeting was held upon the 20th of August, and was adjourned to the 17th of September. On the 25th of August, D gave notice that he should apply at the adjourned meeting for a certificate in respect of the same house which he alleged was occupied by him. The Justices refused to entertain the application, as they had already refused such- certificate on the application of B. Upon appeal to the quarter sessions, the appeal was dismissed without hearing it on the merits : — Held, upon a rule for a mandamus to enter continuances and- hear the appeal, first, that the refusal to grant the- certificate to B, upon a groiind personal to him, did not prevent D from making an application for a certificate in respect of the same house ; secondlyr ALEHOUSE (B). 17 that the notices having been given by D twenty-one days before the adjourned meeting at which the application was made by him, the requirements of section 7 of 32 & 33 Tiet. c. 27, were so far com- plied with. Held, therefore, that the rule for a mandamus must be absolute. Tlte Queen v. The Justices of the West Biding of Yorkshire, Drake's case, 39 Law J. Eep. (n.s.) M. C. 1 7 ; 10 Best & S. 840 ; Law Eep. 5 Q. B. 33. " (i) When Excise licence necessary. (1) Occasional licence. 2. — Under 27 & 28 Vict. c. 64, i. 5, a licensed victualler cannot expose for sale or sell excisable liquors at a public ball in the Metropolitan Police District, between the hours of one and four in the morning, without obtaining an occasional licence from the Commissioner of Police for the Metro- polis, although he may, with the consent of a Justice of the Peace, have obtained an occasional licence from the Commissioners of Excise authoriz- ing him to do so, under 25 Vict. c. 22, s. 13, and 26 6 27 Vict. c. 33, s. 20. Hannant v. FovZger, 36 Law J. Eep. (n.s.) M. C. 119; 8 Best & S. 425; Law Eep. 2 Q. B. 699. (2) Sale of beer at public races or regattas. 3. — Eaces were held in a field occupied by an individual who let it for that purpose ; and any one of the public, on payment of a small sum, was admitted into the field : — Held, that these races were "public races" within the 6 Geo. 4. c. 81, s. H, which enables any person licensed to sell beer by retail to be drunk on the premises to carry on his business in booths, tents, or other places, at the time and place of holding any " public races." Boughey v. Bowbotham, 4 Hurls. & C. 711. 4. — The exemption in 6 Geo. 4. c. 81, s. 16, in favour of persons duly licensed to sell beer, &e., and carrying on their trade in booths, tents, or other places, within the limits of any lawful fair or public races, relates only to the excisable penalties imposed by the Act, and does not protect any per- son so selling beer, &c., from his liabilities under 35 Geo. 3..C. 113, s, ], for selling without a magis- trates' licence. .4«Av.i^»«, 35Law J.Eep. (n.s.)M. C. 169; 7Best&;S. 255, 266; Law Eep.lQ.B.270. [And see Biixiabds, 1.] (c) Bating quaUfioation. 5. — A beerhouse situated in a township having a population of less than 10,000 inhabitants, accord- ing to the last parliamentary census, must, if such township be within a parish containing more than 10,000 inhabitants, be rated in one sum to the rate for the relief of the poor of the township in which such house is situate on a rent or annual value of \Sl. per annum at the least, or otherwise the licence is null and void, under 3 & 4 Vict. c. 61. s. 1 — Mellor, J., dnbitante. Preston v. Buckley, 39 Law J.Eep. (n.s.) M.C. 105; Law Eep. 5 Q.B. 391. (B) Ofpbnobs. (a) Licence to sell off the premises. 6. — An information was preferred against a Digest, 1865-70. licensed seller of beer by retail, not to be drunlc , on his premises contrary to the statutes 4 & 5 Will. 4. 0. 18, s. 4, and 3 & 4 Vict. c. 61, s. 13. It appeared that a constable tapped at a window of the defendant's premises, which were about three yards from the highway, and upon its being opened by the man in charge of the house, asked him for a pint of beer. The beer was handed in a mug to the consliible, who drank part of it, standing as close to the window as he could, and the remainder while sitting on the window-sill. The window was open all the time, and the attendant present: — Held, that there was not sufficient evidence to jus- tify the magistrates in convicting the defendant. Bealy. Schofield, 37 Law J. Eep. (n.s.) M.C. IS; 3 Best & S. 760 ; Law Eep. 3 Q. B. 8. (b) Hours of closing. 7. — Abeer-house situated inahamlet maintaining its own poor, but included in a parish the popula- tion of which aceordiilg to the last census exceeds 2,500, may, under the 15th section of 3 & 4 Vict. c. 61, be kept open tmtil eleven o'clock at night, although the population of the hamlet itself does not exceed 2,500. Smith v. Bedding, 35 Law J. Eep. (n.s.)M. C. 202 ; 7 Best &S. 760 ; Law Eep. 1. a. B. 489. (o) Sunday trading. (1) Who is a traveller. 8. — A person who walked two miles and a half to a spa for the purpose of drinking the waters, held a " traveller " within the exception in this section. Feplow V. Bichardson, Law Eep. 4 C. P. 1 68. (2) Evidence : onus of proof, 9. — The appellant kept a public-house outside the Sevenoaks Eailway Station, which was a mile from Sevenoaks. On Whit-Sunday, after the arrival of several excursion trains, and before half-past twelve in the day, several persons werein his house drink- ing ; two were Sevenoaks persons, but the only evidence as to the appellant's knowledge that they were there was his remark (upon his attention being called to them as they left), that he was not aware Sevenoaks persons were there: — Held, that the Justices were not bound to convict him on a charge, under 11 & 12 Vict. c. 49, s. 1, for having his house open illegally. Peachev. Cohnan, 35 Law J. Eep. (n.s.) M. C.,118 ; Law Eep. 1 C. P. 324. 10. — The reservation in favour of travellers in the Metropolitan Police Act, 2 & 3 Vict. c. 47, s: 42, which prohibits the opening of public-houses for the sale of wine, beer, &c., on Sundays, " except refreshment for travellers," is not an exception within the meaning of 11 & 12 Viet. c. 43, s. 14 ; and therefore the onus of proving that the persons supplied with refreshments are not travellers is on the informer. Taylor v. Httmphries, 17 Com. B. Eep. N.S. 539 ; 34 Law J. Eep. (n.s.) M. C. 1 aflSrmed. Davis V. Scrace, SSLaw J. Eep. (n.s.) M.C. 79 ; Law Eep. 4 C. P. 172. 11. — It lies upon the complainant to prove that an innkeeper, selling beer within the prohibited hours on Sunday, knew that the persons he served D 18 ALEHOUSE— ANNUITY (A). were not travellers. The operation of 32 & 33 Vict. 0. 27 discussed. Morgan v. Hedger, Law Eep. 6 0. P. 485. 12, — A was charged before Justices, under 1 1 & 12 Vict. c. 42, with having opened his house for the sale of wine and beer on Sunday, before half- past twelve. He kept a refreshment-room commu- nicating with a railway station ; he had a notice thereon as to the penalties incurred in case of per- sons not travellers having refreshment during pro- hibited hours ; he had ordered his servants to ask persons if they were going by the train ; eightper- Bons were in the room within the prohibited time ; he had questioned six of them, but his servants neglected to question two who came in during A's absence ; of the eight persons, four were strangers, who went off by the train which started shortly after their entering the room ; the others resided about a quarter or half mile off, and three of them took tickets and went by the train, whilst the fourth had accompanied his son, who went by it. The Justices convicted A : — Held, that the convic- tion was wrong. The Court in future will, on quashing a convic- tion of this kind, do so with costs. Copley v. Burton, 39 Law J. Eep. (n.s.) M. C. 141 ; Law Eep. 5 C. P. 489. ((?) Secondi offence. 13. — In the month of August, 1869, and after the passing of 32 & 33 Vict. c. 27, S, a beer- house keeper, was convicted for keeping her house open for the sale of beer on Sunday,- before half- pasttwelveo'clockin thedaytime. Outhe6th Octo- ber, 1869, she was convicted for refusing to admit a constable to her premises : — Held, that the Jus- tices had power, under s. 17 of 32 & 33 Vict. c. 27, to treat this as a second offence, and under 4 & 5 Will. 4. c. 85, B. 7, to order that S should be dis- qualified from selling beer, &c., by retail, for the space of two years. Ex parte Short, 39 Law J. Eep. (n.s.) M. C. 63 ; Law Rep. 5 a. B. 174. ALIEN. [6 & 7 Will. 4. c. 11, 7 & 8 Viet. c. 66, and 10 & 11 Vict. 83, repealed by 33 & 34 Vict. c. 14, and fresh provisions enacted. The oath to be taken by aliens on being naturalised prescribed by 31 & 32 Vict. c. 72, s. 14.] Semble — The rights of an alien friend coming into a British colony are only limited by the par- ticular law of that colony as to his rights in that colony, and he tmay by such residence acquire rights in England and in other colonies, as tem- porarily a British subject, which he did not ac- quire in the colony in which he was residing. In this instance a copyright. Low v. Eoutledge, 35 Law J. Eep. (n.s.) Chanc. 114 ; Law Eep. 1 Chanc. 42 : affirmed, on appeal, 37 Law J. Eep. (n.s.) Chanc. 454 ; Law Eep. 3 E. & I. App. 100. [See also Copyright, 6, 8.] AMALGAMATION. [See CoMPAirr.] ANCHOEAGE DUES. [See Toiis.] ALIMONY. [See DivoKOB.] ANIMALS. Negligence in care of: scienter. [See Neom-. GENOE, 8-10.] Straying on highway. [See Highwat, 13.] ANNUITY. (A) Gift of money eos pttechase op annuity : BIGHTS OF annuitants. (B) Annuity payabi^ out op eents and PKOFITS. (C) Annuities payable out of coepub. (o) Abatement. (6) Eenemable leaseholds. (D) Aerears of annuity. (E) Sboueity foe annuity. (a) Policy effected by grantee of redeemable annuity. (4) Covenant for payment of . (F) Right op annuitants to pabticipate as legatees. !G) On what property chargeable. H) Administration suit by annuitant. ( I ) Forfeiture on bankruptcy. (A) GiPT of money poe Purchase op annuity: eights op ANNUITANTS. 1. — Where a sum of money is so bequeathed for payment of an annuity, as that the whole of the principal is dedicated to the annuity, the interest of the annuitant in the bequest is an absolute one ; and he or his representatives will be entitled to be paid the whole of the sum. Wakeham v. Merriclc, 37 Law J. Eep. (n.s.) Chanc. 45. 2. — Where an annuity is directed to pass from the annuitant on the happening of some contin- gency, as in the case of a gift by will of money to be invested in an annuity for A, with gift over if A should attempt to alienate, the annuitant takes no vested interest in the principal transmissible to his representatives. Day v. Day (1 Drew. 669 ; 22 Law J. Eep. (n.s.) Chanc. 878) dissented from. Power V. Hayne, Law Eep. 8 Eq. 262. 3. — A testator directed his residuary estate to be laid out in the purchase of an annuity for the joint lives of his wife and daughter, and the life of the survivor of them, to be paid to them in equal shares during their joint lives, and on the death of either the whole annuity to be paid to the survivor for her life. The amount of annuity which the residuary estate was sufficient to pur- chase was ascertained, but no annuity was pur- chased, and by an order of the Court the residuary estate was directed to be invested in permanent securities, and the income to be paid to the widow and daughter equally during their joint lives, and it was declared that the difference for the time being between the value of the investments,, and ANNUITY 1(B), (E) 19 the price at which such an annuity could for the time being be purchased, would belong during their joint lives to the widow and daughter in equal moieties, and that each of them had power to dispose by will of one moiety of so much of the capital as, having regard to that declaration, should not be required to be retained as the price at which such annuity could for the time being be purchased. One of the annuitants died intestate, and by^er death the price at which an annuity for the life of the survivor could be purchased was much reduced: — Held, aflrming the order of the Master of the EoUs, though on different grounds, that the survivor was entitled to the whole amount set free by such reduction. Thrupp v. Goodrich, 39 Law J. Rep. (n.s.) Chanc. 656. (B) Annuity patabib out of rents and profits. 4. — An annuity given by will held not to be a charge on corpus, it appearing on the whole will that the testator, when he made the gift of the an- nuity, was dealing with income only, of which he considered there would be a surplus, and that he had made a subsequent gift of the entire corpus. Salvin v. Weston, 36 Law J. Eep. (n.s.) Chanc. 552. 6. — A testator gave by his will his real and per- sonal estate to trustees, upon trust to sell the real estate, and out of the interest, dividends, and an- nual proceeds of the trust fund, to raise the annual sum of lOOi., and pay the same to his mother, or her assigns, during her life ; and from and after the payment of the said annual sum of 100^., and subject thereto, to stand possessed of the ti^ust fund on trusts thereinafter mentioned. The an- nuity being in arrear, and the fund being inade- quate : — Held, by the Lords Justices (in reversal of an order made by one of the Vice Chancellors), LawEep.4Eq. 58, that the words, "from and after," &c., and " subject thereto," were not merely refe- rential, and that the effect of those words was to render the subsequent trusts subject to the full payment of the annuity, and that the annuitant was entitled to have the corpus sold, if necessary, to provide for such payment. Birch-v. Sherratt, 36 Law J. Eep. (n.s.) Chanc. 925; Law Eep. 2 Chanc. 614. Lord Justice Eolt. — The grant of an annuity out of rents and profits, or dividends and interest, where the capital is given over, not in terms from and after the annuitant's death, but from and after satisfaction of the annuity, and subject to the an- nuity, is equivalent to. the case of a legacy and a residuary bequest. Ibid. 6, — A testator gave his real and personal estate upon trust to pay out of the annual profits three several annuities, by equal half-yearly payments, and, subject as aforesaid, directed his trustees to stand possessed thereof in trust for A for life, with remainder to B absolutely: — Held, that the annuities were a continuing charge on the annual .profits until they were paid in full On the death of one of the annuitants it ap- peared that, the estate having proved insufficientj considerable arrears were due on all the annuities : — Held, that the annual profits were to be applied in the first place towards the payment of the arrears rateably, and then of the existing annu ities. Booth v. Conlton, 39 Law J. Eep. (n,s.) Chanc. 622 ; Law Eep. 5 Chanc. 684, (C) Annuities payable out of corpus. (a) Abatement. 7. — The corpus of an estate charged by will with annuities, being insufficient to pay them in full, and some of the annuitants being dead and others living : — Held, that the values must be ascertained with reference to the events which had occurred, and that the rule in Todd v. Bielby (27 Beav. 353) applied, notwithstanding the fact that the interest of one of the annuitants was reversionary at the death of the testator. Potts v. Smith, 39 Law J. Rep. (n.s.) Chanc. 131 ; Law Eep. 8 Eq. 683. Mode of taking the accounts where the sums already paid to the several annuitants did not bear the same proportion to each other as the full amounts of their respective annuities. Ibid. 8. — A testator directed his trusteesto convert the residue of his real and personal estate ; and to invest as much money as would produce 200?. a year, and to pay it to his wife during her life. And he gave the residue, not wanted for that purpose, to other persons. The widow survived five years, and the deficiency of the income of the residue to pay her annuity amounted to nearly 700?. : — Held, that the deficiency was payable out of the corpus. Percy v. Percy, 35 Beav. 295. (i) Renewable leaseholds. 9. — L, a tenant of renewable leaseholds in Ire- land, on his marriage assigned the lands to trus- tees to the use of himself for life, and if his wife should survive him upon trust to pay her an an- nuity. This deed was registered. L falling into difficulties, N, by arrangement with him, paid his debts, and L let him into the greater part of the lands, but there was no assignment of L's interest. N subsequently, in the name of a trustee pur- chased the immediate reversion, and the rents being in arrear and a renewal fine not being paid, the trustee recovered possession in ejectment : — Held, that L's widow was not entitled to her annuity, although N had notice of the settlement. Hickson v. Lombard, Law Rep. 1 E. & I.'App. 324, (D) Arrears of annuity. [See (B) 6.] (E) Security for annuity. (a) Policy, effected by grantee of redeemable annuity. 10. — The gra,nte6 of an annuity for the life of the grantor, granted in consideration of a sum of money, and made repurchasable on repayment, insured the grantor's life in the amount of the purchase-money, the annuity having apparently been calculated so as to cover the amount of pre- mium, as well as interest, at 61. per cent, on the purchase-money, and by tl.e annuity deed the grantor covenanted to repay to the grantee any additional rate of premium which might be re- quired by reason of his going beyond the limits of the policy. On the repurchase of the annuity : Held, affirming the decree of Vice Chancellor d2 20 ANNUITY (F), (G)— APPORTIONMENT (A). Stuart, (39 Law J. Rep. (n.s.) Chano. 207 ; Law Eep. 9 Eq. 156) that the policy belonged to the , grantee, and not to the grantor. But hold also, dissenting from the view taken by the Vice Chancellor, (39 Law J. Eep. (n.s.) Chano. 207) that the transaction did cot constitute the relation of debtor and creditor between the parties. Knox v. Turner, 39 Law J. Eep. (n.s.) Chanc. 750 ; Law Eep. 5 Chanc. 615. (6) Covenant for payment of . 11. — A fund was vested in trustees upon trust during the joint lives of husband and wife, to pay out of the income to -the wife 2007. a year, and if she survived her husband, then during the rest of her life 5007. a year, and subject thereto upon trust for the husband. And the husband cove- nanted that if the income should become less than 600Z. a year, he would add to the fund, so as to make up the income to that amount. The income during the husband's life was reduced below 600^. The husband, by will, devised his real estate to his wife for life, and directed Iiis personal estate to be converted and invested in land to be settled to the same uses : — Held, that the widow was en- titled to have the annuity fund made up to 500^. a year, and then to have the husband's reversionary interest in it sold, and the proceeds invested ac- cording to the will. Countess of Harrington v. Atherton, 2De Gex, J. &S. 352. Covenant ly man to pay an annuity to a woman whom he afterwards marries: revival of covenant after Ms-death. [See Covenant, 1.] (F) Eight or annuitants to pakticipate as XESAXEXS. 12. — The ultimate residue of real and personal property was directed to be realized and " divided amongst and paid to the several persons, taking pecuniary legacies .... rateably and in propor- tion to the amount or value of their respective ori- ginal legacies." Annuitants under the will were held not entitled to participate as legatee^. And this was so held, although the .following clause of the will was duly cancelled — " But it is my will that in the' distribution of my' residuary estate annuitants for life or lives shall not, in respect of their respective annuities, or the value thereof, be entitled to participate in such distribution." Distinction between this case and the cancellation of an exception. Gaskin v. Sogers, Law Eep. 2 Eq. 284. [And see Administeation, 22.] (G) On vthat peopeety chargeable. 13. — A testator gave his real and personal estate to trustees, upon trust, out of the rents and pro- duce, or by a sale or other disposition thereof, to raise an annuity for his wife and certain legacies, and to invest the surplus. He directed a sale of his real estate after the death of his wife, and gave ois residue to his children : — Held, that the personal estate was not primarily charged with the annuity, but that the real and personal estate formed one common fund for its payment. Bedford v. Bedford, 85 Boav. 584. A testator gave his real and personal estate to trustees, in trust to raise an annuity lor his widow and invest the surplus; and after her death he directed a sale of his real estate, and declared that the produce " should be deemed to be part of his personal estate, and should be subject to the dispo- sition " of his personal estate, which he gave to his children : — Held, that the realty was converted into personalty only for the purposes of the will, and that the heir of the testator was entitled to so much of the real estate as had lapsed by the death of a child in the testator's, lifetime. Ibid. (H) Administeation suit bt annuitant. 14. — ^An annuitant under a will, who was also entitled to a debt of less than 61. from the testa- tor's estate, after having been informed by the tes- tator's executors that they had set apart a suffi- cient sum of stock to answer her annuity, filed a bill for the administration of the testator's estate. On the motion of the executors, the suit was stayed without costs, upon the ground that the bill ought never to have been filed in respect of the' debt alone, and that there was no other dispute between the parties to sustain a suit. Sudd v. Sowe, 39 Law J. Eep. (n.s.) Chanc. 846 ; Law Eep. 10 Eq. 610. (I) EOEFEITUEE ON BANKRUPTCY. [See FOEFEITUEE.] APPEAL. Admiralty Appeals. [See Admiralty (A) (c), (C) («).] Chancery. [See Jusisdiction in Equitt: Practice in Equity (E).] Common Law. [See Practice at Law (E).] County Court. [See County Court.] Divorce. [See Divoece.] House of Lords. [See House of Loeds.] l^rivy Council. [See Privy Council, Admi- HALTY (C) (a).] Vrohate. [See Probate (L).] [The Lord Justices of Appeal enabled to sit sepa- rately, according to appointment of the Lord Chan- cellor. 30 & 31 'Vict. c. 64.] APPOINTMENT. [See Power.] APPOETIONMENT. On bankruptcy. [See 32 & 33 Vict. c. 71, s. 35.] (A) Eents, (B) Dividends, &c. (A) Rents. 1.— An equitable tenant for life having obtained grant pour autres vies to himself demised to yearly tenants by parol :— Held, on appeal from the 'Vice Chancellor Stuart (Law Eep. 1 Eq. &71), that on his de,i,th the rents were not apportionable between APPOETIONMENT (Bj-APPRENTICE (A), (B). 21 his executors and the remainderman, under the 4 & 5 Will. 4. c. 22, because the demises were not in writing; nor under the 11 Geo. 2. u. 19, s. 15, because the demises were made by a person having an estate continuing beyond his own life. Mills V. Ttumper, Law Eep. 4 Chanc. App. 320. 2. — Where a life estate was created by a settlement /inicr-ior to the statute 4 & 5 Will. 4. c. 22, but the lease, reserving the rent (royalties, i t was a mining lease), was made after the statute : — Held, that the rent was apportionable between the tenant for life's representatives and the remainder- tnon, although the lease was made in pursuance of a power contained in the settlement. LUwdlyn v. Bous, Law Eep. 2 Eq. 27. |i 3. — Arent-cbarge for which tithes have.sincethe Apportionment Act, been commuted is apportion- able on the death of a tenant for life, although the life estate in the tithes was created by an in- strument dated before the Act. Heasman v. Pearse, Law Eep. 8 Eq. 699. [And see Tenant foe Life, 5, 9, 8, 14, 16; Action, 14 ; and No. 5 infra.] (B.) Dividends, &c. 4. — The dividends on consols in Court, the con- sideration for lands taken compulsorily, which lands were settled by deed prior to the passing of this Act, are not apportionable in favour of the executor of the tenant for life. In re Lawton Estates, Law Eep. 3 Eq. 469. 5. — A testator gave his residuary real and perso- nal estate to trustees, upon trust to accumulate the rents and profits until his nephew attained twenty- one, when he was to be put into possession for life: — ^Held, that the trustees had an "interest" within the Apportionment Act, 4 & 5 Will. 4. c. 22, which determined upon the nephew's attain- ing twenty-one ; and therefore that the rents and dividends falling due after the date of his majority must be apportioned as between him and the persons beneficially interested in the accumulations. Wheeler v. Tootdl, 36 Law J. Eep. (n.s.) Chanc. 221 ; Law Eep. 3 Eq. S71. 6. — Under a will, dated in 1 858, A was tenant foi: life of an estate sul^'ect to impeachment for waste. B was tenant for fife of the same estate in re- mainder without impeachment for waste. In A's lifetime the Court had authorized the sale of some of the timber on the estate, and had ordered the dividends of the money arising from such sale to be paid to A during his life. After A's death B claimed the whole of the dividend which was ac- cruing at the death: — Held, that such dividend was not apportionable between B and the personal representatives of A. Jodrell v. Jodrell, 38 Law J. Eep. (n.s.) Chanc. 507; Law Eep. 7 Eq. 461. 7. — Assignment by deed to trustees on trust to pay an annual sum notexceedingS.OOO/. to A, untilhe should have attained the age of 30, and to accumu- late the surplus income and stand possessed of the accumulations upon the trust declared concerning the corpus ; and upon A's attaining the age of 30, on trust to pay the whole "dividends, interest, and annual produce," to him with limitations over : — Held, that on A's attaining 30 there must be an apportionment of current dividends. Donaldson V. Donaldson, Law Eep. 10 Eq. 635. [And see Lauds Ciaitses Consolidation Act, 49—51.] Apportionment of poor-rates between in- coming and 'outgoing tenant. [See Eatb, 2.] Apportionment of jointure between devisees of settled estates. [See Maeeiagb Settlement, 30.] Apportionment of costs where plaintiff partly succeeds and partly fails. [See Landloed and Tenant, 16.] APPEENTICE. (A) Covenant by appeentice foe peesonax SBEVICB. (B) Covenant bt mastee. (o) To teach apprentice. (J) To refund on failure of health of apprentice. . (C) JUEISDICTION of JUSTICES. (A) Covenant by appeentice foe pbbsonal seevice. 1. — ^A covenant in an apprenticeship detfd that the apprentice will honestly remain with and serve his master for a certain term, is, though in terms absolute, subject to an implied condition that the apprentice shall continue in a state of ability to perform his contract. To an action, therefore, by the master for breach of the covenant, a plea that the apprentice was prevented by the act of God, to wit, permanent illness, which arose after the making of the deed and before breach is good Boast V. Firth, 38 Law J. Eep. (n.s.) C. P. 1 • Law Eep. 4 C. P. 1. (B) Covenant by mastee. (a) To teach apprentice. 2.— It is a condition precedent to the liability of a master, on a covenant to teach an apprentice his trade, that the apprentice should be ready and willmg to be taught by the master. Eayment v Minton, 35 Law J. Eep. (n.s.) Ex. 163; 4 Hurls' & C. 371 ; Law Eep. 1 Ex. 244. (4) To refund onfaUure of health of apprentice. 3.— An apprentice deed contained a covenant by the master, that in the event of the hpalth of tlie apprentice, J. D, failing, so as to incapacitate him from following the business, before the 1st April, 186&, he woi;ld refund 50^., the indentures to become null and void, the prodiiction at any time before April 1, 1866, of a certificate signed by tw8 medical men, testifying as to the fact to be conclusive evidence. J D died on August 4 1865, and on March 24, 1866, two medicll men signed a certificate to the effect that, on June 11 1865, J D was permanently incapacitated by di- sease from following the business. This was served on the master on March 28, 1866 and the return of the 50/. demanded :-Held, the master AEBITEATION (A). was bound to repay it. Derby v. Number, Law Eep. 2 C. P.247. Stamps on indentwres. [Sea Attoeney, 3.] (C) JuEisDiOTioN OF Justices. 4, — Under the 4 Geo. 4. e. 34, s. 2, the Justice of the Peace has jurisdiction to inquire into and hear a complaint made by an apprentice, claiming wages dxie from his master notwithstanding the term of apprenticeship had expired and the in- denture of apprenticeship determined before the complaint was made ; and an apprentice sworn to give evidence touching such complaint, who has given false testimony upon the hearing of the complaint, may be convicted of perjury. The Queen v. Froiid, 36 Law J. Eep. (n.s.) M. C. 62 ; Law Eep. 1 C. C. E. 71. AEBITEATION. (A) Submission to aebiteation. (a) Validity and effect of agreement to refer. (i) Jurisdiction of the Cou/rt of Chancery. (c) Amendment and revocation of (d) MaMng submission a rule- of Court. (B) COMPULSOET EEFEEENCE. (C) Aebiteatoe. (a) Power and duty. \b) Excess of authority. ( nership to N, in payment of a private debt which he owed him, but such endorsement was a fraud- ulent preference, and N had notice of its being a fraud on the firm. S subsequently committed an act of bankruptcy, on which he was made bank- rupt, and N received the amount of the several bills of exchange at maturity : — Held, on appeal from the Court of Common Pleas (38 Law J. Eep. (N.s.)C.P.273;LawEep.4C P. 354) that th- amount so received by N was received to the use of the assignees of S, and B, the solvent partner, and that they jointly could sue K for such amount in an action for money had and received. Heilbut and others v. NevUl, 39 Law J. Eep. (n.b.) C. P. 245 ; Law Rep. 5 C. P. 478. Quaere — If such assignees could be joined with B in an action of trover against N for the con- version of the bills. Ibid. 16. — An insolvent debtor must not assign all or nearly all his effects to one creditor, so as to put it out of the debtor's power to carry on his trade. But an assignment is not necessarily fraudulent when it does not include the whole of the trade effects, or when the debtor gets a present equivalent for his goods. The Heart of Oak, 39 Law J. Eep. (n.s.) Adm. 16. The assignment of a security to a particular creditor, even when bankruptcy is inevitable, if the assignment be not made voluntarily, is not necessarily a fraudulent preference. Ibid. A debtor mortgaged a ship to one creditor, leaving himself scarcely any assets, and at the time of the mortgage both the mortgagor and creditor knew that the mortgagor was practically bankrupt : — Held, that such mortgage was executed by way of fraudulent preference, and therefore void. Ibid. 17. — Assignment by a trader of all his property to secure an antecedent debt of 460Z., and further advance of SOOl. (of which last amount only 1501. was proved to have been advanced) : — Held, that the deed was not void under 13 Eliz. c. 6, or as a fraudulent preference. Mien v. Bonnett, Law Eep. 5 Chanc. 677. (3) Under the Bankruptcy Act, 1869. 18. — The fraudulent preference by a debtor of one or more over all his creditors, which is made void (not voidable only as it was under the former law) by sect. 92 of the Bankruptcy Act, 1869, is the same fraudulent preference as was invalid before, for the same reason, and under the. same circumstances. The motive or view which may have actuated the debtor wholly or partially is not material. BANKRUPTCY (C). 4a ■unless it has also induced him, without pressure or just request from his creditor, to give him a preference over his other creditors. Ex parte Fhineas Craven, re Abram Craven and 'Marshall, and Re Abram Craven's separate estate, 39 La\r J. Rep. (n.s.) Bankr. 33 ; Law Rep, 10 Eq. 648. ^See also Coi.onial Law, 22 ; and infra (E) 85, (H) 58, 65.] (6) Evidence of. [See infra (N) 103, 185.] («) Debtor summons. 19. — A creditor for a sum not less than 501. is entitled to take out a debtor's summons, notwith- standing that he has sued out a writ of attach- ment in the Lord Mayor's Court, and served it on -persons holding property of the debtor of a larger amount than the debt. In re Giies, ex parte Mauritz, 39 Law J. Rep. (n.s.) Bankr. 56 ; Law Rep. 5 Chane. 779. (C) Petition fob adjudication. (a) Who may petition. 20. — A became indebted to B, upon a judg- ment, in the sum of 59Z. ; he owed no other debts, except some of very trifling amount, and one to his own attorney, for defending him in the action brought by B. The only assets he had possessed he had sold, in order to raise money to defend the action : — Held, reversing the decision of the Com- missioner, that he might petition against himself in bankruptcy. In re Ensby, ex parte Ensby, 35 1 Law J. Rep. ^N.s.) Bankr. 23. 21. — Where a ci-editor of a non-trader had filed a petition under the Bankruptcy Act, 1861, ti. 70, duly served it upon the bankrupt, and then aban- doned it, another creditor was not permitted to take up the proceedings and apply for adjudication upon such petition. In, re Bristow, ex parte Em- manuel, 37 Law J. Rep. (n.s.) Bankr. 9 ; Law Rep. 3 Chauc. 247. 22. — A joint-stock company may be apetitioning creditor under the Bankruptcy Act, 1861. In re Calthrop, 37 Law J. Rep. (n.s.) Bankr. 17 ; Law Rep. 3 Chanc. 252. Where a, non-trader debtor left the reabn, a petitioning creditor sought leave to serve him abroad, and upon the application for such leave the solicitor for the debtor appeared and opposed, and there was reason ta believe that the solicitor was in communication with him, though being examined he refused to give any information. Leave being given to serve the petition in !Pranoe, a clerk was sent abroad, who, however, failed to find the debtor. It was held, that the whole of these pro- ceedings constituted reasonable efforts to effect ser- vice ; and the Court being satisfied that at least the proceedings upon the application had become known to the debtor, even if the actual efforts made by the clerk in France were not known, held that the case came within the 4th rule of section 70 of the Bankruptcy Act, 1861. Ibid. (i) Petitioning creditor's debt. 23. — A breach of trust was committed in the year 1867 by investing the trust funds upon an in- adequate security. A decree of the Court of Chan- cery was made in the year 1866, ordering one of the trustees to pay certain sums, as instalments, in respect of the loss arising from the breach of trust. One of these instalments being unpaid, a petition in bankruptcy was presented : — Held, that •the adjudication founded thereon was bad, the debt being an equitable debt. In re Blencowe, ex parte Blencowe, 36 Law J. Rep. (n.s.) Bankr, 18; Law Rep. 1 Chanc. 893. 24. — A debt which has been proved under a former adjudication may be used as a petitioning creditor's debt in support of a petition for a second adjudication under -which it is sought to impeach the first. In re Wieland, ex parte Wieland, 39 Law J. Rep. (n.s.) Bankr. 46; Law Rep. 5 Chane. 486. The power given by the 80th section of the Bankruptcy Act, 1869, c. 3, to direct the transfer of proceedings from one Court to another is not confined to proceedings commenced since the Act came into operation. Ibid. 25. — The drawer of a bill of exchange, who has taken it up after an act of bankruptcy committed by the acceptor, but before adjudication, has a debt making him a good petitioning creditor for adjudi- cation against the acceptor on the footing of that act of bankruptcy. Ex parte Cyrue, re Broadridge, Law Rep..^ Chanc. 176. 26. — ^The 90tti section of the Bankruptcy Act of 1861, is to be construed as a remedial enactment, and no debt founded on contract is sufficient to warrant an adjudication of bankruptcy against a person not a trader, unless contracted at a time ■when he might have known that he thereby made himself liable to the bankruptcy laws, that is, after the passing of the Act of 1861. William.i v. Harding, 36 Law J. Rep, (n.s.) Bankr. 26 ; Law Rep. 1 E. & 1. App. 9. Therefore, where a shareholder in a company which was dissolved and ordered to be wound' up before the passing of the Act of 1861, was settled on the list of contributories in respect of such shares, it was held, by the House of Lords, revers- ing the decision of Lord Westbury, that a sum due from such person in respect of calls made after the passing of the Act of 186 1 , did not constitute a good petitioning creditor's debt, upon which the official manager could found a petition for an adjudication in bankruptcy against the debtor, the debt not having been contracted after the passing of the Act of 1861 within the meaning of section 90 of that Act. Ibid, (Per Lords Chelmsford and Lord Kingsdown,). Even assuming the debt to be a debt contracted' after the passing of the Act of 1861, it did not con Btitute a debt due to the official manager upon which he could sue out a commission of bank- ruptcy. Ibid. (c) Against whom petition may be brought. ( 1 ) Trader, who is. 27. — A person who works a slate quarry in the ordinary way upon lease from the owner is not a trader within the meaning of the bankrupt laws ; and purchasing a stock of tools and materials, and seUing them again to the quanymen, which appears to be the custom in quaiyies, does not constitute 46 BANKRUPTCY (D), (E). .trading on the part of such a person. In re Cle- land, 36 Law J. Eep. (N.s.)Bankr. 33;LawEep. 2 Chanc. 466. A person dealing in shares of joint-stock com- panies, but not as a general broker, is not a trader within the meaning of the bankrupt laws. Ibid. There is no objection to an adjudication of bank- ruptcy in a District Court of Bankruptcy against a trader, on the ground that the acts of trading were out of the district. Ibid. (2) Frivilege of Parliament. 28. — A peer of Parliament is subject to the provisions of the Bankruptcy Act, 1861. The DuJce of Newcastle v. Morris, Law Eep. 4 E. & I. App. 661 ; 40 Law J. Eep. (n.s.) Bankr. 4. (D) Adjudication, and annulling thereof. 29. — Wliere the legal requisites to support an adjudication of bankruptcy exist, the Court will not annul it, except on very strong equitable grounds. Ex parte Upfill, in re XJpfill, Law Eep. 1 Chane. 439. 30. — Sections 93 and 97 of the Bankruptcy Act, 1861, not being clear as to whether a fully secured creditor should be inserted in the schedule of a debtor petitioning for adjudication against himself, though the doubt is cleared up in the affirmative by General Order in Bankruptcy, 1 ith October, 1861, No. 4, the Court reversed the decision of the Commissioner, who had annulled the adjudication on the ground of the omission ; the Court being of opinion that there was no fraud, and that it was at liberty to relax the G-eneral Order. Ex parte Sampson; In re Cob- ham, Law Eep. 1 Chanc. 476. 31. — In addition to the provisions of section 70 of the Bankruptcy Act, 1861, a non-trader is en- titled, after adjudication, under the provisions of section 104 of the Bankrupt Law Consolidation Act, 1849, to time to shew cause against the adju- dication. In re Hepburn, 36 Law J. Eep. (n.s.) Bankr. 48. 32. — Where the creditors' assignee of a bank- rupt, adjudicated on his own petition, desires to annul the adjudication, and to present a petition for adjudication on an earlier act of bankruptcy, for the purpose of disputing the validity of certain mortgages by the bankrupt, he should apply early after his discovery of the facts. Application re- fused where he took no steps for two months. Semble — It is not necessary that the bankrupt should consent to the application. Ex parte Davis and Benton, in re Davis and Denton, Law Eep. 2 Chanc. 363. 33. — Where, after adjudication of bankruptcy, three-fourths of the creditors agree to an arrange- ment deed, and the creditors who have proved as- sent to a petition of the bankrupt to annul, the Court has power to annul the adjudication, and the bankrupt need not adopt the course pointed out by sections 110-185 of the Act of 1861. In re Jones, ex farte Jones, Law Eep. 3 Chanc. 1 44. 34. — A" adjiidication in bankruptcy cannot be made where an order has been made on a debtor summons staying all proceedings under the sum- mons unconditionally. Ex parte Johnson, in re Johnson, Law Eep. 5 Chane. 741. Adjudication in Barbadoe»: effect - of sub- aeguent adjudication in England. [See Colonial Law, 12.] Anmilling adjudication foumded on assign- ment of banlcrupts effects. [See Compo- sition DEED, 67, 102.] (E) Liquidation by aeeanuement. (a) Besolution and petition for. ■ 35.— The Bankruptcy Act, 1869, 8. 125, subs. 7, enacts that "the appointment of a trustee under a liquidation shall, according to circumstances, be deemed to be equivalent to, and a substitute for the presentation of a petition in bankruptcy, or the service of such petition, or an order of adjudi- cation in bankruptcy." Nevertheless, the words " notice of a petition for liquidation having been presented," may be substituted for the words "no- tice of a bankruptcy petition having been pre- sented," in s. 87 ; and a petition for liquidation has the same effect as a petition in bankruptcy in cases under that section, although the trustee in liquidation be not appointed within the fourteen days there mentioned. Ex parte Keys, in re Skin- ner, 39 Law J. Eep. (n.s.) Bankr. 28 ; Law Eep. 10 Eq. 432. An execution in respect of a judgment for a sum exceeding 60^. levied by seizure and sale of the goods of a trader debtor cannot be protected by s. 96, subs. 3, of the Bankruptcy Act, 1869, since such an execution is in itself an act of bankruptcy by s. 6, subs. 5, and s. 95 is subject to the pro- visions in s. 87. Ibid. A sheriff seized a trader's goods in an execution in respect of a judgment for a sum exceeding 53/., sold them, and retained the proceeds. Within fourteen days after, the debtor filed a petition for liquidation, and notice thereof was served on the sheriff. A trustee was not appointed within fourteen days : — Held, that the execution was not protected by s. 95, subs. 3 ; that the petition for liquidation had the same effect as a petition in bankruptcy, so far as to bring the case within s. 87 ; and that the sheriff must retain the pro- ceeds till a trustee in liquidation should be ap- pointed, and pay them, under that section, to the trustee when appointed. Ibid. 36. — The votes of creditors in favour of reso- lutions for a liquidation by arrangement, are determined by their signatures to the resolutions, and a resolution signed by the requisite number of creditors is duly passed, although such cre- ditors may have voted against the resolution on a show of hands at the creditors' meeting. Ex parte Fooley, in re Russell, Law Eep. 5 Chanc. 722. 37. — Where a judgment-debtor has taken no notice of the service on him of a debtor's sum- mons, nor of the filing of a petition for adjudi- cation in bankruptcy, until the day appointed for the petition being heard, and has then himself filed a petition for liquidation . by arrangement. BANKEUPTCY (F). 47 and oTjlained and served on his creditor an ex parte injunction restraining him from taking further proceedings in bankruptcy: — Held, that the creditor's legal right to an adjudication in bankruptcy would not be interfered with, and therefore that the order for the injunction must be discharged. In re Williams, ex parte JDimond, 39 Law J. Eep. (n.s.) Bankr. 47 ; Law Eep. 5 Chanc. 743. (i) Title of trustee. 38. — ^Where a debtor's estate is being liqui- dated by arrangement under the Bankruptcy Act, 1869, instead of in bankruptcy, the words " date of the appointment of the trustee " must be sub- stituted for the words " date of adjudication " in subs. 3 of s. 95. Ex parte Veness, re Gwynn, 39 Law J. Eep. (N.s.)Bankr. 23 ; Law Eep. 10 Ect.419. A judgment creditor issued execution for a sum under 50i. against the goods of a trader debtor, and the bailiff seized &e goods, and advertised the sale. After the seizure, the sale was prevented from taking place on the day advertised by the claim of the holder of a bill of sale, and before the sale could be effected, the debtor filed a peti- tion for liquidation under the Bankruptcy Act, 1869, a receiver was appointed, and an injunction granted by this Court to restrain the sale. The goods never were sold, and a trustee in liquidation was appointed : — Held, that the execution was not protected by subs. 3 of s. 95, since it had not been completed by seizure and sale before the date of the appointment of the trustee, and that the goods were the property of the trustee. Ibid. 39. — Under file Bankruptcy Act, 1869, a trus- tee under a liquidation has the same powers as a trustee under a bankruptcy ; and though by s. 125, subs. 4, " the liquidation by arrangement shall be deemed to have commenced as from the date of the appointment of the trustee," yet the title of the trustee does not date only from his actual appoint- ment, and there may be dealings with the debtor's property prior to that date which he is entitled to call in question. Ex parte Todhunter; in re Brad- bury Norton, 39 Law J. Eep. (n.s.) Bankr. 1 7 ; Law Eep. 10 Eq. 425. A sheriff seized the goods of a non- trader debtor ■under an execution, and under Judge's order sold them and paid the proceeds into Court. Between the seizure and the sale the debtor filed a petition in liquidation under the Bankruptcy Act, 1869, and notice thereof was given to the sheriff and the execution creditor before the sale. After the sale a trustee in liquidation was appointed, and the execution creditor obtained payment of the money out of Court without notice to the trustee : — Held, that the question must be decided as if the petition for liquidation had been a petition in bankruptcy presented before the ssJe, followed by an adjudica- tion after sale ; and that assuming the filing the petition for liquidation to be an act of bankruptcy, yet the execution creditor, having seized before notice thereof given, was within the principle de- cided in Edwards v. Scarshrooh (32 Law J. Eep. (n.s.) Q. B. 45) and was entitled to retain the pro- ceeds against the trustee. Ibid. (F) Peoop. (a) Annuity. 40. — An annuity payable under a deed of se- paration between husband and wife, with a pro- viso that it should cease to be payable on their coming together again and cohabiting as man and wife, is not capable of valuation under the 176th section of the Bankrupt Law Consolidation Act, 1849 ; nor is such an annuity within the meaning of " other sums of money " mentioned in the 164th section of the Bankruptcy Act, 1861. Mudge v. Rowan, 37 Law J. Eep. (n.s.) Ex. 79 ; Law Eep. 3 Ex.86. 41. — An annuity deed provided, that if the an- nuitant refused, neglected, failed, or became inca- pable to perform the stipulations contained in it, the annuity was to ceaSe ; that, among other things, the annuitant should use his best endeavours to preserve, extend and promote the success of a cer- tain business, and not impede its success by any act, neglect, omission, or default ; that he should perform such services and duties as certain per- sons should reasonably require ; that he should not carry on a certain business during a certain time and within a certain area ; and that all disputes should be referred to arbitration : — Held, that such annuity was not capable of valuation under 12 & 13 Vict. c. 106, s. 175, and therefore not barred by a deed of assignment made by the grantor for the benefit of his creditors. Brett v. Jackson, 38 Law J. Eep. (n.s.) C. p. 139 ; Law Eep. 4 C. P. 259. (i) Contingent debts and liabilities. 42. — ^A borrowed money of B, and executed a deed of assignment, by way of mortgage to B, of a policy of assurance on his own life, with a covenant to keep up the annual payments for premiums. A became bankrupt : — Held, afSrming the judgment of the Court of Exchequer Chamber, that there • was not a liability to pay money upon a contingency • provable under the 1 78th section of the Bankruptcy Act, 1849. Mitcalfe v. Hanson, 35 Law J. Eep. (n.s.) Q. B. 226 ; Law Eep. 1 E. & I. App. 242. 43. — In January, 1866, a sum of money in con- sols was lent to the promoters of a bill before Par- liament. _ The plaintiffs, the defendant and others entered into an undertaking with the lenders that if the bill was thrown out the consols should be returned, and that if it passed (which was the event that happened) an equal amount of stock should be transferred to the lenders, and a sum in the nature of interest on the value of the consols at the time they were lent, from the end of six months to the date of the transfer, should be paid to the lenders. In the following April the defen- dant was adjudged bankrupt. In July he obtained his order of discharge. In August the bill was passed, but the consols were not transferred till the May following, and the plaintiffs were there- upon compelled to pay, under their agreement, a sum of money as the equivalent for interest: — ■ Held, in an action against the defendant for con- tribution in respect of the amount so paid, that his bankruptcy afforded no answer to the claim, as his liability could not have been valued at the data 48 BANKEUPTCY (F). of the adjudicatiott so as to be provable, either under the 12 & 13 Viot. e. 106, s. 178, or 24 & 26 Vict. c. 134, s. 154. Cary and another v. Dawson, SSLawJ.Eep. (n.s.)Q,.B. 300; 10 Best &S. 663; Law Eep. 4 Q. B. 668. (c) Bills and notes. 44. — Before the Bankrupt Law Consolidation Act, 1849, came into operation, a certified bankrupt gave to a creditor a promissory note for the amount of a debt incurred before the bankruptcy. After the passing of that Act, the 204th section of which enacts that a bankrupt shall not he liable upon any promise to pay a debt discharged by his certi- ficate, the bankrupt, ha%-ing paid off part of the money due on the promissory note, gave a fresh promissory note for the balance, in substitution for the original note : — Held, that the validity of the new note was not affected by the Act of 1849, the note in substitution for which it was given having been given at a time when it was lawful for a bankrupt .to renew a debt contracted prior to his bankruptcy. Ex parte Edwards, in re Pryterch, 35 Law J. Eep. (n.s.) Bankr. 11. (d) Covenant or promise, 45. — The defendant having transferred into the plaintiffs name shares in a mine conducted on the cost-book principle as security for a debt, cove- nanted with the plaintiff to indemnify him from all calls which might be made upon such shares, and all charges; liabilities and costs that might attach to the said shares. The defendant became bank- rupt, and the plaintiff was afterwards compelled to pay in respect of such shares certain debts of the mine which accrued before the bankruptcy : — Held, in an action on this covenant for not indem- nifying the plaintiff against such payment, that the defendant's liability was not to pay money upon a contingency within the meaning of section 178. of the Bankruptcy Act, 1849, (12 & 13 Vict. e. 106), nor did the plaintiff stand in the position of surety for the defendant within the meaning of sec- tion 173 of that act, and that therefore the bank- ruptcy of the defendant was no bar to the action. Betteley v. Stainsby, 36 Law J. Eep. (n.s.) C. P. 293 ; Law Eep. 2 G. P. 668. 46. — The plaintiff rented a room of the defen- dant, who was tenant of the whole house under P, the owner. The defendant's rent being in arrear, P put in a distress, and seized the plaintiffs goods. To obtain the release of his goods the plaintiff was obliged to pay 15Z. to P. The defendant then be- came bankrupt, and obtained his order of dis- charge ; subsequently to which the plaintiff com- menced an action to recover from the defendant compensation for the injury and loss sustained by the plaintiff in consequence of the defendant allowing the rent to be in arrear : — Held, that the right of action was not barred by the discharge in bankruptcy, inasmuch as the defendant was not liable, " by reason of any contract or promise, to a demand in the nature of damages," within the meaning of the 153rd section of the Bankruptcy Act, 1861, so as to make the claim of the plaintiff provable under the bankruptcy. Johnson v. Skafte, 38 Law J. Eep. (n.s.) Q. B. 318 ; 10 Best & S. 727 ; Law Eep. 4 Q. B. 700. (e) Partners, 47. — A solvent partner cannot prove in bank- ruptcy against the estate of his co-partner, so long as there are joint creditors unpaid, although evidence be offered that the joint estate is ample' to pay the joint creditors. Ex parte BAsa, in re. Motion, 36 Law J. Eep. (n.s.) Bankr. 39. 48. — The rule in bankruptcy that a firm will not be allowed to prove a debt in the separate bankruptcy of one of its members, unless the debt was contracted in a trade distinct from the part-' nership, will be strictly observed. And where the bankrupt mjember of a firm of merchants was also a banker, and it was stipulated that he should act as the banker of the firm, accepting and endorsing' the bills : — Held, that the balance of accounts due- from the bankrupt as such banker was not prov- able against his separate estate. Ex parte Mavde, in re Braginton, Law Eep. 2 Chanc. 850. (/) Secured creditor. 49. — A creditor of a person who became insol- vent in 1837, and whose debt and interest was secured by a mortgage of a contingent interest of the debtor, stood upon her security, it being con- sidered sufficient, as thfi eijuity of redemption was sold for 1f>l. In 1867 the contingency failed, and the security became worthless. In 1866 further property fell into the insolvency : — Held, that the- creditor was not precluded from then proving her debt, either upon principles of bankruptcy or in-; solvency. Ex parte Peake, in re Brodie, Law Eep. 2 Chanc. 453. 50. — ^A customer of a bank wishing to over- draw his account, procured a surety to the extent of 3001. The guarantee provided that all dividends, compositions and payments received by the bank should be taken and applied as payments in gross, and that the guarantee was to apply to and secure any ultimate balance which should remain due. The intending debtor gave to the surety an equitable mortgage to secure him from loss. After- wards he executed a creditors' deed. The account was then overdrawn to the extent of ilOl. By arrangement between the assignees and the surety, the mortgaged property was sold, and the latter received out of the proceeds of the mortgaged pro- perty 300/., and paid it to the bank: — Held, that the bank was entitled to prove for the whole ilOl. The Midland Banking Company, Limited, v. Chambers, 38 Law J. Eep. (n.s.) Chanc. 478 ; Law Eep. 4 Chanc. 398. 51. — ^Where parties who have in their possession property which formerly belonged to a bankrupt, but which they.bonsl fide claim as their own abso- lute property, come forward to prove a debt under the bankruptcy, stating that they have no security,, the Commissioner in Bankruptcy has no jurisdic- tion to decide the question of ownership ; the holders must be admitted to prove for their whole debt, without prejudice to such right, if any, in the property, as the assignees might by proper inde- pendent proceedings assert. Ex parte Bippon, in re Andrew, Law Eep. 4 Chanc. 639. BANKRUPTCY (G), (H). 49 62, — Certain speculators in cotton at C, in America, applied to Messrs. J & Co., of C, to purchase cotton for sale in England, at the risk and for the profit of the speculators. J & Co. applied to a Liverpool firm of F & Co., to raise the necessary funds, which they did from a bank by letter of credit on New York ; the arrangement being that J & C were to draw on F & Co., and indorse to the bank, F & Co. accepting the bills of lading to be indorsed to the bank direct, and the good^ to be consigned to F & Co. Both F & Co. and J & Co. became bankrupt, and the cotton was insufficient to cover F & Co.'s acceptances : — Held, that the bank was entitled to prove against F & Co. for the entire amount of their acceptances, without deducting the value of the cotton, F & Co. not being the sole owners of the cotton. Ex parte English and American Bank, in. r» Eraser, Trenholm ^ Co., Law Eep. 4 Chanc. 49. 53. — The sale of goods which had been seized in execution was suspended by an interpleader order fbr seven days ; on the seventh day the execu- tion debtor was adjudicated bankrupt on his own petition, after which the goods were sold : — Held, that notwithstanding the interpleader order, the execution creditor was still a creditor having security within the meaning of the 184th section of the Bankruptcy Law Consolidation Act, 1849, and that therefore, not having sold before the adju- dication, he was only entitled to receive a rateable part of his debt. O'Brien v. Brodie, 35 Law J. Eep. (n.s.) Ex. 188 ; 4 H. & C. 544 ; Law Eep. 1 Ex. 302. {g) Bovble proof. 54. — Two firms, one composed of A B, the other of A B & C ; carried on business at Liver- pool and Pernambuco respectively. An English adjudication of bankruptcy was made against A & B, and the holder of a bill drawn by A B & C on A & B proved under if and received a dividend. Afterwards A B & C failed in Pernambuco, and the same creditor proved and received dividends on his bill under that liquida- tion : — Held, that he ought not to receive any further English dividend without refunding the Brazilian dividends, but could not be ordered to refund the English dividend already received. Ee Dean, ex parte Mdlor, 3 Be Gex, F. & J. 760. {h) Set-off. [See Set-off, 1, 7-] (i) Damages or costs. [See DrvoECE, 139, 156; Arbest, 6.] Q") Colonial Statute. [See CdLONiAi, Law, 36.] (G) MuTTTiL CEEDIT. 55. — Where A before executing a deed of in- spectorship, which was afterwards registered under the Bankruptcy Act, 1861 (24 & 25 Vict. c. 124), deposited bills of exchange with a bank for collec- tion when due, and the authority to collect and receive the money on the bills remained unrevoked up to the execution of such deed; — Held, that there Digest, 1865-70. was a credit given by A to the bank within the meaning of the mutual credit clause of the Bank- rupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106, s. 171) ; and that the bank, therefore, was entitled to set off the amount collected on such bills against a debt due from A to the bank. Dadabkai Naoroji and another v. the Chartered Bank of India, Australia and China, 37 Law J. Eep. (n.s.) C. p. 221 ; Law Rep. 3 C. P. 444. 56. — The defendants accepted two bills of ex- change drawn by J & Co., who undertook to provide funds before maturity, and as collateral security deposited with the defendants cotton, coffee, and certain bills of exchange. The defendants dis- counted away the bills so deposited, and obtained the assent of J & Co. to their selling the goods and receiving the proceeds, and acted thereon. But after the cotton was sold, and before the coffee was sold, J & Go. became bankrupt. The proceeds of the deposited bills and goods left a balance in the hands of the defendants after payment of the two bills accepted by them, but a larger balance was owing by J & Co. to the defendants on other matters. The plaintiffs, who were assignees in bankruptcy of J & Co., brought an action to re- cover the balance of the proceeds of the deposited bills and goods :— Held, on appeal from the Court of Common Pleas (38 Law f. Eep. (k.s.) C. P. 1 1 1), that the plaintiffs were not entitled to succeed, in- asmuch as the only question was whether at tlie time of the bankruptcy of J & Co., thftre was such a mutual credit between them and the defendants as to entitle the latter to retain the proceeds of the coffee against the larger balance owing to them, and that after the arrangement authorizing the sale of the cotton and coffee there was such a mutual credit. Astley and another v. Gwmey and others, 38 Law J. Eep. (n.s.) C. P. 367 ; Law Eep. 4 C. P. 714. 57. — Where joint debtors are sued for a joint debt, and one of them is bankrupt, sec. 171 of the Bankruptcy Act, 1849, does not enable them to plead as a set-off a cross debt due to them from the plaintiff before the banlcruptcy. For a set-off must be between persons in the same right, and is only available by those who could bring a cross-action. This decison was based on Staniforth v. Fdlowes (1 Marsh, 184), where it was held that 5 Geo. 2. c. 30, s. 28 (which does not essentially differ from the above section), only related to mutual credits between the assignees of bankrupts and other per- sons, and not to the cases where the credits exist between the bankrupt together with some one else on the one hand and other persons on the other. New Quehrada Co. v. Carr, 38 Law J. Eep. (n.s.) C. P. 28.; ; Law Rep. 4 C.P. 651. (H) TltANSAOmONS AFFECTED BY BANKRUPTCY. 58. — To counts in trespass to the house and goods of the plaintiffs, as assignees of H, a bank- rupt, the defendants pleaded that before the bank- ruptcy, H (in consideration of their becoming gua- rantees for him) agreed with them that cm the happening of a certain event, they might summarily and without notice to H, enter his house aind pre- mises, take away and sell his goods ; that the H 5') BANKRUPTCY (I). event had happened, and that the defendants thereupon, by virtue of the said licence, and with- out notice of any act of bankruptcy committed by H, and before the filing of the petition, broke and entered the house and seized ths goods : — Held, that the facts stated in the plea constituted a good, answer, as they amounted to a " dealing or trans- action to be deemed valid notwithstanding the act of bankruptcy," within the meaning of the 133rd section of the Bankruptcy Law Consolidation Act, 1849. Krehl and another v. The Great Central Gas Consumers Gompany, The Giiaratitee Society, and another, 39 Law J. Eep. (n.s.) Ex. 197 ; Law Eep. 5 Ex. 289. lAabiliiy of wife's property after husband's ban&riiptcy. [See Bakon and Feme, . 39.] Effect of bankruptcy on power to grant re- newed leases. [See Mabkiage Setile- MEKT, 8.] Windinff-up : liability of bankrupt contri- butory. ■ [See Company (E) 180-182.] (I) Assignees. (a) What property passes to: order and disposition, and reputed ownership. 59. —The plaintiff purchased live stock from G, who became bankrupt within a w,»ek afterw.irds. Some of the animals were taken away by the plain- tiff at the time of the purchase ; tlie remainder were left on the vendor's premises, and were taken possession of by his assignees. In an action of trover against the assignees, the jury found that it was a notorious custom in the trade to leave pur- chased cattle on the vendor's premises for the ven- dee's convenience, for such time as might be agreed upon between them : — Held, that upon this find- ing, the animals were not at the time of the bank- ruptcy within the order and disposition of the bankrupt, within the meaning of the 125th section of the Bankrupt Law Consolidation Act, 1849. Priestley v. Pratt and another, assignees, ^c, 36 Law J. Eep. (n.s.) Ex. 89 ; Law Eep. 2 Ex. 101. 60. — An assign of a second mortgage of free- holds deposited his mortgage deeds by way of equitable mortgage ; no notice of the deposit was given to the first mortgagee. The first mortgagee, having notice of the second mortgage and the as- signment, contracted to sell under a power ; before completion, the depositor became bankrupt: — Held, that the assignees in bankruptcy were en- titled to the balance of the purchase-money due in respect of the second mortgage as against the de- positee, under the order and disposition section, 12 & 13 Vict. e. 106, s. 128. Barnes v. Pinkney, 36 Law J.'Eep. (n.s.) Chane. 815. 61. — A brother and sister took t > the business of their father, a farmer and cowkeeper, and bought the stock. They then agreed to caTry on business in partnership, but in the brother's name alone, the partnership of the sister being kept secret. She, however, lived on the farm, and helped her brother in carrying on the business. The partnership had lasted three years when he became bankrupt :• — Held, by the Court of Exchequer Chamber, revers- ing the decision of the Court below (36 Law J. Eep. (n.s.) Q-'B. 1 ; 7 Best & S. 67 ; Law Eep. 2 ft. B. 41), that the sister's interest in the partner- ship effects was not in the order and disposition of the bankrupt. Reynolds v. Bowly, 36 Law J. Eep. (n.s.) Q. B. 247 ; 8 Best & S. 406 ; Law Eep. 2 a. B. 474. Per WiUes, J. and Bramwell, B., that the case was not within the statute, as the sister's interest in the partnership effects, though possibly in the apparent ownership of the bankrupt, was not in his sole possession, order or disposition by the consent of the true owner in the sense intended by the statute. Ibid. Per Kelly, C.B., Byles, J., Keating, J., Pigott, B., and Montague Smith, J., overruling Ex parte Ehderby, 2 B. & C. 389, and Smith v. Watson, 2 B. & C. 401, that a secret partnership is not within the meaning of the bankruptcy law as to reputed ownership, as there is a joint ownership, and no true owner as distinct from the apparent owner. Ibid. 62. — E, a butcher, contracted to supply an asy- lunj with meat for six months, to be paid for within a certain time after the delivery of the meat. Before any meat had been delivered E assigned the contract to H, who alone supplied the meat to the asylum under E's contract, doing so in E's name. R having afterwards become bankrupt, without any previous notice to the asylum of the assignment of the contract to H : — Held, by Bovill, C.J., Byles, J., and Keating, J. (Willes, J. dissen- tiente), that the debt due from the asylum for the meat which had been, so supplied by H, prior to E's bankruptcy, passed to E's assignee in bank- ruptcy, as being in E's order and disposition as the reputed owner at the time of his bankruptcy, with the consent of the true owner within the meaning of section 126 of the Bankruptcy Act, 12 & 13 Vict. e. 106. Cook v. Hemming, 37 Law J. Rep. (n.s.) C. p. 179 ; Law Eep. 3 C. P. 334. The usual order by the Court of Bankruptcy, authorizing the assignee in bankruptcy to bring an action for the recovery of the debt, is not an order for the sale and disposal of the property for the benefit of the bankrupt's creditors within the meaning of the said 125th section. Ibid. 63. — A,i who had effected an insuraoee on his own life, deposited the policy with his bankers by way of equitable mortgage, and upon subsequently calling at the insurance office to take up A dishonoured cheque, which he had given in pay- ment of the premium on his policy, told the secre- tary, in the course of conversation, that his policy was in fact held by his bankers. A afterwards be- came bankrupt : — Held, that the statement made by A to the secretary was not sufficient notice to the company that his policy was held by A's bankers by way of equitable mortgage, so as to take it out of his order and disposition at the date of his bankruptcy. Edwards v. Martin, 35 Law J. Rep. (n.s.) Chanc. 186 ; LawEepI 1 Eq. 121. 64.— Sectfon 103 of the 24 & 25 Vict. c. 134, which enacts, that "every adjiidication against any prisoner for debt so brought np as aforesaid shall, unless the Court shall otherwise direct, hare relation back to the date of his commitment or BANKRUPTCY (I). 81 detention, as the case may be, shall be as valid and effectual for all purposes as if It had been made under any other provisions of this Act," has reference to petitioners petitioning in formfi, pauperis, and brought up and adjudicated bankrupts under sections 98 and 99. Egiington, appellant, v. Bramwell, official assignee, ^c, respondent, 35 Law J. Rep. (n.s.) Q. B. 163 ; Law Rep. 1 Q.B. 494. A debtor having been arrested under a ca. sa. and lodged in prison, petitioned in form& pauperis, under section 98, and was adjudicated a bankrupt under section 99. Goods which were in the ap- parent order and disposition of the bankrupt at the time of his arrest, by the consent of the true owner, were seized by the true owner after the first day of the imprisoument^and before the bank- rupt filed his petition. At the time of the seizure the true owner had notice of the arrest and im- prisonment. The bankrupt's assignee brought an action against the true owner for the conversion of the goods, and an order was made for the sale of them, under section 125 of the 12 & 13 Vict. 106 : — Held, (afSrming the judgment of the Court below, 33 Law J. Rep. (n.s.) Q. B. 130), that section 1U3 of 25 & 26 Vict. c. 6, applied to the case of this debtor, who was " brought up " within the mean- ing of that section, and operated so that the goods passed to the bankrupt's assignee ; since the effect of the section was to render the adjudication as complete as if it had been made on the first day of the imprisonment. Ibid. Held, also, that sections 98 — 103 formed a dis- tinct chapter in the Bankruptcy Act, 1861, and were to be read with reference to 1 & 2 Vict. c. 110, s. 57 (repealed), and that to sections 98 — 103 section 133 of the Bankrupt Law Consolidation Act, 18^9, had no application; so that whether the seizure of the goods by the true owner was or was not a bonS, fide transaction, without notice of a prior act of bankruptcy, within section 133 of the Act of 1849, that section did not apply to the present case. Qusere^— Whether a prisoner, against whom an adjudication is made by the registrar, under section 101 of the 24 & 25 Vict. c. 134, is a " prisoner for debt so brought up as aforesaid " within the meaning of section 103. Ibid. 65. — A firm executed a bill of sale to the plaintiff of certain machinery, and covenanted to insure and keep the same insured from loss by fire in some office to be approved of by the plaintiff during the continuance of the security, and in default with liberty to the plaintiff to insure, and to charge the premiums on his security. Lees v. Whitd(y, 35 Law J. Rep. (n.s.) Chanc 412 ; Law Rep. 2 Eq 143. The insurance effected in the names of the firm, and the machinery was afterwards destroyed by fire. On the day of the fire the firm assigned all their property to trustees for the benefit of their creditors. The assignment, which was intended to operate under the Bankruptcy Act, 1861, was exe- cuted by the several partners and the trustees, but was destroyed before its execution by any creditor. Ibid. The plaintiff gaye notice of his claim to the insurance office, having previously had notice of the deed of assignment and of its destruction. The firm afterwards became bankrupt: — Held, that the benefit of the policy did not pass to the plaintiff under the covenant to insure. Ibid. Held, also, that the execution of the assign- ment was an act of bankruptcy, and that the plaintiff, having had notice thereof, could not claim against the assignee in bankruptcy. Ibid. 66. — A bankrupt delivered a policy of in- surance on his life to the defendant, with the in- tention of giving the defendant an interest in the money receivable under the policy, as security for a debt due to him from the bankrupt. No notice of the transaction was given to the insurance office : — Held, that the policy itself, as well as the money receivable under it, was in the order and disposition of the bankrupt; and that therefore the assignee was entitled to recover that document from the defendant. Green v. Ingham, 36 Law J. Rep. (n.s.) C. p. 236 ; Law Rep. 2 C. P. 525. The case of Gibson v. Ooerlmry, 7 Mee. & W. 555; 10 Law J. Rep. (n.s.) Ex. 219, distinguished. Ibid. 67. — ^A person having mortgaged a policy of insurance on his own life, afterwards became bankrupt, and died four years after the bankruptcy. The mortgagee thereupon gave notice to the in- surance office and claimed the proceeds of the policy. No previous notice had been given of the mortgage or of the bankniptoy : — Held, that notice after the bankruptcy was insufficient, and that the policy remained in the order and dis- position of the bankrupt. Webb's Policy, 36 Law J. Rep. (n.s.) Chanc. 341. No act of an assignee for value after bankruptcy of the assignor can give validity to the assignment as against the assignees in bankruptcy. Ibid. 68. — Shares in a company deposited by the registered owner with a bank as security, and assigned, but no notice given by the bank to the directors : — Held, not to be in the order and dis- position of the depositor, the directors having been informed by the depositor, in reference to the matter of business relating to other unpaid shares in the company held by him, that the first- mentioned shares were deposited with the bank. Generally as to notice to directors. Ex parte Agra Bank, iii re Worcester, 37 Law J. Rep. (n.s.) Bankr. 23 ; Law Rep. 3 Chanc. 565. 69. — A person entitled to leasehold premises for a long term of years agreed to underlet them to a tenant for three years, and, whenever called upon to do so by the tenant, to grant to him a lease for three years, seven years* or the remainder of the term that he had it in his power to grant, such lease to contain all the usual covenants for protecting the interests of the grantor. The three years expired without the option being exercised. The tenant, however, contih&ed in pos- session until he became bankrupt, and his interest in the premises was sold by his assignee to a purchaser, who entered into possession and filed a bill for specific performance of the agreement : — Held, affirming the decree of the Master of the Rolls, 35 Law J. Rep. (N.s.)Chanc. 387 ; first, that the option might be exercised at any time during the tenancy ;■ secondly, that the bankrupt had such m h2 S2 BANKEUPTCY (K). interest in lands, as passed to his assignee, either under the 142nd section of the Bankrupt Law Consolidation Act, 1849, or under the 145th section; and, thirdly, that such an interest was not prevented from so passing by the absence of the word "assigns" in the agreement. Buckland V. Pwpillon, 36 Law J. Eep. (n.s.) Chano. 81 ; 35 Beav. 281 ; Law Rep. 2 Chanc. 67. [See also Bill of Sale, 2, 8 ; FtxTUEES, 4, 7 ; Sale of Goods, 10; Colonial Law, 34.] (i) Bight of, as against creditors. 70. — At a meeting of the creditors of a bank- rupt held after the appointment of the creditors' assignee, the majority passed a resolution by which it was resolved that no further proceedings should be taken in bankruptcy on the ground that it was advisable to accept an oifer by the bankrupt to take all his estate and effects, and pay all his creditors a certain composition in one month from that time. This resolution having been confirmed at an adjourned meeting, hold pursuant to section 110 of the Bankruptcy Act, 1861, tlie assignee directed the messenger to withdraw from possession. The day after he had so withdrawn, and before the bankrupt had obtained his order of discharge, a non-assenting judgment creditor seized the bankrupt's goods in execution : — Held, on an inter- pleader issue, that the goods were the assignees, as against such creditor, since the assignee had never given up possession of them, nor had his property in thera been devested out of him, whether the resolution was or not within the said 110th section. M'Donald v. Thompson, 38 Law J. Eop. (n.s.) C. p. 364 ; Law Eep. 4 C. P. 747. 71. — Where a deed, alleged to amount to an act of bankruptcy, had been executed more than twelve months before an actual" bankruptcy occurred: — Held, that although under section 88 of the Bankruptcy Act, 1849, such deed could not, after twelve months, be relied on as constituting the act of bankruptcy on whi<:h a fiat should be made, yet that after bankruptcy had occurred in fact, the deed might be contested by the assignees in bankruptcy. Allen v. Bonnet, Law Eep. 5 Chanc. 577- (c) Salaries and expenses of official assignees. 72. — The salaries of the official assignees pro- vided by this section are in discharge and satis- faction for all stahitory duties performed by them, whether in bankruptcy or under the Winding-up Acts, or any other statutory provisions ; and the official assignees are not entitled to any further remuneration, even in respect of bankruptcies which occurred before this Act. In re Graham, 1 Law Eep. Ghana. 175. (K) Of the bankeupt. (a) Protection from arrest. 73. — Under a petition for protection presented according to the 211th section of " The Bankrupt Law Consolidation Act, 1849," the petitioner was adjudicated bankrupt on February 1 1 th, assignees were chosen on February 29th. On May 1st, after the proceedings had advanced as far as the last examination, creditors applied to have the adjudi- cation annulled for the purpose of a new one being obtained on a creditors' petition, under which dealings might be overreached by relation : — Held, notwithstanding the length of time from the adju- dication, and the opposition of the bankrupts, that the order ought to have been made, and the same was made accordingly on appeal.the assignees con- senting. Ex parte Chamnd, re Nicholson, 3 De Gox, F. & J. 747. 74, — An order for protection, granted under the 12&13 Vict. c. 106,.s. 112, does not protect a bankrupt from arrest at the suit of a subsequent creditor, even thoxigh he has not passed his final examination. FhUlips and others v. Poland, 35 Law J. Eep. (n.s.) C. P. 128 ; H. & E. 235; Law Eep. 1 C. P. 204. 75. — The certificate of the Commissioner grant- ing the petitioning debtor protection from arrest, after the agreement for compromise has been con- firmed at the second meeting, only protects the debtor from arrest, nothis goods from seizure under a fi. fa. of a dissenting creditor. The final certi- ficate of the Commissioners, under section 13, alone has that effect. Davies v. Percy, Law Eep. 1 C. P. 256. 76. — A bankrupt committed to gaol, by virtue of the Acts, 43 Eliz. c. 2, s. 7, and 4 & 5 Will. 4, e. 76, s. 78, for non-payment of penalties incurred by him in refusing to support his mother, may law- fully, notwithstanding his protection in baikruptey, be detained in custody for the full term of his im- prisonment, as the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 116), s. 112, in grant- ing protection, excepts cases where the bankrupt is in custody for a debt contracted by reason of a prosecution against him, whereby he has been con- victed of an offence ; and a committal under the two statutes previously mentioned is in the nature of a criminal process. Bancroft v. Mitchell, 36 Law J. Eep. (n.s.) Q. B. 257 ; 8 Best & S. 5 48 ; Law Eep. 2 Q. B. 549. 77. — Where a person is convicted for infringe- ments of copyright under section 6 of 25 & 26 Vict, c. 68, and a penalty of Hi. for each offence is im- posed on him, or in default imprisonment for four- teen days for each offence ; this is a conviction of a criminal offence, and having become bankrupt or executed a composition deed, he is not entitled to bis discharge from prison for such conviction, under section 1-12 of 12 & 13 Vict. c. 106. Ex parte Gi'aves, in re Prince, Law Eep. 3 Chanc. 642. 78. — The Bankrupt Law Consolidation Act (12 & 13 Vict. 0. Iii6), B. 113, which makes "any ofScer" who shall detain a bankrupt in custody after he sh'all have produced his protection liable to penalties, does not apply to the goaler or gover- nor of a prison to which the bankrupt is taken after his arrest, but only to the officer actually arresting the bankrupt. Myers v. Veitch, 38 Law J. Eep. (n.s.) Q. B. 316 ; Law Eep. 4 Q. B. 649. 79. — A person in prison as an outlaw upon a writ of capias utlagatum is not " in prison or custody for debt" within the meaning of the 112th BANKEUPTCy (L). 53 section of the Bankrupt Law Consolidation Act. Ex parte Stoffel, in re Stojfel, 37 Law J. Bep. (n.s.) Bankr. 4; Law Rep. 3 Chane. 240. S having been" outlawed at the suit of a creditor, was arrested on a capias utlagatum and put in prison. He filed a petition in Imnkruptcy against himself, upon which he was adjudicated a bank- rupt, and; having surrendered, he obtained his order of protection. He then applied to the Com- missioners, under section 1 1 2 of the Act of 1 849, for release itom custody. His application was refused upon the ground that, being an outlaw he had no locus standi in the Court : — Held, on appeal, thjit the bankrupt did not come within the words of the section in question, because he was not in cus- tody for debt, but by reason of contempt of Court committed by him. Consequently, the Court had no jurisdiction to release him. The order of the Commissioner was therefore confirmed ; but the reason given in the order for refusing the release was struck out, no opinion being expressed as to the locus standi. Ibid. 80. — A, an insolvent, on receiving his discharge, executed the usual warrant of attorney in respect of after-acquired property, on which the provisional assignee entered up judgment. Afterwards A be- came bankrupt, and obtained his order of discharge in bankruptcy. His debts under the insolvency remained unpaid, and they were not proved under the bankruptcy. Having subsequently become entitled to certain property, and refusing to trans- fer it to the provisional assignee in insolvency, an order was obtained from a Commissioner of the Court of Bankruptcy for his committal, notwith- standing his discharge in bankruptcy, until he should make the transfer, and was, on appeal, af- firmed by the Lords Justices. Ex parte Fain, in re Pain, 37 Law J. Kep. (n.s.) Bankr. 21 ; Law Eep. 3 Chanc. 639. Attachment against bankrupt co-respondent. [See Divo.ECB, 139, 155.] [And see Aebest (K).] (fi) Offences [see Obdeb of dischabge (L)]. (c) Actions and suits hy and against^ Sight to be heard in Equity. [See Limitations, Statute of, lOJ Action by: security for costs. [See Costs at Law, 21.] Flea of bankruptcy. [See Plead- ing AT Law, 8.] (L) Oedee of discharge. (a) On suspension of proceedings. 81. — A bankrupt, the proceedings in whose bankruptcy have been suspended by a resolution under section 110 of tlie- Bankruptcy Act, 1861, is entitled to apply for an order of discharge, but the bankrupt is not exempt from such reasonable ex- amination as to eoiiduct as may be had in other cases under the 159th section. In re Petrie, 37 Law J, Eep. (n.s.) Bankr. 20; Law Bep. 3 Chanc, 232. 82. — Where by resolution of the creditors- the proceedings in bankruptcy are suspended against the debtor, they agreeing to a composition from the nature of which a discovery of the debtor's assets is unnecessary, the debtor is entitled to a discharge without going through the form of a final examina- tion. Ex parte TUston, in re TUston, Law Eep. 2 Chanc. 199. (A) When granted or refused: offences: punish- 83. — The Court of Bankruptcy should form its opinion as to the satisfactory nature of the bank- rupt's accounts from the proceedings on iis own file, and where nothing unsatisfactory appears on those proceedings, it is bound to grant the discharge, and cannot adjourn the consideration until the bankrupt has put in his answer to a bill in Chancery, on the chance that a better aecouut might be there disclosed. Ex parte Lee,' in re Lee, Law Eep. 3 Chanc. 1-50. See also Ex parte Sayne, in re Eayne, Law Eep. 3 Chanc. App. 162. 84. — The acceptance of accommodation bills is a contracting of debts, and if done without reason; able or probable ground of expectation of being able to pay the saine, is an offence within the meaning of the 159th section of the Bankruptcy Act, 1S61. Ex parte Mee, in re Mee, 36 Law J. Eep. (n.s.) Bankr. 41 ; Law Eep. 1 Chanc. 337. " 85. — To bring a bankrupt within this Act, so as to disentitle him to his " discharge," on the ground of having incurred a debt without having a reasonable or probable ground of expectation of ^eing able to pay the same, some specific debt must be pointed out as having been so incurred ; it is not sufficient to show that the bankrupt systemati- cally lived beyond his income. Ex parte Brund- ritt, in re Caldwell, Law Eep. 3 Chane. 26. 86. — Merchants who after they had become in a state of insolvency, or close upon it, continued to give their usual extensive orders for goods of a peculiarly speculative character (cotton in the year 1866), for purposes of speculation, and not to meet the w;ants of customers and so to keep their trade tdgether : — Held, to have been guilty of " rash and hazardous speculation " within the meaning of this section. Ex parte Heyne, in reHeyne, Law Eep. 2 Chane. 650. 87.— A trader carrying on his business by means of money procured by the discount of accommoda- tion bills, not purporting to be trade acceptances, does not come within this definition, of " carrying on trade by means of fictitious capital:" — Held also, that overdrawing his banking account when insolvent was not " contracting a debt " within the meaning of this Act. Ex parte Harrison, in re Baillie and Harrison, Law Eep. 2 Chanc. 195. 88. — The Court has no power, under the 3rd clause of the Bankruptcy Act, 1861, s. 159, to award two distinct punishments for the samo offence. Ex parte Marks, in re Marks, 35 Law J. Eep. (n.s.) Bankr. 16; Law Eep. 1 Chane. 334. 89.— Damages and costs incurred by a co-re- spondent are not a debt "contracted" within the 54 BANKRUPTCY (M), (N). meaniEg of sect. 159 of the Bankruptcy Act, 1861. Be Mew and Thorne, 10 W. E. 790, followed. Ex parte Clayton, in re Clayton, Law Eep. 5 Chane, 13, (c) Allowance to. [See No. 6 supra.] (M) Pbosecution of bankrupt for mis- DEMEANOB. 90. — Where a bankrupt had been prosecuted, by direction of the Court, under three indictments, - in two of which he was charged jointly with other persons with conspiracy, it was held that the costs of all these indictments ought to be allowed out of the chief registrar's fund. In re Morris Levi, 36 Law J. Eep. (n.s.) Bankr. 49 ; Law Eep. 2 Chanc. 293. 91. — Leave had been given by a district Court of Ba^ikruptcy to A, -the creditors' assignee, to prosecute a bankrupt for a misdemeanor under the Bankruptcy Act, 1861, s. 221. The order stated that the Court granted to A a certificate of his having been directed to act as prosecutor, but that it was not the intention of the Court, and that A did not require, that any expenses of the prosecu- tion, beyond those allowed by the Court before which the trial took place, should be paid out of the " Chief Eegistrar's Account," and that extra costs should be defrayed out of the bankrupt's estate, and any deficiency be made good by A personally :^Held, in reversal of the Commis- sioner's order refusing an application by A for payment of his extra costs out of the "Chief Eegistrar's Account," that the certificate directed to be given to A being a certificate under the Bankruptcy Act, 1861, s. 223, and unconditional, could not be qualified and made conditional by a manifestation of an intention on the part of the Commissioner to that effect. Ex parte Spooner, in re Hammond, 37 Law J. Eep. (n.s.) Bankr. 2 ; Law Eep. 3 Chanc. 259. 92. — It is the duty of the Court of Bankruptcy to direct a prosecution under the Bankruptcy Act, 1861, s. 221, wherever there is reasonable evidence of guilt to lay before a jury ; and irresistible evi- dence is not required. Ex parte Stallard, in re Howard, 37 Law J. Eep. (n.s.) Bankr. 7; Law Eep. 3 Chanc. 408. (N) Practice. (ffi) Appeals. 93. — No appeal lies under sect. 71 of the Bank- ruptcy Act, 1869, to the Chief .ludge in Bank- ruptcy from an order made by a County Court for the trial of issues of fact before itself, when the order is such as the County Court has jurisdiction to make under s. 72. Ex parte Charles King An- derson, re Matthew Anderson, 39 Law J. Eep. (n.s.) Bankr. 32 ; Law Rep. 5 Chanc. 473. 94. —The ordinaiy rules of practice in respect of motions in Chancery apply to appeals in Bank- ruptcy ; and therefore two clear days' notice of an appeal motion in Bankruptcy is sufficient. Ex parte Roche, in re Bickerstaff, 37 Law J, Eep. (n.s.) Bankr. 16 ; Law Eep. 3 Chanc. 238. A creditor's usual 'signature to particulars of demand is sufficient, notwithstanding the 68th Order in Bankruptcy (1852). Ibid. 95. — The Court of Appeal in Bankruptcy will not interfere with the discretion of the Commis- sioner in inflicting punishment upon a bankrupt who has brought himself within this section, unless upon very clear grounds. Observation by Lord Cairns, L.J., on the offence of contracting debts " without any reasonable or probable ground of expectation of being able to pay the same." Ex parte Bayley, in re Ainswortk, Law Eep. 3 Chanc. 244. 96. — Where, under the 130th Section of the Bankruptcy Act, 1869, the Lord Chancellor has ordered any pending business to be disposed of by the registrar of a Bankruptcy Court, an appeal will lie from the decision of such registrar to the Court of Appeal in Chancery. Ex parte Blair, in re Mackle, 39 Law J. Eep. (n.s.) Bankr. 45 ; Law Eep. 5 Chanc. 482. So also when proceedings have been transferred from a district to a county Court. E!x parte Pal- mer, in re Palmer, Law Eep. 6 Chanc. App. 470. The jurisdiction of the Court of Bankruptcy to tax the bill of costs of the solicitor to the estate is independent of the Attorneys and Solicitors Act, 6 & 7 Vict. u. 73, B. 37, and the registrar is bound to tax such bill, without special circumstances, notwithstanding the lapse of twelve mouths from its delivery. Ex parte Blair, in re Mackle, 39 Law J. Eep. (n.s.) Bankr. 45 ; Law Eep. 5 Chanc. 482. 97. — An appeal by the bankrupt from a refusal of a Commissioner to annul an adjudication of bankruptcy obtained in England by residents in Scotland, as petitioning creditors, against a trader, whose trade was wholly in Scotland, was directed to stand over, with liberty to the bankrupt to bring an action to try the validity of the adjudication. On the failure of the petitioning creditors to appear to the action within a time limited by the Court for the purpose, the Court annulled the adjudica- tion. Ex parte Wollheim, in re Wollheim, 3 De Gex, J. & S. 389. Pending the proceedings the goods of the appel- lant, seized by the messenger, had been sold by arrangement: — Held, that ttie official assignee was entitled to deduct from moneys received by him from the sale moneys expended in warehousing and selling the goods, but not his costs of proceedings in Court, the Court directing that these should be paid by the petitioning creditors, who like the official assignee, were respondents to the petition, and ordering that the petitioning creditors should pay to the bankrupt the moneys to be deducted by the official assignee. Ibid. 98. — On a bankruptcy appeal the Court will not allow fresh evidence on matters which were in issue before the Commissioner to be used, unless the applicant has been taken by surprise. In re Lascelles, Law Eep. 1 Clianc, 127. 99. — On an appeal from a Commissioner in Bankruptcy, it is open to the appellant to dispute both the finding on the facts and the conclusiin of law, without excepting to the certificate. In re Rowland and Cranks!iaw,La,w Eep. 1 Chanc 421. BANKEUPTCY (N). 65 (6) Solicitors. 100. — A solicitor, who liad been solicitor to a former assignee, admitted, while attending in sup- port of the claim of another client, that he had re- ceived certain moneys, on account of the bankrupt's estate, but he claimed deductions. The Commis- sioner, subsequently, made an order requiring him to pay the amount without deductions : — Held, that such an order cannot be made ex parte.. Ex parte Prance, in re Kemp, Law Eep. 5 Chane. 16. 101. — Upon an application to annul an adjudi- cation in bankruptcy. A, a solicitor of the Court of Bankruptcy, appeared in Court for the bankrupt, not as his solicitor, but as representing his solici- tors, whose managing clerk A was. The Commis- sioner refused to hear him, and the application was therpiipon dismissed : — Held, that the privi- lege given by the Bankruptcy Act, 1861, s. 212, to solicitors to appear and plead personally in Courts of Bankruptcy, is confined to solicitors appearing as solicitors of the particular clients. In re Broad- house, ex parte Broadhouse, 36 Law J. Eep. (n.s.) Bankr. 29 ; Law Eep. 2 Chanc. 655. Held, also, that clerks to solicitors, though themselves soUcitors, not being placed on the record in the matter, or named in the proceedings, cannot claim to appear as agents to their employers, and in this capacity exercise the statutory right. Ibid. Held, also, that having regard to the fact, that the bankrupt was present in Court and taken by surprise, the matter ought to be remitted to the Commissionel" to enable the bankrupt to appear and be heard. Ibid. Jurisdiction to tax bill of costs. [See No. 96, ' ante.} (c) Fees. 102.— Under statute 12 &]3Vict. c. 106, s. 114, which enacts that the petitioning creditor shall, at his own costs, file and prosecute his petition until the choice of assignees, the petitioning cre- ditor is personally liable to the messenger of the Court of Bankruptcy for his fees and expenses in- curred in taking possession of the bankrupt's estate up to that period. Stubbs v. Som, H. & E. 89 ; Law Eep. 1 C. P. 56. After the choice of assignees the trade assignee is liable for the messenger's subsequent costs and expenses, if there is anything to shew that the messenger has acted under his express directions or from which an express employment by him may be legitimately inferred. Ibid. In an action by a messenger for an amount comprehending charges incurred both before and after the choice of assignees, it appeared that the defendant, who was a petitioning creditor, had in- structed the plaintiff to take possession of certain effects of the bankrupts ; that he subsequently became trade assignee, and by letters addressed to the plaintiff by his, the defendant's, solicitors, gave express directions to the plaintiff in relation to the management of the estate : — Held, that the defendant was liable for the whole amount claimed. Ibid. (d) General. 103.— A deed of assignment fpr the benefit of creditors, not registered through want of the necessary assents, may be used, even though un- stamped, as evidence of an act of bankruptcy. In re Gotddivell,: ex parte Squire, 38 Law J. Eep. (n.s.) Bankr. 13 ; Law Eep. 4 Chanc. 47. Where an adjudication was obtained upon the bankrupt's own petition, and on the same day, but at a later hour, another adjudication in an- other Court was obtained by a creditor upon an earlier act of bankruptcy, the Court stayed pro- ceedings under the former adjudication. Ibid. 104. —The adjournmeht of the final examina- tion of a bankrupt sine die is no bar to a future application to pass the examination, although by the words of the order liberty to apply be not given ; and therefore, where the Commissioner refused to appoint a day for the bankrupt to pass his final examination, on the ground that it had already been adjourned sine die, the matter was upon appeal referred back to the Commis- sioner to name a day. Ex parte Tripp, in re Tripp, 35 Law J. Eep. (n.s.) Chanc. 5. A trader became bankrupt in 1857. His last examination was adjourned sine die, and he then went abroad without having obtained his certifi- cate, and carried on business abroad till 186'), when he returned to this country and presented a second petition in bankruptcy. An application to pass his last examination under the old bank- ruptcy was again adjourned sine die, on the ground that he had failed to explain matters laid to his charge in 1867, and also that he had given no satisfactory account of his subsequent transac- tions ; and by an order made in the second bank- ruptcy the last examination was also adjourned sine die, with liberty to apply when the proceed- ings under the former bankruptcy should.be com- pleted; and, upon appeal, both orders were affirmed. Ibid. 105. — Although where a bankrupt has made a full disclosure, the Court ought not to adjourn his examination sine die merely upon, an impression that he has not told the truth, yet where it sees that a better account can be given, notwithstand- ing the oath of the bankrupt to the contrary, it wil do so. In reHughes, Law Eep. 3 Chanc. 147. 106.— A person examined adversely on a sum- mons in bankruptcy, by creditors and assignees is under no obligation except that of fully and suffi- ciently answering questions put to him. Where, therefore, a perton on such an examination did not mention a right of set-off, which he had against a sum claimed to be due from him to the estate, and subsequently the unrealised credits were sold : — Held, that he was not precluded by the omission from insisting on the right of set-off, as against the purchaser. Suggestio falsi or sup- pressio veri to operate as a ground for the post- ponement of an equity, must occur in the trans- action which dat locum contractui. Holt v White 3 De Gex, J. & S. 360. ' ' 107.— Trustees who, as managers of a trading company, are creditors of a bankrupt, are entitled after their debt has been admitted to vote under .66 BANKEUPTCy— BAEON AND FEME (A). section 110 of the Bankruptcy Act, 1869, upon the question -whether the proceedings in bankruptcy are to be suspended. Ex parte Prothero, in re liarfoot, Law Eep. 3 Chanc. 823. 108. — A clerk who has charge for safe custody of his master's documents has not such a posses- sion of them that he can be compelled, under the 100th section of the Bankrupt Law Consolidation Act, 1849, to produce them to the Court before adjudication. Ex parte Byrne, in re Leighton and Bennett, 35 Law J. Eep. (n.s.) Bankr. 43 ; Law Eep. 1 Chanc. 331. Costs of appeal were given where the order appealed against was discharged. Ibid. BAEON AND FEME. , [See DiTOECE.] (A) Joint acts of, and conteacts betweeh. (B) Husband. (a) Eights and liabilities in reject of wife's property. (1) Js to real estate. (2) As to personalty, including chases in action. (jh) Liability for necessaries supplied to wife. (C) Wife. (a) Authority to pledge husband's credit. (J) Contract as to real estate. (c) Acknowledgment of deed by. (d) Equity to a settlement. (e) Eight to dower. [See Dowee.] (/) Power of appointment. (D) Sepabate estate of wife. (a) How acquired. (b) Inability in respect of. (E) Sepaeation deeds. (a) Effect of (b) Specific performance of agreement for. [Married Woman's Property. 19 Geo. 4. e. 24, amended. Provision made for the protection of married women in respect of their earnings, their deposits in savings banlra, their property in the funds, and in joint-stock companies and societies, and personal and real property coming to them during coverture. Provisions as to policies of insurance effected by the wife and by the husband for the wife's benefit, &c., and as to their mutual liabilities, 33 & 34 Vict. c. 93.] (A) Joint acts of, akd conteacts between. 1. — A husband and wife agreed in writing to sell the wife's estate in fee to A, and subsequently duly conveyed the same estate to B: — Held, affirming the decision of Stuart, V.C., (37 Law J. Eep. (n.s.) Chanc. 467) ; that, as A knew that he was contracting to purchase the wife's estate, he took nothing under the agreement, and could not even compel the husband to convey his interest and re- ceive an abated price. Wilkiiuon v. Castle, Castle V. Wilkinson, 39 Law J. Eep. (n.s.) Chanc." 843 ; Law Rep. 5 Chanc. 534. 2.— The 25th section of 20 & 21 Vict. c. 85, (the Divorce Act) applies to property to which a wife is entitled in reversion at the date of decree, and which subsequently falls intal. On an appeal from the decision of Justices, under the 20 & 21 Vict. e. 43, ss. 2, 3, the appel- lant enters into the required recognizance within sufficient time, if he does so before the case is stated and delivered, although after the expiration of the three days allowed for applying for the case. Stanhope, appellant, v. Thorsby, respondent, 35 Law J. Rep. (n.s.) M. C. 182 ; H. & R. 459 ; Law Rep. 1 C. P. 423. By an order, made by the local authority ap- pointed by order of the Privy Council, under the 11 & 12 Vict. c. 107, s. 4, the removal of cattle wa^ prohibited, except fat cattle removed for slaughter with the licence of a Justice,- in . which such Justice shall state, inter ali4, that he has been satisfied by the evidence of an inspector, or otherwise, that no case of cattle plague has occurred within one mile from the premises from which such removal is to take place : — Held, that where such licence has been granted without fraud on the part of the person applying for it, the Sessions cannot inquire into the evidence on which the Justice acted who granted it, and though granted without any evidence, it protects the person who removes his cattle under it. Ibid. [And see Justice of the Peace, 1,] Cattle plague Orders ; disinfecting cattle trvicks. [See Caebiee, 19.] Cattle straying on highway. [See HiOH- WAY, 13.] Malioiozisly wounding oattle. [See that ' title;] CENTRAL CRIMINAL COURT. Under the Central Criminal Court Act (4 & 5 Will. 4. 0. 36), it is not necessary that two Com- missioners should sit together for the trial of an indictment, if there are one or more other Com- missioners sitting at the then sessions so as to be constructively present. And held by MeUor, J., Lush, J., and Hayes, J. (Cockburn, C.J. dubitante), that even if it was necessary that one of the alder- men or lay members of the commission should sit with the presiding Judge, such alderman or lay member need not sit continuously all through a trial, but may change from time to time with any other lay member of the same commission. Lever- son V. The Queen, 38 Law J. Rep. (n.s.) M.C. 97; 10 Best & S. 404 ; Law Rep, 4 Q. B. 394. Under the above Act, several Courts may sit at the same time in different parts of the building. Ibid. The Judge of the Sheriff's Court has jurisdic- tion to sit as a Commissioner upon the trial of an indictment at the Central Criminal Court Ibid. Under a commission of oyer and terminer the general Court may be divided into as many Courts as convenience requires, and each separate Court is to be considered as held, not only before the Judge actually sitting, but also constructively before all the members of the commission then acting under it. Ibid. CERTIORARL Discretion of Court to grant: order on County treasurer to pay money. [See Justice of the Peace, 4.] Stopping up highway. [See Highway, 9.] Lower Canada : appeal from Superior Court. [See Colonial Law, 7. I^rd Mayor's Court. [See Pkactice in Equity (H) 1.] CHAMPERTY. Agreement between solicitor and client. 1.— A plaintiff' agreed with a solicitor to give the latter a share in the benefit to accrue from a suit, upon being indemnified by him against the costs :— Held, that the agreement amounted to champerty and maintenance, but that, inasmuch as the plaintiff's title was vested in him prior to and independently of the agreement, it did not disqualify him from suing. , The Court there- tore made a decree in his favour, but marked Us disapproval of the contract by giving him no costs, mton V. Woods, 36 Law J. Rep. (n.s ) Chanc. 941 ; Law Rep. 4 Eq. 432. CHANCERY, HIGH COURT OP- CHARITY (A), (B). R3 Assignment of right to stte. 2. — A vendor sold and conveyed all his interest in certain real estate to the defendants under cir- cumstances which, as alleged in the bill, rendered the transaction fraudulent and void. Subsequently to such sale the vendor granted " all his part, share and interest," in the property to trustees upon trusts for himself during his life and after his death for his children. The infant children of the vendor having filed a bill to set aside the sale: — Held, on demurrer, that the volunj tary settlement was free from champerty, and passed the right to maintain the suit. Bicfeiii- son V. BurreU; IHckinson v. Burrell; Stourton v. Burrell, 35 Law J. Eep. (n.s.) Chanc. 371 ; 35 Beav. 257 ; Law Rep. 1, Eq. 337. Distinction drawn between the assignment of the estate, and of the bare right to sue. Ibid. CHANCERY, HIGH COURT OF. [See EaurrT Jueisdiction.] CHARITY. (A) CHiErrAEi.E Tetjsts Acts. (B) Devise and Bequest. (a) Validity of. (6) Construction of. ' (1) Trust or condition, (2) Cy-prks doctrine. (c) Failure of. (C) Administration of. (o) Scheme. (6) Swit by charitable legatee, (c) Trustee. [Further provisions made for the enrolment of charitable trust deeds, 29 & 30 Viet. e. 57.] [The Charitable Trusts Acts explained, amended, and in part repealed, 32 & 33 Vict. c.llO.] [Charitable donations and bequests (Ireland). The 7 & 8 Vict. e. 97 repealed by 30 & 31 Viet. c. 54 so far as it is inconsistent with that Act. and the two Acts to be construed together. 30 & 31 Vict. c. 54.] (A) Chaeitable Tettsts Acts. 1, — The Charity Commissioners have jurisdiction to admit a charity supported by voluntary donation to the benefit of the Charitable Trusts Act, 1853, upon a petition presented under the 63rd spction by an unduly constituted governing body. Hamil- ton V. Spottiswoode, 36 Law J. Rep. (n.s.) Chanc. 61. 2, ^The Charity Commissioners have jurisdic- tion in the case of a charity where the property is in England or Wales, though the income is to be applied elsewhere. In re Duncan, in re Taylor's Charities, 36 Law J. Rep. (n.s.) Chanc. 513 ; Law Rep. 2 Chanc. 356, . Semble — The Commissioners have also juris- diction where the property is not, but the applica- tion of the income is, in England or Wales. Ibid. 3 A was authorised by the will of a founder . of a school established for the benefit of the town of T, if he should be dissatisfied with the manage- ment or discipline of the school, or be of opinion that it was not of public utility, or for any reason be desirous of altering its management or objects, to make any such alterations, or to revoke and abolish the school, and to appropriate the funds as he should think fit, either for the purpose of some public charity or otherwise, without been answer- able to any jurisdiction for so doing. A, not having intimated any dissatisfaction with the school, or desire to interfere with its management, objects, or funds, received a requisition from the Charity Commissioners, acting on the suggestion of two inhabitants of T, to furnish accounts for the past two years ; and such requisition was enforced by the Lords Justices, in reversal of a decision of Malins, V.C. In re the Charitable Trusts Act, 1853, and the Charitable Trusts Act, 1855, ex parte the Charity Commissioners for Eng- land and Wales — Tamworth School case — 37 Law J. Rep. (n.s.) Chanc. 473; Law Rep. 3 Chane. 543. An endowment is not the less a charity within the meaning of the Charitable Trusts Act, and subject to the control of the Charity Commis- sioners, on account of its contingent liability to alteration or destruction. Ibid. The claim of a right to terminate a charity is not such an adverse claim as, under the Charitable Trusts Act, 1863, s. 16, excludes the jurisdiction of the Charitable Commissioners in relation to the management of the fund, so long as it con- tinues appropriated to charitable purposes. Ibid. [And see No. 22.] (B) Devise and Bequest. (a) Validity of. As to the validity or invalidity and effect of devises under the Mortmain Acts, [See Mortmain.] 4. — A testator who resided in the parish of T, bequeathed pure personalty to trustees to lay out and bestow the same " in such charities and other public purposes as lawfully might be in the parish of T " as the trustees in their discretion think fit : — Held, the bequest was good, the Court holding that the testator meant the gift to be for charities and public purposes for the benefit of the parish of T, and therefore not too general. Solan V. Macdermot, Law Rep. 5 Eq. 60. 5. — The above case afSrmed. Dolan v. Mac- dermot, Law Rep. 3 Chanc. 676. 6.— A legacy to the " Royal Geographical Society" or the "Royal Society" is a legacy to a charity. (Decree of Stuart, V.C, 38 Law J. Eep. (n.s.) Chanc. 62, aflSrmed.) Beaumont v Oliveira, 38 Law J. Rep. (n.s.) Chanc. 239 ; Law Rep. 4 Chanc. 309. A testator bequeathed legacies to several chari- table institutions, and directed that " all his said charitable legacies should be paid out of his puro personal estate." He died possessed of renl . estate in Madeira, and of mixed personalty and pure personalty in England. The pure personalty M 2 ,84 CHARITY i,B). M'as insufficient to pay in fall the charitable lega- .cies : — Held, (varying the decree of Stuart, V.C), that the proceeds of the Madeira estate, although not savouring of realty within the meaning of the Statute of Mortmain, did not fall within the words " my pure personal estate." Ibid. Held, also, in a suit to administer the testator's estate (varying the decree of Stuart, V.C), that the administration charges must be jiaid rateably out of the whole estate ; the charitable 1 egatees were entitled to the remainder of the pure personalty, and had a claim against the rest of the estate for so much of their legacies as should remain unpaid, but that thpit claim must abate in the proportion which the .personalty savouring of realty bore to the pro- ceeds of the Madeira estate, and that the chari- - table legatees must be allowed their costs of the . suit out of the estate. Ibid. , ' Tempest v. Tempest, 7 De Gex, M. & G. 470 ; 26 Law J. Eep. (n.s.) Chanc. 501, followed. Ibid. 7. — Bequests of legacies to various charitable institutions by name, followed by bequest of .residuary personal estate to trustees, " upon trust to divide the same to or an.ongst the different institutions, or to any other religious institution or purposes as they, the said trustees, may think proper, which disposition I leave entirely to their discretion : '*' — Held, affirming the decision of the Master of the Rolls, 38 Law J. Eep. (n.s.) Chanc. 613, that there was a good charitable bequest of the residue. Wilkinson v. Lindgrcn, 39 Law J. ■Eep. (n.s.) Chanc. 722 ; Law Rep. 6 Chanc. 670. (i) Construction of. (1) Trust or condition. 8. — Where a testator in 1641 devised lands to colleges at the universities for the " only use of education in piety and learning " of ten des- cendants of, and in default for the poor kindred .of, a class of persons : — Held, (reversing the 'M. E.) (see 38 Law J. Eep. (n.s.) Chanc. 686), that, upon the construction of the will, the colleges took beneficially without any obligation , to educate such descendants in any way other than as ordinary members of the colleges ; and .also, inasmuch as such had been the practice of the colleges since the detth of the testator, that so long an usage gave rise to a presumption that ,if the devise were ambiguous, the interpretation which had been put upon it was the right one. The Attorney General v. Sidney Sussex College, 38 Law J. Eep. (n.s.) Chanc. 666 ; 34 Beav. 654 ; "Law Eep. 4 Chanc. 722. Held, also, that the obligation to educate such descendants was no longer binding on one of the colleges as to which the University Commissioners hns made a statute " that subject to the legal rights of any person bene6cially interested under the will, the emoluments should be carried to the general .funds of the college. Ibid. (2) Cy-prh doctrine. 9. — A testatrix, among other charitable be- quests, gave legacies to the C P A Society in England, and the C P A Society in Ireland. There was no society of that name in Ireland, but there was there a society called the S A Society with precisely the same objects as the C P A Society in England: — Held, that the testatrix having indicated her intention to give this legacy to a charity having the particular objects fulfilled by the S A Society for Ireland, that Society was entitled to the fund, the Attorney General not objecting. In re- Maguire's Trusts, 39 Law J. Eep. (n.s.) Chanc. 710; Law Eep. 9 Eq. 632. , 10. — Certain funds were dedicated, by bequest and otherwise, at different times in the course of the eighteenth century, to the use of " the con- gregation of Protestant Dissenters called Pres- byterians within the borough of D." This congregation was first established in 1693. by a Presbyterian minister, who had been ejected under the Act of Uniformity. There was no distinct evidence as to the exact nature of the religious opinions of the original congregation, but it appeared that since the commencement of the present century, at which time a new chapel was erected and certain trusts were declared by deed in favour of the " congregation of persons styling themselves Presbyterians," the number of Presbyterians at D had gradually fallen off and given place to Baptists, so that in 1852 the con- gregation consisted of 88 Baptists and 9 Presby- terians; and in 1863, when the information was filed, it consisted of 151 Baptists and only 5 Presbyterians. All the ministers appointed since 1803 had been of the Baptist persuasion. A decree was made upon the information directing certain inquiries preparatory to the settlement of a scheme, whereupon a claim was set up by the English Presbytery in behalf of the orthodox Presbyterians living at D, and, in order to give colour to this cl&im, separate ser- vices were held in the town hall and elsewhere by a deputation from a neighbouring Presbyterian church : — Held, that the term "Presbyterian," as used by the various donors and in the deed of trust, did not import a requisition that any par- ticular religious doctrine or mode of worship should be taught or observed so as to take the case out of the operation of Lord Lyndhurst's Act ; that, upon the evidence, there was not, and had not for many years been, any strictly so- called Presbyterian congregation at D, and that the usage of the chapel and the funds for upwards of twenty-five years must be taken as conclusive evidence that the present congregation was en- titled to the enjoyment of the charity. The At- . tomey General v. Bunce, 37 Law J. Rep. (n.s.) Chanc. 697 ; Law Eep. 6 Eq. 563. Semble — If the present congregation had not been entitled under the Act, they would have been entitled upon the principle of cy-prfes. Ibid. (e) Failure of. 11.— Testator bequeathed certain sums of North American stock to the President and Vice Presi-' dent of the United States and the Governor of the State of Pennsylvania for the time being, upon trust to lay out 2,00(1 dollars in the purchase of freehold land in the State of Pennsylvania, and to CHARITY (Cj— CHILD. 85 aecunmlate the rents thereof, with the interest and dividends of the residue, until the whole should amount to 100,000 dollars, and then to apply the same, together with the land, in endowing a college for the instruction of youth in the State of Penn- sylvania ; and it was his will that moral philosophy should be taught therein, and a professor engaged to inculcate and advocate the natural rights of the black people of every clime and country until they should be restored to an equaUty in civil rights with their white brethren throughout the Union. The legatees declined to accept the trust : — Held, that the charitable gift, thqugh good, could not, under the circumstances, be carried into effect, and that the fund fell into the residue. New v. Bonaker, 36 Law J. Eep. (u.s.) Chano. 846 ; Law Rep. i Eq. 655. The Court will not settle a scheme to force a charity upon a foreign country, which the Govern- me:nt of that country declines to accept. Ibid. 13. — Bequest of 3,500i. " to the trustees of Mount Zion Chapel, and I appoint as trustees to the same A and G, and I direct that their receipt shall be a suf&cient discharge to my executors, and the money to be appropriated according to state- ment appended." There was no statement appen- ded : — Held, that it was not sufficiently clear that the purposes intended were charitable, and that the gift failed by reason of the trust being incom- plete and indefinite. Aston v. Wood, Law Eep. 6 Eq. 419. (C) Administeation of. (a) Scheme. 14. — The Court has jurisdiction to alter any scheme settled by it for the administration of a charity, and for the system of leasing the charity estates, whenever lapse of time or change of circum- stances makes an alteration desirable in the interest of the charity. TAe Attorneij General v. St. John's . Hospital, Bath, 35 LW J. Eep. (n.s.) Chanc. 207 ; Law Eep. i Chanc. 92. An award in 1716 by the Master of the Rolls, confirmed by a decree of the Court in 1717, em- powered the master of the hospital to grant new leases, for not more than three lives, at the old rents, and on fines which were not to exceed one year's value for a life, the rents and fines not to •be increased without the leave of the Court of Chancery. Thenceforward, down to 1864, it was the custom of the hospital to grant renewals to the tenants on fines, and the Court on four several applications, under the award, by the hospital or tenants, ordered renewals and settled the amount ■of the fines. On an information by the Attorney General, the Lords Justices made a declaration against the system of renewing leases on fines, but directed that regard should be had to the cases of lessees who had expended money on their lease- holds on the faith of a continuance of such system. .Ibid. , 15.— In distributing the increased income of .estates devoted to charitable purposes,^ where it is apportioned by the founder of the charity amongst ' .'different objects, the accretions are primi facie to ■be applied ratcably amongst the several objects of the charity ; and some valid reason for a preference must be shewn to induce the Court to deviate from this general rule of rateable apportionment. Nevertheless, if good cause for so doing exist, the Court has a discretion in settling a scheme to vary the proportions and objects of a charitable gift. The Attorney General v. Marohant, 36 Law J. Eep. (n.s.) Chanc. 47 ; Law Eep. 3 Eq. 424. A testator gave real festate to trustees in fee, upon trust to apply the rents in payment of 20^. a year towards the salary of a schoolmaster for the parish, and a like yearly sum towards the purchase of books for, and the repairs of a college library, and two sums of bl. a year for the poor of two parishes. The rents having greatly increased, the Court, in settling a scheme for their distri- bution, excluded the two parishes from partici- pation, on the ground that any augmentation of such a charity would be actually detrimental, and divided the accretions equally between the school and the college library. Ibid. [And see School.] (J) Suit by charitable legatee, 16. — Upon a bill filed by infants for adminis- tration of an estate, part of which was given for establishing a charity of which the infants would be the primary object: — Held, first, that such hill would lie ; secondly, that it might be proceeded with without an order or certificate of the Charity Commissioners, under the Charitable Trusts Act, 1863. s. 17. Braund v. The Earl of Devon, 37 Law J. Eep, (n.s.) Chanc. 463 ; Law Eep. 3 Chanc. 800. (c) Trustees. 17.— The Church Building Acts, 68 Geo. 3. e. 46, ss. 33-36; 59 Geo. 3. c. 134; and 3 Geo. 4. c. 72, ss. 1-29, do not enable the 'trustees of a charity, in whom land and an unconsecrated chapel thereon, attached to the charity, is vested, to convey such land and chapel to the Church Building Commissioners, although with the sanction of the managing body of the charity. Such a. conveyance would be a breach of trust. And a re-conveyance under such circumstances was de- creed, although the Ecclesiastical Commissioners had accepted the conveyance, the chapel had been consecrated, and a separate district assigned to it as a parish, under an Order in Council. Held, further, that under such circumstances, section 29 of the last Act did not constitute a bar to pro- ceedings by the lapse of five years. The Attorney General v. Bishop of Manchester, Law Eep. 3 Eq. CHAETEE-PAETY. [See Shipping.] CHEQUE. [See Bnx of Exchange.] CHILD. [See Paeent and Child.] 86 CHOSE IN ACTION-CHURCH AND CLERGY (A), (B). CHOSE IN ACTION. Assigvment of debt ; equitable plea. [See Pleading at Law, 14.] Assigmnent of commission in the Army. [See Army.] Assignment subject to or free from equities. [See Company (G), 27, 29, 32 ; Bond, 1 ; Railway Company, 31.] Assigmnent of Lloyd's bond : equitable set- ' off. [Pee Set-off, 3.] Assignment of policy of insurance : order afid disposition. [See Bankruptcy, 66.] Marriid woman's choses in action. [See Baron and Feme (B) (a) (2).] Notice of assignment. [See Trust and Trustee (D) 11] CHURCH AND CLERGY. [See Burials.] (A) Bishop, jurisdiction and functions of. (B) Cathedral Clergy. (C) Parson or incumbent, bights of. (D) Curates. (E) Parish Clerk. (F) Churchwardens. (G) Faculty. (H) Fees. (I) District and district church. (J) Private chapel or chancel. (K) Chapel: appointment of minister. (L) Church Building Acts. (M) Offences. (a) Desecration of churchyard. (A) Ferformance of services. (c) Eitcs, ceremonies, and ornaments. (d) Doctrine. (N) Ecclesiastical Courts : Pleading and Practice. (a) Statement of offence. (4) Abatement of suit. (c) JtiHsdiction under Church Discipline Act. (d) Practice. [Conseoration of churchyards, 30 & 31 Vict. c. 133, S.-9, amended by 31 & 32 Vict. c. 47.] [District church tithes, 28 & 29 Vict. c. 42, s. 9,v repealed ; and the designation of Ticar given to certain incumbents, 31 & 32 Viet. c. 117.] [Patronage of benefices : new parishes, 19 & 20 Vict. u. 104, s. 18, in part repealed and new pro- vision substituted, 32 & 33 Vict. c. 94.] [Clerical disabilities, 41 Geo. 3. c. 63 ; 5 & 6 Will. 4. c. 76, s. 28; and 3 & 4 Viet. c. 86, amended. Ministers of the Ecclesiastical Church enabled to relinquish their orders, 33 & 34 Vict. c. 91.] [Church buildings. Parish boundaries, 6 & 7 Vict. c. 37 and 7 & 8 Vict. t. 86, amended and in part repealed, 32 & 33 Vict. e. 74.] (A) Bishop, jurisdiction and functions of. 1. — The position of the Church of England in a colony which has an established legislature, and where no church is established by law, is that of a voluntary association. Colenso v. Gladstone, 36 Law J. Rep. (n.s.) Chane. 2. The jurisdiction of the bishop of a see erected in such a colony by letters patent, rests only upon compact, and is to be enforced through the lay tribunals, from which an appeal lies to the Sovereign in Council. Ibid. A coercive jurisdiction is not so essential a function of such a bishop as that the failure of the letters patent to create such a jurisdiction will deprive the bishop of his right to receive the income of a trust fund appropriated to the endow- ment of a bishopric founded by letters patent professing to create. such a jurisdiction. Ibid. 2. — R, a clerk in holy orders, who had lately held a benefice with cure of souls in the diocese of M, was presented to a living in the diocese of E. The Bishop of E, to whom R was wholly unknown, required the latter to produce letters commenda- tory from the Bishop of M. R failed to do this, and the Bishop of E, after lapse of six months-, collated his own clerk. To an action of quare im- pedit, brought by the patron, the Bishop of E |)leaded in effect that R did not bring from the Bishop of M sufficient testimony of his honest con- versation, ability, and conformity to the ecclesias- tical laws of England such as he (the Bishop of E) was bound by the laws of England to require. Also that the Bishop of E had good reason to be- lieve that R had been guilty of simony. It ap- peared that the bishop based the first part of his plea upon the 48th Canon, a.d. 1603 : — Held, that the Bishop of E had no right to refuse to in- stitute R on the grounds stated ; for that, first, the 48th Canon does not apply to institution to benefices at all ; secondly, if it did, there is no authority that the part of the 48th Canon upon which the plea was based has ever been adopted into the common law of England so as to be bind- ing on the laity, and an advowson is a lay inheri- tance : thirdly, the plea ought to have expressly averred the reason of the unfitness of the clerk, so that the sufficiency of the averment might be tried, if the unfitness were in learning or doctrine, by the spiritual, if in moral idoneity by the temporal Court. Semble — Notice to the patron should have been averred. Jhe Bishop of Exeter v. Marshall, 37 Law J. Rep. (n.s.) C. P. 331; Law Rep. 3E. & I. App. 17. Colonial church: Grown grant. [See Colo- nial Law, 29.] (B) Cathedral Clergy. 3. — The non-residentiary prebendaries of the cathedral churcTi of St. Paul are entitled to vote at a meeting of the chapter on the occasion of an election of a proctor to represent the chapter in Convocation, such right being reserved by 3 & 4 Vict. c. 113. The decision of the Courtof Common Pleas, 36 Law J. Rep. (n.s.) C. P. 28; Law Rep. 2 C. P. 60, reversed. Randolph v. Milman, 38 Law J Rep. (n.s.) C. P. 81 ; Law Rep. 4 C. P. 107. 4.— By 3 & 4 Vict. c. 1 1 3. s. 25, in the cathedral church of York, so soon as a vacancy shall occur CHURCH AND CLERGY (D). 87 in the deanery, and in the cathedral churches of Chichester, Exeter, Hereford, Salisbury, and Wells respectively, so soon as every person who was a member of the respective chapters of such churches at the passing of liis Act, shall cease to be such member, all the said canonries shall be in the direct patronage of the Archbishop of York and of the bishops of the said respective sees, as the cas.e may be, who shall respectively, upon the va- cancy of any canonry in such churches respectively, collate thereto a spiritual person, who shall there- upon be entitled to installation as a canon of the church to which he shall be so collated. Prior to the Act, 3 & 4 Vict. u. 113, the general chapter of the cathedral church of Hereford con- sisted of the dean, five canons or prebends resi- dentiary, and twenty-two canons or prebends non-residentiary. Of these the dean and the five canons residentiary, constituted wha,t was some- times called " the close chapter." Among the officers of the cathedral church was an ofl&eer termed the praelector, having certain spiritual duties attached to his office. The praelector was appointed as of right by the close chapter out of the non-resident canons, and on a vacancy occur- ing among the canons residentiary, the praelector succeeded to it as of right, a new praelector being elected out of the non-residentiary canons by the close chapter, while the ' non-residpntiary canons were appointed by the bishop. All the canons resi- dentiary holding office at the passing of the Act had died, but seven of the non-resident canons were still living : — Held, that on the death of the last of the canons residentiary so" holding office at the passing of the Act, the nominee of the bishop and not the praelector was entitled to sxicceed to the vacant canonry, as all that was contemplated by the legislature in preserving the rights of the " chapter" was to save the vested right of patron- age to the existing members of the close chapter, without any regard to the rights of the body out of which the selection was to be made, and that on the death of the last of the persons constituting the close chapter at the date of the Act, the patronage became vested in the bishop. Eegina V. The Dean and Chapter of Hereford, 39 Law J. Kep. (n.s.)Q. B. 197; 10 Best & S. 996; Law Eep. 5 ft. B. 196. Eesidentiary canon : right to vote for borough. [See Pabliamjsnt, 43.] (C) Parson oe incumbent, eights or. 5. — Although, as a general rule, a vicar has a right to cut timber for the purpose of applying it specifically to repairs of the vicarage premises, and possibly a right to sell the timber and buy with the proceeds an equivalent amount of timber in a more convenient place for the purpose of using it in such repairs, he has no right to cut timber for the purpose of selling it to raise a fund to repair dilapidations in the vicarage premises from his own previous neglect to repair. Sowerhy V. Fryer, 38 Law J. Eep. (n.s.) Chanc. 617 ; Law Eep. 8 Eq. 417. g, — An action does not lie against the personal representative of a deceased incumbent, at the suit of the succeeding incumbent, for permissive waste in respect of gravel dug out of an open gravel-pit in the glebe kinds by the parish suryeyor in the lifetime either of such deceased incumbent or of any of his predecessors. Bass v. Adcook, 37 Law J. Eep. (n.s.) C. p. 290 ; Law Eep. 3 C. P. 655. 7. — The rectory of S was an impropriate rectory which, after its surrender to the Crown, on the dissolution of monasteries, was granted by Queen Elizabeth to two persons, from whom the present rector derived title. Prior to the year 1826, the lay impropriator for the time being provided a curate to serve the church at an annual stipend of Z\l. 10s., which was not a charge on the rectory or on the tithes. In that year the living was aug- mented by the Governors of Queen Anne's Bounty, and, in consideration of such augmentation, the . then lay impropriator charged the rectory glebe lands, &c.,vrith the yearly rent-charge of 31/. 10«., payable to the curate for the time being. The curacy then became a perpetual benefice under 1 Geo. 1, Stat. 2, c. 10. The plaintiff was nominated, licensed and instituted as incumbent, in 1 852. He and his predecessors have always received Jor their own use the fees for brick graves and head- stones made and put up in the churchyard, but the lay impropriators have, from time to time, during living memory, let to tenants the glebe lands and the depasturing of the churchyard: — ■ Held, in an action brought by the plaintiff against the defendant, one of such tenants, for turning his sheep into the churchyard, that the right of pro- perty in the herbage was in the lay impropriator, and that, inasmuch as he had not granted it to the plaintiff i)y the endowment, the action was not maintainable. Greenslade v. Darby, 37 Law J. Eep. (n.s.) Q. B. 137 ; 9 Best & S. 428 ; Law Eep. 3 Q. B. 421. Benefice : right to vote for county. [Sea Parliament, 2-1-26.] Induction to benefice : writ de vi laica re- movend&. [See Colonial Law, 13.] Exemption from tolls^ [See Tuenpike, 2.] Conveyance of glebe lands : mines und minerals. [See Land Tax, 4.] (D) CUKATES. 8.— The Eev. J E Sedgwick, a duly ordained clergyman of the Church of England, was licensed by the Bishop of Manchester to perform divine service within an unconsecrated church, which was built by subscription, in the city and diocese of Manchester. Mr. Sedgwick had no nomination or stipend, and no district was assigned to the church. His licence having been revoked by the bishop, Mr. Sedgwick appealed to the archbishop of the province: — Held, by Lord Chelmsford (acting as assessor with the Archbishop of York), that the appellant was not a licensed curate within the meaning of the 36 Geo. 3. c. 83, s. 6, or 1 & 2 Vict. c. 106, s. 98, and that no appeal lay from tho decision of the bishop. Sedgwick v. The Bishop of Manchester, 38 Law J. Eep. (n.s.) Ecc. 30. 88 CHUECH AND CLERGY (E), (G). (E) Parish Ci.eek. 9. — The ofEco of parish clerk cannot be assigned. NichoUs V. Davis, 38 Law J. Eep. (n.s.) C. P. 127 ; Law Rep. i C. P. 80. A who, in' the year 1818, had been appointed for lif« to the office of parish clerk of the cathedral and parish church of M, with power to nominate a deputy, executed a deed in 1833 by which he pur- ported to assign such office to B, and after that time .he ceased to act as such parish clerk. In 1850 an act was passed for the division into dis- tricts of the parish of M, by the 6th section of which it was provided, that during the continuance in office of the chaplains or minor canons and clerks then holding office in the cathedral and parish church of M, the fees for marriages, &c. at suc-h church were to be paid to the district rector, who was to pay them to the said chaplains or minor canons, to be by them paid to the persons entitled thereto : — Held, that the deed executed by A in 1833 could not by law operate as an assignment of his office, and that therefore he still continued to be the parish clerk of the said church. Ibid. Held, also that A had a right to sue the district rector for the marriage fees due to him as parish clerk, notwithstanding flie said 6th section of the statute, and notwithstanding that th^ chaplains and minor canons, to whom the rector was by that sec- tion to pay such fees, had ceased to exist, inasmuch as such clause was only to provide a machinery for the distribution of the fees, and did not alFect the rights of A. Ibid. (F) Chuechwabdens. 10. — Down to the year 1848 the parish of P consisted of six townships, and by custom the chiirchwardens were chosen as follows : — In one township the outgoing churchwarden presented two names to the rector to choose from, in four other townships respectively the parishioners presented two names to the rector to choose from, and in the sixth two names were similarly presented to the rector ; and the six persons chosen by the rector became the parish churchwardens. In 1848, by an Order in Council approving of a scheme pre- pared by the Ecclesiastical Commissioners under 3 & 4 Vict. e. 113, the last-mentioned township was constituted a separate rectory, and from that time in the old parish the Ave remaining townships only presented names, to the rector, and there were only five churchwardens elected for the parish : — Held, that the separation of the one township did not affect the custom in the remaining five, find that the five persons thereunder were lawfully churchwardens of the parish. Bremner and others V. Hull, S5 Law J. Eep. (n.s.) C. P. 332 ; fi. & E. 800 ; Law Eep. 1 C. P. 748. In an action for money had and received, by such five persons against a defendant who, wrong- fully claiming to be churchwarden of one township, had therein collected money due under a church- rate, it appeared that one 'plaintiff had not made any declaration under the 5 & 6 Will. 4. c. 62, s. 9 but his predecessor, who had made a declaration for the previous year, wse willing to be substi- tuted: — Held, that, on such substitution being made, it was no valid objection that such prede- cessor had made no fresh declaration, inasmuch as he remained in office under his declaration till he he had a properly constituted successor. Ibid. On the argument of a special case, stated after the trial in such action, the question for the first time was raised, whether the action o\ight to have been brought by all five churchwardens, or only by the churchwarden of the township where the defendant had collected the money : — Held, without decidin:^ that question, that the Court, under the 23 & 24 Vict. c. 126, s. 19, had power to give judgment in favour of one plaintiff only, if necessary. Ibid. H. — Churchwardens have a right of access to the church at proper seasons, but they are not entitled to the custody of the keys. Ornaments placed though irregularly, in a parish church by the incumbent, can only Ue removed under the sanction of the ordinary. The powers of a churchwarden are not to be exercised by one of two churchwardens without the concurrence of the other. EitchincisY.Cordingley, LawEep. 3Adm. & Ex. 113. 12. — Churchwardens who are without funds or the means of obtaining funds for the expenses in- cidental to their office, are not personally liable to pay visitation fees to the Eegistrars of Archdea- conry Courts, as the services in respect of which the fees are payable are rendered to the parish, and not to the churchwardens. Veley v. Pertwee and another, 39 Law J. Eep. (n.s.) Q. B. 196 ; Law Eep. 5 a. B. 573. iSuit against one of several. [See No 26 infra.] Liahility for paving expenses. [See Me- TEOPOns LocAi, Management Act, 7-] Power of, over land, formerly used as burial ground. [See Bujriai,, 5.] Payment of stipend out of pew rents : lidbU- ity for acts of predecessors. [See No. 20 infra.] (G) Faculty. IS.^^A faculty for the erection of a permanent pulpit on the application of the rector, the expen- ises to be defrayed by voluntary subscriptions, was opposed by the majority of the parishioners on the ground that the present pulpit was sufficient, and that the debt for the erection of the church was not yet paid off The Court decreed the fa- culty, but instructed the registrar not to allow it to issue until it was certified that the debt for the erection of the church had been paid off. Jackson V. Singer, 37 Law J. Eep. (n.s.) Ecc. 9. 14.— The church of W, consisting of a nave, two aisles, a chancel, and a tower, was repaired under a faculty. The tower remained untouched ; so did the eastern wall, except so far as was neces- sary for the purpose of tying on new north and south walls. The whole of the nave and interior of the church was renewed. During the repairs, marriages were celebrated in the tower of the church :— Held, that the church did not require to be re-conseoi-ated. Parker v. Leach, 36 Law J. Rep. (n.s.) p. C. 26 ; Law Rep. 1 P. C. 312. OHUBCH AND CLERGY (H), (I). 89 Semble — That when a church is pulled down and rebuilt under a faculty, such church does not re- quire to be reconsecrated. Ibid. 15. — Where a faculty to appropriate a vault has been granted by a local ordinary, on appeal, it cannot be impeached save by reason that the grant was illegal or detrimental to the interests of the parishioners. Rwgg v. KingsmUl, 36 Law J. Eep. (n.s.) Ecc. 17 ; Law E»p. 1 Adm. & Ecc. 343. Aifirmed, with a variation, on appeal, 37 Law J. Eep. (n.s.) Ecc. 132 ; Law Rep. 2 P. C. 89. Where a church has been consecrated, whether such consecration be presumed from the fact that divine services have been performed therein for a long period, or has actually taken place, the con- secration will extend to everything which is under the building. Ibid. It is not illegal for a clergyman standing on un- consecrated ground to read the burial service. Ibid. 16. — The rector of a parish church applied for a faculty to make certain alterations, at his own expense, in the furniture and fittings of the church, which were not in a dilapidated state. The church- wardens, acting on behalf of the parishioners, op- posed the grant of the faculty. The applicant having failed to shew either that the existing arrangements in the fittings of the church were so inconvenient and uncomfortable as to deter the parishioners from attending divine service, or that the proposed alterations were so clearly for the increased comfort and advantage of the parishion- ers as to induce the Court to overrule their oppo- sition, the faculty was refused. Evans v. Slack and Smith, 38 Law J. Eep. (n.s.) Ecc. 38. 17. — Articles having been filed under the Church Discipline Act, 3 & 4 Vict. c. 86, against a clergy- man for making certain alterations in his church without having first obtained a legal sanction to them, he gave an affirmative issue thereto. The Court then requested the archdeacon of the district in which the church is situated to inspect such alterations, and to report to it as to their nature and propriety, which he did : — Held, that the Court will adopt the recommendation of such a report, unless it contains some grievous mis-statements of fact, or erroneous conclusion of law. SieveJciiig and Evans v. Kingsford, 36 Law J. Eep. (n.s.) Ecc. 1. The Court ordered a confirmatory faculty to issue in regard to those alterations which met with the archdeacon's approval, and admonished the clergyman to restore the church in every other respect to the state it was in before he commenced the alterations. Ibid. Conversion of consecrated ground : erection of chapel. [See Pbohibition.] (H) Fees. 18. — The rector of a parish claimed a fee of 13*., viz., 10s. for himself and 3«. for his clerk, on the celebration of every marriage in the parish church. From the year 1808 to 1854 this fee had been almost invariably paid : — Held, by the ma- jority of the Court, Kelly, C.B., Martin, B., Chan- nell, B., Bramwell, B., and Byles, J., on appeal from the Court of Queen's Bench, 36 Law J. Eep. (n.s.) Q. B. 65 ; 7 Best & S. 725, that although a Digest, 1865-70. fee received as far back as living memory went ought to be presumed to have had a legal origin unless the contrary was proved, yet that this con- trary proof was afforded by the difference in the value of money in 1189 and the present time, of which the Court would take judicial notice, as it was impossible that such a fee as 13s. could have been payable as of right in the reign of Richard the First, and that the doctrine of rankness was not confined to cases of modus: Bryant v. Foot, 37 Law J. Rep. (n.s.) Q. B. 217 ; 9 Best & S. 444 : Law Efip. 3 Q. B. 497. Semble — That a marriage fee must be a fixed and notof a varying amount, and that were it other- wise the evidence in this case would not support a claim to a reasonable or varying fee. Ibid. Held, by Bramwell, B., and Byles, J., that assuming that the fee had been immemorially paid, it could only be enforced if it were reasonable in amount, and that a fee of 13s. was not reasonable at the present day, and much less so before the time of legal memory. Ibid. Held, by Keating, J., dissenting from the judg- ment of the Court, that looking at the amount of the fee and the time during which it had been paid without objection it was a reasonable one, and that it ought to be presumed it was imme- morial, and that what is known of the value of money in the reign of Eichard the First cannot be relied upon as sufficient evidence to defeat the pre- sumption arising from long-continued usage. Ibid. 19.^-An ancient terrier contained the following stateinent as a class of rights belonging to a parish church : " Easter offerings, every communi- cant, 2d. ; every cow, 2d. ; every plough, 2d. ; every foal. Is. ; every hive of bees, \d. ; every house, 3Jrf. " : — Held, first, that the terrier was admissible, and was evidence of a custom sufficient to exclude an alleged common law right to Easter offerings at the rate of 2d. per head for every member of a family of or above the age of sixteen, as this right had never been considered to include some .of the items embraced in the statement; secondly, that the word " communicant " did not apply to the second and succeeding items in the statement, but that they were chargeable on all the parishioners, whethercommunicantis or not; thirdly, that houses built since the terrier was made were chargeable ; lastly, that there was nothing in the terrier to shew that the term "communicant" applied to persons other t'lan those who actually communed. The Queen v. HaU, 35 Law J. Eep. (n.s.) M. C. 261 ; 7 Best & S. 642 ; Law Eep. 1 Q. B. 632. Quaere — Whether Easter offerings are due as of common right. On the hearing of an appeal to the Quarter Sessions from the decision of the Justices below, it is competent to the respondent to produce evi- dence in support of his case additional to that given before the Justices Ibid. Visitation fees. [See 12, supra.] (I) DiSTEICT AND DISTEICT CHURCH. 20.— The minister of the church of a district which had been constituted under the 58 Geo. Z. N »0 CHURCH AND CLEEGY (J), (L). c. 46. and 69 Geo. 3. c. 134, brought an action against the churchwardens for stipend due in respect of two quarters ending Michaelmas Day, 1867. By the assignment of his stipend out of the pew-rents which had been made by the Com- missioners acting under the above Acts, it was provided that the stipend should be 650^. and be paid quarterly, on the four most usual quarter- days, by even and equal portions, beginning from Christmas Day, and if the pew-rents did not in any one year produce 5501. after paying the clerk's salary, the minister should receive the residue of them in lieu of 660?. The defendants had paid over to the plaintiif all the moneys that had been paid for pew-rents and had come to their hands prior to Michaelmas, but they held in their hands a sum of money which had been received at Mich- aelmas for pew-rents payable in advance for the occupation of pews for the ensuing half-year, from Michaelmas to Lady Day. This sum of money amounted to 1201., a sum less than a quarter of 550?., the full amount of the stipend : — Held, first, that the minister might maintain an action at law against the churchwardens, by virtue of the pro- visions of the acts and assignment, for pew-rents in their hands applicable to payment of his stipend ; but secondly, that the churchwardens were entitled to retain in their hands the l'20l. against the stipend accruing after Michaelmas, 1867 ; and thirdly, that the defendants were not liable in respect of pew-rents received by their predecessors in office but which had not come to their hands, and that therefore the defendants were entitled to judgment. Llot/dv. Burrup, 38 Law J. Rep. (n.s.) Ex. 25 ; Law Rep. 4 Ex. 63. 21. — An unconsecrated chapel was locally situ- ated within the district of a chapel of ease with a district ehapelry belonging thereto : — Held, that the incumbent and churchwardens of the chapel of ease, notwithstanding that the incumbent had sole and exclusive cure of souls within the district ehapelry, were not entitled to claim the sacramen- tal alms collected at such unconsecrated chapel. Lidddl V. Bainsford, 38 Law J. Rep. (n.s.) Ecc. 16. (J) Private chapel o« chancel. 22. — A prescriptive title in the lord of a manor to the exclusive use and occupation of a private chapel annexed to a parish church, may be esta- blished by evidence of user, and especially of reparation ; and the fact of the freehold being vested in the rector, and not in the person claiming by prescription, will not reduce the possessory right to a mere easement dependent on inhabitancy , Chnrton v. Frewen, 35 Law J. Rep. (n.s.) Chanc. 692 ; Law Rep. '2 Eq. 634. Uusere — Whether the right need be attached to and claimed in respect of any house. Ibid. The admission by answer of an abstract allega- tion contained in the bill, but not supported by ' evidence, will not, under some circumstances, bind the defendant. Ibid. Discussion of the law as to private chapels or chancels, and the e^'^denee which will support a |>re.scription for #uch a chapel. Ibid. Observations as to the necessary parties to, and the frame of a suit relating to a private chapel. Ibid. 23. — A private person may have a freehold interest in the soil of a lesser chancel or private chapel forming part of a parish church, without the right being annexed to a messuage or manor- house. Chapman v. Janes, 38 Law J. Rep. (n.s.) Ex. 169 ; Law Rep. 4 Ex. 273. The existence of such freehold interest, is sufficiently proved by evidence that his prede- cessors in title have from time immemorial exclu- sively repaired the chapel, used it as a burial place, and kept a lock on the door of it, and that sittings in it have always been occupied by them, their family or tenants. Ibid. (K) Chapel: appointment op minister. 24. — By a deed of feoffment, made in the thirty-third year of Elizabeth, a chapel, with hereditaments appurtenant thereto, was vested in feoffees upon trust as to the income for the minister of the chapel ; with a proviso that so often as all the feoffees save four should be dead, the four sur- vivors should, within two months, convey to fresh In 1866, there being only three surviving trustees, a document purporting to be the nomi- nation of a minister by all the three, was executed by two of them only, the third trustee being, from age and infirmity, incapable of attending to busi- ness. A suit was instituted to set aside the appoint- ment, and an interim order obtained. Before the hearing of the cause, the third trustee died, and the two survivors executed a second nomination of the same minister : — Held, that in the absence of any special provisions in the deed as to the mode of appointing the minister, no objection-could be taken on the ground of the number of trustees having been reduced below four ; that this being in the nature of a public trust, an appointment by the majority was valid ; that the incapacity of the third trustee rendered any consultation with him unnecessary; that the second nomination by the two survivors, after the death of the third, was a bonA fide attempt to cure the technical defect, if any, of the first appointment, and was not affected by the pendency of the suit. The Attorney Gene- ral y. Lawson, 36 Law J. Rep. (n.s.) Chanc. 130. (L) Church Buildings Act. 25.— By section 6 of the 5 Geo. 4. c. 103, a Church Building Act, the persons subscribing to the building of a church under that Act a sum of not less than 50'. each are empowered to elect three trustees from among themselves, called life trustees, for the management of the temporal affairs of such church and for the nomination to the bishop of a spiritual person to serve the same. By section 7, in case of death or resignation of any of such trustees, power is given to the ma- jority of such subscribers, being owners or renters of pews, present at a meeting called for that purpose by one or more of such trustees, upon CHUBCH AND CLERGY (M). 91 notice giVen at the church in the mode prescribed, to nominate and appoint any other person, being such subscriber of 50/. and an owner or a renter of a pew, a Ijfe trustee in the place of the trustee so dying or resigning ; and by section 8 it is enacted that, if the number of persons subscribing to build such church " shall not exceed three, such person or persona shall bo and be deemed to be the life trustee or trustees of such ehui?ch," and shall have and use all the powers of life trustees chosen under the provisions of the Act ; and, in case of the death or resignation of such trustee, the person nominated by him by his will or any instrument signed by him shall be a trustee in his place. In 1830, F and others, exceeding three in number, subscribed M. each towards building a church under the above Act. Three life trustees were originally elected according to the statute, but there was only one such trustee, viz., H, living in 1866, and ie and F were then the only surviving subscribers of 50/. F then, in ignorance that H was alive, and without notice to him, called a meeting to elect trustees, and elected himself to be a trustee. H died in 1867, leaving F the only surviving subscriber of 50/. In an action of quare impedit, raising the question whether F had a right to nominate a spiritual person to the incuml38ncy : • — Held, affirming the majority of the Court of Common Pleas, 38 Law J. Sep. (n.s.) C. P. 253, that section 8 does not apply to subscribers who had, in the course of events, been reduced to a number not exceeding three, but only to subscribers who, "at the beginning, were of the number of three or less ; and that therefore F did not become a life trustee by virtue of that section. Fowler and another v. the Bishop of Gloucester and others, 38 Law J. Eep. (n.s.) C. P. 341 ; Law Rep. 4 C. P. 668. Held, also that he did not become such trustee by election and according to section 7, even if he were a pew owner, and consequently he was not entitled to nominate or present to the living. Ibid. (M) Offences- (o) Desecration of churchyard. 26i — A suit having been brought against the defendant for desecrating the churchyard of his parish by causing the earth, and human remains with, it, to be removed to his own meadow, and a decree having been personally served upon him, in which he was described as an inhabitant and parishioner, and one of the churchwardens of the parish, he appeared, under protest, on the ground that the proceedings were instituted against one only of three churchwardens: — Held, that the protest must be overruled. That the words, " one of the churchwardens," were only descriptive of the individual, and that, as the offence charged, by whomsoever committed, was an ecclesiastical offence, ' the Court is bound to inquire into it. Adlam v. Colthurst, 36 Law J. Rep. (n.s.) Ecc. 14 ; Law Rep. 2 Adm. & Eec. 30. When a party is charged with making alterations in a churchyard without lawful authority, he may, in his responsive allegation, state circumstances. not in themselves contradictory of the charge made against him, but explanatory, to guide the dis- cretion of the Court in any order it would be required to make as to the removal of such alterations. Ibid, (i) Performances Of services. 27.— The 13 & 14 Car. 2. c. 4, by section 2, provides that the Morning and Evening Prayer contained in the Prayer Book shall, upon every Lord's Day, be openly read by every minister or curate, in every church, chapel or other place of public worship: — Held, that the words, "every church, chapel or other place of public worship," must be read "in every church, &c. in or for which there is a distinct minister." Sugg v. The Bishop of Winchester, 38 Law J. Rep. (n.s.) Ecc. 23 ; Law Eep. 2 P. C. 223. The appellant became the incumbent of a bene- fice created under an Order in Council, in which there were two ancient churches or chapelsj The appellant discontinued to perform divine service on the Lord's Day in one of such churches, and shut up the church although required by the bishop of the diocese to perform divine service in such church : — Held, affirming the judgment of the Court of Arches, 37 Law J. Rep. (n.s.) Ecc. 85 ; Law Rep. 2 Adm. & Ecc. 247, that although tlie 13 & 14 Car. 2. c. 4, ^. 2, did not impose a duty upon the appellant to perform divine service in every church or chapel in his parish, yet that the appellant by shutting up the church and refusing to perform divine service therein, notwithsfemding the man." date of the bishop, was guilty of an ecclesiastical offence, and was liable to be proceeded against under the Church Discipline Act. Ibid. (c) Bites, ceremonies, and ornaments. 28. — In a proceeding under the Church Disci- pline Act, the defendant, a clerk in orders, was charged with having caused or permitted two lighted candles to be held, one on each side of the priest, when reading the Gospel, such lighted candles not being then required for the purpose of giving light : — Held, an addition to the rights of ceremonies prescribed by the law, and therefore unlawful. The office of the Judge promoted hy Bishop Sumner v. Wix, 39 Law J. Eep. (n.s.) Ecc. 25 ; Law Rep. 3 Adm. & Ecc, 58. It was proved in a proceeding under the Chuich Discipline Act, that the defendant, a clerk in orders, during the celebration of the Holy Com- munion, used lighted candles which were placed on a " re-table," being a piece of furniture distinct from and standing behind the Holy Table whefl such lighted candles were not wanted for the purpose of giving light; and that he also* used incense for censing persons and things immedi- ately before and after- the celebration of' the Eucharist :— Held, that the use of the lighted candles was illegal, whether regarded as falling under the category of "ceremonies" or " orna- menta ; " and that the use of the incense was also unlawful . as being subsidiary and preparatory to the celebration of the Holy Communion. Ibiil. n2 92 CHURCH AND CLERGY (M). 29. — In a proceeding, under the Church Disci- pline Act, the respondent, a clerk in orders, was charged with having, during the Prayer of Conse- cration in the Order of the Administration of the Holy Communion, knelt or prostrated himself before the consecrated elements, and also with using lighted candles on the communion-table during the celebration of the Holy Communion, when such candles were not wanted, for the pur- pose of giving light : — Held, reversing the decree of the Arches Court, 37 Law J. Eep. (n.s.) Ecc. ] 7, first, that the priest is intended by the Rubric to continue in one posture during the Prayer of Consecration, and not to change from standing to kneeling, or vice rersk ; and that the priest is intended to stand, and not to kneel ; and that the respondent, by the change of posture during the prayer, violated the Rubric, and committed an oflFence within the meaning of the 13 & 14 Car. 2. c. 4. ss. 2, 17, 24, taken in connexion with the 1 Eliz. c. 2. Secondly, that such use of lighted candles was nulawfil; that the use of lighted candles, if a ceremony, is not amongst those re- tained in the Prayer Book, and is therefore amongst those that are abolished; and that the 3rd Injunc- tion of 1547, 1 Edw. 6, which sulfers two lights uponthehigh altar, le 'ore the facr ment, to remain, so far as it could be taken to authorise the use of lights as a ceremony, was abrogated and repealed by the 1 Eliz. c. 2. s. 27, and by the present Prayer Book and Act of Uniformity. Thirdly, that lighted candles are not ornaments within the meaning of the Rubric, not being prescribed in the first Prayer Book of Edward 'the Sixth, Martin v. Mackonoch-e, 38 Law J. Rep. (n.s.) Ecc. 1 ; Law Rep. 2 P. C. 365. 30. — The ornaments of the minister to which the present Rubric refers, are those mentioned in the first Prayer Book of Edward the Sixth, and no ecclesiastical censure can attach for their use in the prescribed manner in the performance of divine service. They are, for ministers below the order of Ijishops, and when of&ciating at the Communion Service, cope, vestment, or chasuble, surplice, alb and tunicle ; in all other services the surplice only, except that in cathedral churches and colleges the academical hood may be also worn. The cap called a "biretta," though not mentioned, may be worn by the minister as a decent protection to the head when needed. Mfhinstone v. Furchas, 39 Law J. Rep. (n.s.) Ecc. 28 ; Law Rep. 3 Adm. & Ecc. 66. Provided that the mingling be not made at the time of the celebration, so as to constitute a new rite or ceremony, it is lawful for the minister to administer wine mixed with water, instead of wine, to the communicants at the Lord's Supper. Ibid. The Rubric directs that the bread used in the administration of the Holy Communion shall be broken by the priest during the course of the Prayer of Consecration, but it does not require that the bread so used should be of any particular shape. The bread may be "wafer bread," or bread Made in the special fishion and shape of circular wafers. Ibid. It is contrary to the 82nd Canon, and hns no warranty in primitive use or custom, to leave the holy table without any decent covering during the divine service, even though there should be no ad- ministration of the Holy Communion. Ibid. It is contrary to the Rubric, viz., that which precedes the Lord's Prayer at the beginning of the Communion Service, for the minister to read the Collects next before the Epistle for the day in the Communion Service, standing in front of the holy table, with his back to the people, or, while reading the Collects following the Creed, to stand in front of the middle of the holy table at the foot of the steps leading up to the same, with his back to the people ; and though, perhaps, not governed by any positive order in a rubric, it is contrary to the intent of the Prayer Book for the minister to read the Epistle in the Communion Service with his back to the people, the Epistle not being a prayer addressed to God, but a portion of the Scripture read to the people. Ibid. The minister has no warranty in the Prayer Book for announcing the celebration of the Holy Communion as a " high celebration of the Holy Eucharist," or for giving notice of holy days other - than those which the Church has directed to be observed, and which are to be found after the preface of the Prayer Book, under the head of " A Table of all the Feasts that are to be observed in the Church of England throughout the year." Ibid. Rites and ceremonies falling within the judg- ment in Martin v. Mackonoehie and Mamank v. Simpson, No. 29, supra. Ibid. [The above case reversed, on appeal, so far as respects the vestments, the admin- istration of wine mixed with water and of wafer bread, and the po- sition of the minister during the Prayer of Consecration. 40 Law J. Rep. (n.s.) Ecc. 33 ; Law Rep. 3 P. C. 245, sub nom. Hebbert v. Pwrchax.^ (d) Doctrine. 31. — The doctrine of a visible presence of our Lord in the Holy Eucharist is at variance with all the formularies of the Church of England upon the subject, at variance with the language of the service of the Holy Communion, of the 28th Article of Religion, and of the Catechism ; but to describe the mode of presence as " objective, real, actual, and spiritual " is not contrary to the law. Sheppard v. Bennett, 39 Law J. Rep. (n.s.) Ecc. 68 ; Law Rep. 3 Adm. & Ecc. 167. It is lawful for a clergyman to speak in some sense of the " Eucharistio Sacrifice," and therefore in some sense also of the "sacrifice offered by the priest," and the " sacrificial character " of the holy table. Where accordingly, when treating of the doctrine of sacrifice, the defendant, a clerk in holy orders, used language which was consistent with The doctrine of a sacrament of commemora- tion, and did not necessarily imply a sacrifice of propitation, it was held that ho had not exceeded the liberty of expression which the law allows upon the subject. Ibid. Though the adoration of the consecrated ele- CHURCH AND CLERGY (N). 93 ments may not, the adoration of the spiritual pres' n e of Christ in the Eucharist may lawfully he maintained, and accordingly, it does not con- travene the law of the Churdi to thus speak of the Eucharist : " Whom myself adore and teach the people to adore Christ present in the sacrament, nnder the form of bread and wine, believing that under their veil is the sacred body and blood of my Lord and Saviour Jesus Christ." Ibid. (N) Ecclesiastical Cotirts : Plbadino and Peactice. (a) Statement of offence. 32.— The control of the church bells belongs to the incumbent ; but to constitute an ecclesiastical offence, it is not sufficient to allege that the ringing complained of took place without his con- sent; it must be against his wishes, expressed either in a general or particular prohibition. Daunt V. Crocker and others, 37 Law J. Eep. (n.s.) Ecc. 1 ; Law Eep. 2 Adm. & Ecc. 41. When it is intended to oppose the admission of a pleading in the Court of Arches, a notice must be filed stating the grounds of the objection. Ibid. 33. — In a suit against a clergyman for making additions to and variations from the rites and ceremonies prescribed by the Book of Common Prayer in the performance of divine offices, it is necessary to state in the articles with clearness the acts done by him, and the law he has contra- vened by such acts ; but it is not necessary to set out in detail the evidence that will be adduced in proof of them, or the intent with which they were done by him. Martin v. Mackonochie, 36 Law J. Eep. (n.s.) Ecc. 25; Law Eep. 2 Adm. & Ecc. 1 16. The Court will not allow an appeal from its decision as to the admission of articles, unless some important principle of law is involved in such decision. Ibid. ■ 34. — Articles exhibited against a clergyman for maintainino', &c., doctrine contrary to, that of the Church of England, after charging that the doctrine complained of was contrary to certain Articles of Eeligion, and certain parts of the Book of Common Prayer and of the Homilies, set out the particular Articles and portions of the Prayer Book, and proceeded as follows : — " The doctrines, positions, or teachings declared and taught in which said Articles of Eeligion, parts gf the Book of Common Prayer, and Formularies of the said Church, are also more largely expressed in the godly and wholesome doctrine necessary for these times, contained in the following passages from the 1st and 2nd Book of the Homilies, namely, &c." : — Held, that the articles might be admitted to proof in the above form, ifuble v. Voysey, 39 Law J. Eep, (n.s.) Ecc. 21 ; Law Eep. 3 P. C. 367 For the above case, on appeal, sub noln. Voysey v. Noble, see 40 Law J. Eep. (n.s.) Ecc. 11 ; Law Eep. 3 P. C. 357. 35. — The Church Discipline Act, 3 & 4 Vict. c. 86, by section 3, provides, that in, every case of any clerk in holy orders of the United Church, &c., who may be charged with any offence against the Laws Ecclesiastical, &c., it shall be lawful for the bishop of the diocese within which the offence is alleged or reputed to have been committed, &c., to issue a commission under his hand and seal to five persons, &c., provided that notice of the in- tention to issue such commission under the hand of the bishop containing an, intimation of the nature of the offence, together with the names, addition and residence of the party on whose ap- plication or motion such a commission shall be about to issue shall be sent by the bishop to the party accused fourteen days at least before such commission shall issue. Section 20 provides, that every suit or proceed- ing against any .clerk in holy orders for any ■offence against the Laws Ecclesiastical shall be commenced within two years after the commission of the offence in respect of which the suit or pro- ceedings shall be instituted, and not afterwards. A commission was issued by the Bishop of E to ' inquire as to the grounds of an offence against the Laws Ecclesiastical alleged to have been committed by the appellant. It was not stated on the face of the commission, or on the notice served on the ap- pellant, that the offence charged had been com- mitted within two years. Held, on appeal from the Court of Arches, 36 Law J. Eep. (n.s.) Ecc. 4, that, inasmuch as the statute furnishes no form of commission or notice, the absence of an allegation in the commission or notice that the offence had been committed within two years was immaterial. The Eev. TTrnmas Burne Simpson, clerk, appellant, Thomas Flamank, respon- dent, 36 Law J. Eep. (n.s.) Ecc. 28 ; Law Rep. 1 P. C. 463. Section 13 of the same Act provides, that the bishop may send the cause, by letters of request, to the Court of Appeal of the province, " to be there heard and determined, according to the law and practice of such Court," and the Judge of the said Court is authorised and empowered from time to time to make any orders of Court for the purpose of expediting suits under the Act or otherwise im- proving the practice of the Court. By an order made in pursuance of this statute, a form of citation and decree" was given in which no provision is made for a specification of the offence or for a statement of the time when or within which the offece was committed. Letters of request from the Bishop of E alleged an offence committed within two years, but the decree of citation contained no such allegation. Held, that it was immaterial that the decree did not allege the offence to have been committed within two years, provided the letters of request contained such an averment. Ibid. 36. — The sentence of suspension ab officio et a beneficio against a beneficed clergyman operates per se to incapacitate the suspended clerk from in- stituting any suit to recover the profits of the benefice as long as such sentence remains un- revoked, and that whether a sequestration be issued or not, or having issued be afterwards re- voked. Morris v ,Ogden, 38 Law J. Eep. (n.s.) C. P. 329 ; Law Eep. 4 C. P. 687. A sentence of suspension ab officio et a beneficio against a beneficed clergyman in proceeding under the Church Discipline Act by the Bishop of Man- u CHURCH AND CLERGY (N). Chester, within whose diocese the clergyman held his benefice, recited that such proceeding had been in the first instiince in accordance with the Act brought before the Bishop of Worcester, who issued his commission of inquiry ; that the Commissioners had reported there was prim4 facie ground for in- stituting further proceedings ; that the Bishop of Worcester had, in pursuance of the Act, trans- mitted a copy of such report to the Bishop of Manchester ; that articles were filed, wherein the said clergyman was charged with having offended against the laws ecclesiastical, by being guilty of having committed adultery or fornication with a person named A B, at the city of Worcester ; and that the said clergyman had neglected to appear and to answer to the said articles ; and the sen- tence then declared that the said articles had been proved, and that the said clergyman had been shewn to be guilty of having committed adultery or fornication with A B, at the city of Worcester : — Held, that the statement of the offence was not bad for uncertainty by reason of its being stated to be " adultery or fornication," as it was substan- tially one of ai) act of incontinence with the femalj mentioned in the charge, and it was immaterial for that purpose whether she was married or not. Ibid. Held, also, that the offence sufficiently appeared to have been committed within the diocese of Wor- cester, and that the sentence shewed sufficiently the jurisdiction of the Bishop of Manchester to pronounce it ; that it was not necessary to shew, on the face of it, that the seven days' notice of the execution of the commission of inquiry had been given as directed by section 4 of the Act, or that the inquiry had been in public or that the provisions of the statute as to the, preliminary proceedings, with which the Bishop of Manchester was not concerned, had been strictly observed. Ibid. Held, also, that it was not necessary that the sentence of suspension should be pronounced in the presence of the accused party, or should be served upon him. Ibid. 37. — In support of a charge of heresy, articles filed in the Arches Court set out passages from the works of the accused, in which he expressed approval of the works of certain other writers alleged to contain heretical doctrine :— Held, that the articles must set forth passages from the works of the accused in which he has maintaine_d heretical doctrine ; that it is not suffi- cient to set out passages of works of which the accused has expressed a general approval, and which contained passages he has not by his own publication accepted in their totality. Sheppard V. Bennett, 39 Law J. Rep. (n.s.) Ecc. aa ; Law Rep, 2 C, P. 460. (i) Abatement of suit, 8g. — In a proceeding under the Church Disci- pline Act at the suit of a promoter, judgment was given in the Arches Court, and the promoter ap- pealed to Her Majesty in Council. After the ap- peal was filed and before hearing, the promoter died. On motion to substitute a parishioner in the place of the original promoter : — Held, that it is the duty of the Court before which proceedings are pending, when a promoter dies, to allow a proper promoter to be substituted in the place of the original promoter. Charles James Elpfdnstone, appellant, the Eev. John Pmxhas, clerk, respondent^ re Hebbert, 39 Law J. Rep, (n.s.) Ecc. 124 ; Law Eep. 3 Adm. & Ecc. 66. 39. — The bishop of the diocese in which tho accused clerk held preferment sent the cause in the first instance, by letters of request, to the Court of Arches. The Court accepted the letters of request, and issued a decree calling upon the defendant to appear. The defendant appeared, and after the articles had been brought in and admitted, the bishop, who was the pro- moter of the cause, resigned his see : — Held, that the cause had not abated by reason of such resignation, and leave was granted to amend the title of the cause by altering the designation of the promoter. The Bishop of Winchester v. Wix, 39 Law J. Rep. (n.s.) Ecc 22 ; Ibid. 25 ; Law Rep. 2 Adm. & Ecc. '266, (c) Jurisdiction under Church Discipline Act, 40.— The Church Discipline Act, 3 & 4 Vict. c. 86, s. 13, enacts, "that it shall be lawful for the bishop of any diocese within which such clerk in orders shall hold any preferment," &c., in any case, " if he shall think fit," either in the first instance or after the Commissioners shall have reported that there was sufficient prim4 facie ground for instituting proceedings, and before the filing of the articles, but not afterwards, to send the case by letters of request to the Court of appeal of the province, " to be there heard and determined according to the law and practice of such Court." In a pioeeeding against a. clerk in orders foi publishing certain heretical doctrine, a commission issued and reported that there was sufficient prima facie ground for instituting proceedings; the casewa» then sent, by letters of request, under the above section to the Official Principal of the Arches Court, who refused to hear the case on the ground tliat no reason was assigned for proceeding in the superior Court in the first instance : — afield, re- versing the decision of the Dean of Arches, 38 Law J. Rep. (n.s.) Ecc. 42, that the Official Prin- cipal cannot refuse to deal with a case which has been sent to him by letters of request under tbe 13th section. That the words of the enactment^, "to be there heard and determined according to the law and practice of such Court," are to be con- strued to secure the duty as well as the power of so hearing and determining the cases sent, and render it imperative upon the Arches Court "to hear and determine " the matter. Thomax Byard Sheppari V. W. J. E. Betmett, 38 Law J. Rep. (i5.s.) Ecc. 49 ; Law Rep. 2 Adm. & Ecc. 335. Letters of request are no more than the process by which the cause is to be placed in a condition to be heard and determined by the superior Courti. Ibid. 41. — In a proceeding under- the Church Disci- pline Act against a clerk in orders for maintaining doctrine alleged to be heretical, the commission was to inquire as to certain works of the accused of which the titles and cert;i,in passages were given. The letters of request and the citation referred to CHUECH AND CLERGY— CHUECH EATE. 95 the same works and passages. No charge was preferred before the Commissioners, or alleged in the letters of request or citation, in respect of the 29th Article of Religion ; but the articles contained additional passages from the said works, and a charge (amongst others), of impugning the 29th Artide of Eeligion : — Held, reversing the decision of the Dean of Arches, 39 Law J. Eep. (n,s.) Ece. 1, that the Commission is. a mere prelimi- nary step for the purpose of advising the bishop whether there is a primi facie case; that the letters of request are for the purpose of -founding jurisdiction in the higher Court ; that the citation need only state generically the offence charged so that the accused may know the nature of the offence he is called upon to answer ; and that the dtation was sufEcient to enable the promoter to introduce into the articles the additional passages and charge of impugning the 29th Article of Eeli- gion. Sheppard v. Bennett, 39 Law J. Eep. (n.s.) Ece. 59 ; Law Eep. 2 P. C. 460. (d) Practice. 42. — On appeal from the Arches Court in a proceeding under the Church Discipline Act, the respondent, a clerk in orders, was monished to abstain from the elevation of the cup and paten, during the administration of the Holy Communion, and from kneeling or prostrating himself before the consecrated elements during the Prayer of Con- secration. On a motion to enforce obedience to such moni- tion, it appeared that the sentence of the Arches Court, which was affirmed by the Judicial Com- mittee, monished the respondent not to elevate the elements " above the head of the respondent," and that the respondent had literally obeyed that monition. But their Lordships intimated, that any elevation as distinguished from the mere act of removing the elements from the table, and taking thein into the hands of the minister, is not sanc- tioned by law. It further appeared, that the respondent bowed one knee at certain parts of the Prayer of Conse- cration, to an extent that it, occasionally, touched the ground: — Held, that such a bowing of the knee was a breach of the monition, and that it is not necessary that a person should touch the ground, in order to perform an act of reverence. Martin v. Macionochie, 39 Law J. Eep. (n.s.) Ece, 11 ; Law Eep.' 3 P. C. 52. 43. — The evidence of a single witness of good character, whose memory is shewn to be inaccu- rate, and whose acts subsequent to the misconduct alleged are not consistent with a resentment of it, will not be sufficient to convict a clergyman of an attempt, by words only, to solicit the chastity of such witness. Although all the Judgment in the Court below may be on all sides reversed, a bishop, as respon- dent, will not be condemned in the costs of the proceedings either in the Court of Arches or in the Court of Appeal, if in instituting them he has acted simply in accordance with his duty to the public. . Bemey y. The Bishop of- Norwich, 36 Law J. Eep. (n.8.) Ecc. 10. It seems to be doubtful whether the decision in Burder v. O'NeU, 9 Jur. N. S. 1109, was correct, and whether in fact, in such a suit as this, the defendant may not'be examined as a witness in the cause. Ibid. 44. — In criminal suits against clergymen under the 3 & 4 Vict, c, 86, the defendant is a competent witness since the 14 & 15 Vict, e, 99, s. 3. So held, overruling 5«?-(ier v. ffNeU, 9 Jur. N. S. 1109. TTie Bishop of Norwich v. Pearse, 37 Law J. Eep. (n.s.) Ecc. 90 ; Law Eep. 2 Adm. & Eic. 281. 45. — Where in a criminal proceeding under this Act the clergyman gives in a negative issue, he may prove at the hearing all facts material to his defence, without putting in a j^ea, and he may offer himself as a witness ; but on such issue he cannot prove such special circumstances as would come by surprise upon the promoter. Moss v. Edwards, 37 Law J. Eep. (n.s.) Ecc. 89. 46.— Although the 19th section of 3 & 4 Vict, c. 86 may reserve the right to institute, otherwise than by letter of request, a suit against a clergy- man, in form criminal, but to establish a civil right, yet if there be any doubt as to the offence alleged being criminal according to ecclesiastical law, the Consistory Court will not grant the cita- tion in the criminal form. IMdell v. Tiainsford, 37 Law J. Eep. (n.s.) Ece. 83. 47. — The Church Discipline Act requires that when the bishop of the diocese in which an offend- ing clergyman holds preferment, or the party com- plaining, after the report of the Commissioners ap- pointed under the Act, shall think fit to proceed against the party accused, articles shall be drawn up, and shall be approved and signed by an advo- cate practising in Doctors' Commons : — Held, that the approval and signature of any barrister prae- , tising in the Arches Court of Canterbury will satisfy the statute. Mouncey v. Bobinsom, 37 Law J. Eep. (n.s.) Ecc. 8. CHUECH EATE. (A) Validity of hate. (B) JrEisnicTiON and pbactice of Ecclesias- tical CoUET. (A) Validity of bate. 1.— At a meeting of vestry, after it had been moved and seconded that a rate be made, an amendment was proposed that it was not legal or expedient to make a church-rate for the district. The amendment, and afterwards the original ques- tion was put to the meeting; the first was negatived and the latter carried. A poll was demanded on the amendment only, and the vestry was adjourned for that purpose. On the day to which the vestry had been adjourned, the chairman declared the stat.e of the polls under the headings— the number for the amendment and against the rate,— the number against the amendment and for the rate (the latter was the larger) ; and then dissolved the meeting without having put the original motion a second time to it :— Held, that the proceedings had been irregular, but that the irregularity was not CHUECH BATE— COINING. sufficient to vitiato the rate. Tiarks and Fenning V. Button, 35 Law J. Eep. (n.s.) Ecc. 11 ; LawEep. 1 Adm. & Eec. 270. A charge for the attendance of a legal adviser at the taking a poll, or for legal assistance in laying a church-rate, or for the salary of an organist in a wealthy town parish, if such charges have been sanctioned by the vestry, may be lawfully paid out of a church-rate, and a rate made to cover them will not be excessive. Ibid. 2. — In a suit for subtraction of church-rate made to repay a sum 'of 'money advanced by the Commissioners of Public Works, under the pro- visions of the 5 Geo. 4. c. 46, for the repair and alteration of the parish church, the defendant brought in a responsive allegation, to the eflfect that the burden of repairing the chancel of the parish church rested upon the impropriate rector thereof ; that a considerable portion of the money advanced by the Commissioners was expended in the repair and alteration of the chancel, and that consequently the rate was null and void : — Held, 1, that the term "church " in the statute includes the chancel, and that therefore the expenditure on the chancel was a legal expenditure ; 2, that, as- suming the chancel not to be included in the word " church," the misappropriation of the loan in the manner alleged would not have a retroactive effect on the loan, so as to vitiate the rate. The Court accordingly declared the responsive allegation in- admissible, and ordered it to be reformed. Bippin and Wilson v. Bastin, 38 Law J. Eep. (k.s.) Ecc. 33. 3. — The principal objection to a church-rate was, that it was based upon an . assessment which had been shewn by a subsequent assessment of the parish, made under the provisions of the statute 25 & 26 Vict. c. 103, to be erroneous, and which had been in operation many years without any material correction : — Held, that the Court could not accept the variations made in the new assess- ment as proofs that the first was erroneous, espe- cially as the rules laid down by the statute had not been strictly followed in making the new assess- ment ; and that inasmuch as no disturbing cause as to the value of land had been proved to have existed in the parish during the period, the mere fact that the rate was based upon assessment of ancient date would not invalidate it. Edwards and Mann v. Hatton, 35 Law J. Eep. (n.s.) Ecc. 1 ; Law Eep. 1 Adm. & Ecc. 21 : and Barnes v. Grant, Law Eep. 1 Adm. & Ecc. 37. A parishioner, even although it may appear on the proceedings that he was under-assessed to the rate in dispute, has a right to question its legality in an Ecclesiastical Court. Ibid. (B) Jt'BISDICTION AND PRACTICE OF ECCLESIASTICAL COUET. 4. — ^A parishioner of the parish of A having been summoned before the magistrates, under 23 Geo. 3. c. 127, for the non-payment of a church- rate under Wl., informed them that he disputed the validity of the rate ; nevertheless, the magis- trates proceeded to make an order upon him for payment thereof. On a subsequent day, in his absence, the magistrates withdrew the order, and he was informed of such withdrawal by letter. The churchwardens then instituted proceedings to enforce the rate in an Ecclesiastical Court :— Held, that the matter was not res judica,ta, and that the Ecclesiastical Court had jurisdiction to enforce the rate. lAnnell and Walker v. Gunn, 36 Law J. Eep. (n.s.) Ecc. 23 ; Law Eep. 1 Adm. & Ecc. 363. 5. —The Dean of the Arches will not accept let- ters of request in a suit for subtraction of church- rates, unless it appears on the letters of request, or by affidavit accompanying the letters of request, that the rate can be enforced notwithstanding the provisions of the statute 31 & 32 Viet. c. 109. Bippin and Wilson v. Baston, Lalton and Goose, 38 Law J. Eep. (n.s.). Ecc. 22 ; Law Eep. 2 Adm. & Ecc. 886. In all future cases the Court must be moved by. counsel to accept letters of request. Ibid. CHUECHWAEDEN. [See Chuech and Cleegy (F).] CLEEGY. See Chuech and Cleegt.] CLEEK OF THE PEACE. [See Justice of the Peace.] CLUB. The social character of .a club is its most distinctive feature ; and if the requisite majority of its members, in the bon4 fide exercise of a dis- cretion given to them by the regulations, expel a member from the club, the Court will not consider whether that discretion was rightly or wrongly exercised, and will not go into the circumstances of the case further than is necessary to satisfy itself that there was not a merely capricious or arbitrary exercise of the discretion. Hopkinson v. The Marquis of Exeter, 37 Law J. Eep. (n.s.) Chanc. 173 ; Law Eep. 5 Eq. 63. COINING. Upon the trial of an indictment for the felony of having committed a misdemeanour within either of sections 9, 10, or 11 of 24 & 25 Vict. c. 99, relating to the unlawful possession and utter- ing of counterfeit coin after a previous conviction for a misdemeanour within those sections; the prisoner must first, be arraigned upon the subse- quent offence, and evidence respecting the subse- quent offence must first be submitted to the jury, and the previous conviction must not be inquired into until after the verdict on the charge of the subsequent offence. The Queen v. Martin, 39 Law J. Eep. (n.s.) M. C. 31 ; Law Eep. 1 C. C. E. 214. ^ COLLIEBY— COLONIAL LAW (A). 97' COLLIERY. VentUation. [See Mines, 13.] COLLISION. The fact that a tug was towing a vessel, ■which came in collision with another vessel, the latter being to blame, does not render salvage services given by the tug to the latter vessel, a positive duty under 25 & 26 Vict. c. 63, s. 33, but the tug will be entitled to remuneration as for voluntary service. The Queen, 37 Law J. Rep, (n.s.) Adm. 12. [And see Shipping, Admiiu.i,tt.] COLONIAL LAW. (A) Colonies goveenkd by Feench Law. (a) Lower Canada. (1) Old French law. (2) Colonial Acts and Ordinances. (b) St. Lucia : old French law. (c) Mauritius : Code Napolion, (B) Othee Colonies. (a) Barbadoes. (b) Birmuda. Se) British Guiana, d) Cape of Good Rope. («) Dominica. If) East India, (ff) Jamaica. (A) Jersey. (i) Natid. (A) A* to South Wales, (l) Noia Scotia, (m) South Australia, (n) Victoria. (C) PbACTICE in APPIiALS FEOM CoLONIES. (D) Eights of insolvent on his assignee in England undee colonial insolvency. (E) Eights and liabilities of EANxauPT oe HIS assignee in Colonies aftee a bankeuptcy in England. (F) Seevice of bill in Chanceey on peesons EESIDENT IN A COLONY. [New Zealand. Doubts as to the power of the Governor to summon persons to the Legislative Council removed, 31 & 32 Vict. c. 67. The General Assembly declared to have and to have had power to abolish any province of the colony, 31 & 32 Vict. o. 92.] [5 & 6 Viet. c. 76 ; 13 & 14 Vict. c. 52 ; 18 & 19 Vict. cc. 64, 55: Australian colonies: So much of these statutes as purport to render a law passed in any of these colonies invalid on the-ground that such law, being a law altering or affecting the duties of Custom, had not been reserved for the signification of Her Majesty's pleasure thereon, repealed. 20 & 30 Vict. c. 74.] [9 & 10 Vict. c. eeelxxxii, s. 61 ; 14 & 16 Vict. c. 86 : New Zealand Company : Declaratory con- struction as to equitable estates, charges, and liens on lands conveyed by the company. 31 & 32 Vict. c. 93.] Digest, 1866-70. (A) Colonies govbened by Feench Law. {a) Lower Canada. (1) OldFrmchlaw. 1. — The Coutumede Paris, by art. 289, provides. — " Pour riputer un testament solennel, il *est n&essaire qu'il soit Acrit et sign6 du testateur, ou qu'il soit pass6 pardevaut deux notaires, ou parde- vant le cure da la paroisse du testateur, ou son vicaire-gfe^ral, et un notaire ; 'ou du dit cure ou vicaire et trois timoins ; ou d'un notaire et deux tSmoins, iceux tdmoins idoines, suffisans, mdles et tgia de vingt ans accomplis, et non ligataires ; ct qu'il ait &t& dictA et nommA par le testateur aux dits notaires, cvai ou vicaire-gAniral, et dupois a Ixii relu en presence d'iceux notaires, cur6 ou vicaire-giniral et timoins ; et qu'il soit fait mention au dit testament qu'il a &t& ainsi dict6, nommA et relu ; et qu'il soit signA par le dit testateur, et par les t^moins ; ou que mention soit faite de la cause pour laquelle ils n'ont pu signer." A testatrix, who was unable to write, directed a notary to prepare her will. The notary drew up a will in accordance with the directions of the testatrix and delivered it to the testatrix. The' testatrix afterwards attended before two notaries (one being the notary who had drawn up her will), and she repeated in their presence all the dis- positions contained in the testament, though not in the exact terms of the testament, and the will was executed: — Held, that the words of art. 289, "dicte et nommA par le testateur aux dits notaires " do not require in express terms that the will should be written by a notary at the time of dictation, and that the provisions of art. 289 had been suflSeiently complied with. Evanturel V. Evanturel, 38 Law J. Eep. (n.s.) P. C. 41 ; Law Eep. 2 P. C. 462. 2. — ^A testator devised certain lands in Lower Canada to the respondent, with a proviso that the devisee should not in any manner incumber, affect, mortgage, sell or exchange or otherwise alienate the lands until after twenty years from the death of the testator. There was no substitution of the devise in the event of alienation : — Held, that such a proviso being by the law of Canada a " defense d'alitoer pure et simple," amounted merely to advice by the person making the prohibition", and was not legally binding on the devisee. Jian Baptiste Senaud, appellant, Joseph Guillet (dit Tourangeau), respondent, 37 Law J. Eep. (n.s.) P. C. 1 ; Law Eep. 2 P. 0. 4. 3.— In a, petitory action, to recover possession of land in Lower Canada, the defendant alleged title by adverse possession for thirty years by himself !tnd one G, through whom he elaiimed : — ■ Held, that the object being to shew that the in- coming occupier claimed under and by way of direct continuation of an occupation of an out- going occupier, and there being no real title to convey, an instrument adapted to pass real title from G to the respondent was not necessary. James Macdonald, appellant, James Lambe and Mary Nickle, respondents, 36 Law J. Eep. (n.s.) P. C. 70 ; Law Eep. 1 P. 0. 639. By the old French law, "actes sous seing priv6" )8 COLONIAL LAW (A). [not wilnesBed by a public notary) have no dates is regard third parties : — Held, that a document ' sous seing privA," coupled with parol evidence as » the date, may be sufficient to support a plea of prescription for thirty years. Ibid. 4'. — The Ordinance des Bourbons, of November, 1639, No. 327, which regulates the formalities ' of marriage, after imposing certain civil consequences in the case of marriages not publicly solemnized, Bnacts, by article 6, in respect of marriages eon- bracted between persons living together in a state of concubinage as follows : " Voulons que la mfeme peine (de la privation des successions) ait lieu centre les enfants qui sont nis des femmes que les peres out entretenues, et qu'ils ^pousent lorsqu'ils Bont a TextrimitA de la vie :" — Held, that in order to render valid a marriage contracted under such circumstances, the patient must himself feel that he is dying, or that the violence of the disease and the inefficacy of all remedies impress him with the belief that life is about to depart. Scott v. Pacquet, 36 Law J. Eep. (n.s.) P.O. 65; Law Eep. 1 P. 0. 552. The Judicial Committee vrill not, unless there be manifest error in a judgment under appeal, over- rule decisions pronoimced in a country in which the law of France prevails, which must be knovm and continually acted upon by Courts of law, and in which also the witnesses on both sides reside and may have been more or less known to and seen when imder examination by the Judges or some of them, who likewise are familiar with the usages and customs of the place in which all the circum- stances which formed the subject of the evidence occurred. Ibid. 5. — By the old French law which prevails in Lower Canada, an advocate and attorney duly admitted to practise in the Courts of that colony, who has appeared personally as suitor, and has conducted his own case as attorney on the record, is entitled, under a judgment in his favour " avec dipens," to charge in his bill of costs, and to be allowed on taxation, fees claimed by him in respect of his character as such attorney. Giigt/ v. Brown, respondent, 36 Law J. Eep. (n.s.) P. C. 38 ; Law Eep. 1 P. C. 411. (2) Colonial Acts and Ordinances. 6. — By the old French law, which prevailed in Canada, when upon a usurious contract the princi- pal and legal interest have been fully paid, any money afterwards received by the lender beyond the legal amount may be recovered back, and such right of action is assignable. By an Act of Lower Canada, passed in the year 1777 (17 Geo. 3. t. 3), it was provided that all bonds, contracts and assurances, whereupon or whereby a greater interest than 6^. per cent, should be reserved or taken, shpuld be utterly void, and that every person who should either directly or indirectly take, accept or receive a higher rate of interest should forfeit and lose treble the value. By an Act of Lower Canada, passed in the year 1853 (16 Vict. c. 80), it was provided, " That no contract to be hereafter made in any part of the province for the loan or forbearance of money at any rate of interest whatsoever, and no payment in pursuance of such contract shall make any party to such contract or payment liable to any loss, forfeiture, penalty or proceeding, civil or criminal, for usury, any law or statute to the contrary not- withstanding." And it was further provided, that every such contract and every security for the same should be void so far, and so far only, as relates to any excess of interest thereby made payable above the rate of 61. for the forbearance of 100/. for a year, and the said rate of 61. per cent, interest, or such lower rate of interest as may have been agreed upon, shall be allowed and recovered in all cases where it is the agreement of the parties that interest shall be paid. The appellant, in the year 1845, received byway of loan from the respondents a sum of money at 61. per. cent. Payments were made on account of principal and interest' up to .the year 1856, when the appellant sued the respondents to recover back some of the interest paid, on the ground that at the time the loan was contracted a sum of money was paid to the respondent as a bonus in addition to the interest : Held, first, that the Act of 1853 did not prevent the plaintiff recovering back, in the action, any usurious interest which had been paid, as such action was not a "civil proceeding for usury;" secondly, that the words "such contract or security shall be void so far, and as far only, as relates to any excess of interest," &c., could only mean that the lenders should not recover more than 61. per cent., and not that the contract itself should be affected by the stij)ulation for more than legal interest. Alexander Edouard KierzkowsM v. Jean Baptiste Theophile Dorion, 38 Law J. Eep. (n.s.) P. C. 12 ; Law Eep. 2 P. C. 291. 7. — By the Consolidated Statutes of Lower Canada, c. 77, s. 23, it is provided, " That an ap- peal shall lie to the Court of Queen's Bench as a Court of Appeal and Error from any judgment rendered by the Superior Court of Lower Canada in any district, in all cases where the matter in dispute exceeds the sum of 201. sterling." Chapter 88, s. 17, provides, " That an appeal shall lie to the Court of Queen's Bench, sitting in appeal, from all final judgments rendered by the Superior Court after the 30th day of June, 1858, in all cases provided for by that Act and chapter 89 of these Consolidated Statutes, except in cases of certiorari." Chapter 87 provides for proceedings upon writs of prohibition, certiorari, and scire facias, and sec- tion 6 states that " appeals from final judgment rendered under the Act, except in cases of certio- rari, are provided for by chapter 88." In a proceeding under the Seigniorial Acts of Lower Canada, the appellants obtained from the Superior Court a vprit of certiorari to bring the proceedings into the Superior Court, which Court afterwards quashed the vrrit: — Held, first, that the Consolidated Statutes must be treated as one great Act, and that the several enactments ought to be construed collectively, and with reference to one another ; secondly, that the writ of certiorari is governed by the provisions of chapter 88, and tliat. COLONIAL LAW (B). 99 no appeal will lie in such a case from the judgment of the Superior Court to the Court of Queen's Bench. Giie Wentworth Boston and others v. Sime- on Iielieore and others, 39 Law J. Eep. (n.s.) P. C. 17; Law Eep. 3 P.O. 157. 8. — Clause 1187 of the Civil Code of Lower Canada provides that " where two persons are mu- tually debtor and creditor of each other, both debts are extinguished by compensation which takes place between them." Clause 1188 provides that " compensation takes place by the sole operation of law between debts which are equally liquidated and demandable, and have each for object a sum of money or a certain quantity of indeterminate things of the same kind and quality." The respondent, a shareholder in a company in Lower Canada, upon whose shares calls remained unpaid, was also a creditor of the company to an amount equal to the calls for salary as manager of the company : — Held, in an action by a creditor of the company against the respondent, for a debt due from the company, that compensation had not taken place between the company in respect of calls and the respondent in respect of salary, a shareholder not being liable to pay a call till twenty days after a call was made, and no call ha^dng been made. Syland v. Delisle, 38 Law J. Bep. (k.s.) P. C. 67 ; Law Eep. 3 P. 0. 17. (J) St. Lucia : old French law. 9. — By the old French law, which prevails in St. Lucia, a family has no property in their family name, and no action will lie to restrain a stranger from assuming the patronymic of a family. Du BoiUai/ V. Su Boulay, 38 Law J. Eep. (n.s.) P. C. 35 ; Law Eep. 2 P. C. 430. The Ordinance of the aith of April, 1803 (1), prohibiting a change of name without certain for- malities, never became part of the law of St. Lucia. Ibid. (c) Mauritius: Code Napoleon. 10. — The word " prepos^," in article 1384 of" the Code Napoleon, means a person who stands in the same relation to " commettant " as " domestique " does to "maitre,"' i.e. a person whom the "com- mettant " has intrusted to perform certain things on his behalf ; but in order to make the ' ' com- mettant " responsible for the negligence of the pr4- pos6, the latter must be acting " sous les ordres, sous la direction et la surveillance du commettant." Semble — That in order to exempt an employer from liability for the acts of those with whom he contracts, the latter must exercise an independent and defined calling, in the performance of the du- ties of which the employer must not personally in- terfere. Edouard Serendat v. Jean Saisbe, 35 Law J. Eep. (n.s.) p. C. 17 ; Law Eep. 1 P. C. 162. 11, — Articles 765, 766 of the Code Civil consti- tute a special law for determining the succession to natural children dying without posterity, and ought to be construed according to the terms in which they are expressed, without reference either .to general laws or to the terms of other special laws. Article 766 provides, " En cas de prM^cis des pSre 6t mfere de I'eufant naturel, les Wens qu'il en avait re9us passent aux frjres ou sceurs legitimes, s'ils se .retrouvent en nature dans la succession : les actions en reprise, s'il en existe, ou le prix de ces biens aliAnes, s'il est encore dH, retournent Agalement aux frires et sceurs l^times. Tous les autres biens passent aux frires et scaurs naturels, ou a leurs descendants " : — Held, that Recognised illegitimate children fall within the description of " descendants." JSer Majest^s Procweur and Ad- vocate-General for the Island of Mauritius v. Vir- ginie Bruneau, 35 Law J. Eep. (n.s.) P. C. ; 56 Law Eep. 1 P. C. 169. (B) Othee Colonies. (a) Barbadoes. 12. — The appellant, a trader in Barbadoes, hav- ing quitted the colony in debt, and been adjudicated a bankrupt in his absence, came to England and contracted debts in England, and was adjudicated a bankrupt under the Bankruptcy Laws of England, and obtained his discharge. The appellant having returned to Barbadoes, proceedings were instituted by his creditors under the former bankruptcy in tlie colony, and the appellant was sentenced to a term of imprisonment : — Held, that, although an adjudication and discharge in bankruptcy in Eng- land under the Imperial statute has the effect of barring any debt which a bankrupt may have con- tracted in any part of the world, yet that the dis- charge under the Imperial statute would not deprive the Court of the colony of its jurisdiction to inquire into offences committed against the Insolvent Law of the colony, the insolvent being again within its jurisdiction, and such Court having once acquired jurisdiction in the matter. Howard GUI v. Andrew Barron and another, 37 Law J. Eep. (n.s.) P. C. 33 ; Law Eep. 2 P. C. 157. (i) Bermuda. 13. — By an Act of the colony of Bermuda a Court of Chancery was established in the islands, with authority to examine, hear, judge, determine and decree all matters, causes and things whatsoever as fully and amply as the High Court of Chancery may and can : The appellant, a clerk in orders, was presented by the Crown to the rectory of the parishes of H and S. The appellant was duly inducted into the parish church of H, but his induction into the parish of S was obstructed by the laity. The ap- pellant applied to the Court of Chancery in the colony for a writ de vi laica removenda, to remove the obstruction. The Court refused the writ : Held, aflSrming the judgment of the Court of Chancery in Bermuda, that the appellant was not entitled to such writ ex debito justitiae ; and that the writ de vi laica removenda is not a necessary incident of Chancery jurisdiction. Ex parte the Eev. Alfred Jenkins, 38 Law J. Eep. (n.s.) P. C. 6 ; Law Eep. 2 P. 0. 268. (c) British GUiana. 14.— By an Order in Council of the 20th of o2 100 COLONIAL LAW (B). Juno, 1831, and by an ordinance of Britisli Guiana of the 26th of November, 1855, a new Supremo Court of Justice was established in British Q-uiana, and it was provided, that the Judges " shall have, possess, exercise and enjoy such and the same juris- diction, powers and authority in every respect as the Judges of the said Courts have heretofore law- fully possessed, exercised or enjoyed ; and that the decision of the majority of such Judges shall in all civil cases at any time depending in the said respective Courts, be taken and adjudged to be and shall be recorded as the judgment of the whole of such Court " : — Held, that this ordinance, by the words " that the decision of the majority of such Judges shall be taken and adjudged to be and shall be recorded as the judgment of the whole of such Court," in terms constituted the Supreme Court a Court of record. Lawrence Mc.Dermott, appellant, V. the Judges of British Guiana, respondents, 38 Law J. Eep. (n.s.) P. C. 1 ; Law Eep. 2 P. C. 341. The Judicial Committee will not entertain an appeal from an order of a Court of record inflicting punishment by fine or imprisonment for contempt, if it appears upon the face of the order that the party has committed a contempt, that he has been duly summoned, and that the punishment awarded is an appropriate one. Ibid, (d) Cape of Good Hope. 15. — The Dutch Reformed Church in the colony of the Cape of Good Hope is a voluntary society subsisting by mutual agreement. The regulation of its ecclesiastical affairs depends upon contract, and the authority of its governing bodies is derived wholly from the submission and agreement of the -members, ecclesiastical and lay, which constitute the church or society. This contract is contained in certain laws and regulations in articles embodied in an ordinance of the colony passed in 1843. These articles define the jurisdiction to be exercised by the governing bodies in the church, viz., con- sigtories, presbyteries, and a synod or general assembly. Article 7 provides that cases prosecuted on appeal must be taken in regular order, and no "cases be brought before the higher Court which first ought to have been decided in the inferior ones, unless in the meanwhile no inferior Court had been held, and the nature of the case required a speedier settlement. All this, however, does not afiTect the right of the higher Courts to take notice of cases, even without appeal, which concern the welfare of the church in general, and come under its juris- diction." Article 187 provided " that the general assem- bly, or, if it does not meet that year, the synodical commission, shall have the immediate management of charges against the performance of duty, the doctrine or the conduct of ministers." This pro- vision was erased in the year 1847 by virtue of a power contained in the Ordinance of 1843 : — Held, that by this erasure the primary jurisdiction of the synod in charges against ministers relating to doctrine, discharge of duty or conduct, was trans- ferred to the presbyteries. The Sev. Andrew Mim'ay and others, appellants, thf. Bev. Thomas Franfois Biirgers, respondent, 36Lj,w J. Rep. (n.s.)" P. C. 44 ; Law Eep. 1 P. C. 362. The respondent, a minister of the Dutch Re- formed Church, in the presbytery of Graaff Keiuet, at the Cape, was in the year 1884 suspended from his benefice on a charge of error in doctrine by the synod, no charge having been first preferred either, before the consistory or the presbytery: — Held (aflSrming the judgment of the Supreme Court at the Cape), that the charge should first have been preferred before the presbytery, and that the synod had no jurisdiction in the first instance. Ibid. Semble — That the latter part of article 7 means, that if a case concerning the welfare of the Church in general has been decided in the inferior Court, and no appeal has been brought, the higher court may take notice of such case, provided an appeal might have been brought. Ibid. 16. — By the Roman-Dutch law, ordinances of the Governor and the Court of Policy at the Cape of Good Hope form part of the lex scripta of the colony. IHr& Gysbert Van Breda, appellant, Johan Conrad SUberbauer, respondent, 39 Law J. Eep. (n.s.) p. C. 8 ; Law Rep. 3 P. C. 84. A landowner in the colony petitioned the Gover-' nor and Court of Policy to be relieved from certain ordinances made in respect to the right to the flow of certain water from his land into and upon the land of certain adjoining landowners, but " offered" to permit the flow of the water, subject to certain restrictions. By an ordinance of the Governor and Court of Policy, it was resolved to release the landowner from the former ordinances, and to accept the "offer" contained in his petition : — Held that, inasmuch as the legislature could only modify an existing law by passing a new law, such ordinance, though informal, had the force of law. Ibid. 17. — Ordinance No. 6 of the Cape of Good Hope, by section 24, provides that no goods shall be laden or unladen from any ship in the colony until due entry shall have been made of such goods and warrants granted for the unlading of the same. Section 25 provides that the person entering any goods shall deliver to the collector a bill of entry thereof, containing, amongst other things, the par- ticulars of the quality and quantity of the goods,, and the packages containing the same. Section 50 provides that every peKSon who shall assist or be otherwise concerned in the unshipping, landing, or removal or harbouring goods liable to forfeiture, or into whose hands the same shall knowingly come, shall forfeit treble the value thereof. P and M carried on busi-noss in partnership at Cape Town. P consigned 26 cases of glassware and three cases, each containing a carriage, and filled up with corks, to M at Cape Town. On the arrival of the goods, M made out one entry for three eases containing carriages and 25 cases of glassware. There was no entry in respect of the corks : — Held, first, that it is the duty of the per- son who applies to enter goods, for the pur'pose of having them unladen, to state the packages the unlading of which he asks for,.aud to identify thosS COLONIAL LAW (B). 101 packages, and to stito the particulars of the quality and quantity of the goods contained in the packages, and that the whole of the contents of three cases containing the corks was forfeited. Secondly, that inasmuch as there may be several Mitries on one hill of entry, tlie cases containing glassware were not forfeited. Thirdly, that under the circumstances, M was liable to the penalties imposed by section 60. Graham v. Pocock, 39 Law J. Kep. (n^.) P. C. 38 ; Law Rep. 3 P. C. 345. (e) Dominica, 18. — ^The respondent, a member of the House of Assembly in the island of Dominica, being guilty of a contempt of the House whilst the House was sitting, was committed by warrant of the Speaker, to the common gaol of the island during the pleasure of the House. It did not appear on the face of the warrant that the contempt was com- mitted in the presence of the House : — Held, first, that the House of Assembly did not possess the power to commit or punish for contempt, but that a member of the House, if guilty of disorderly conduct in the House whilst sitting, might be re- moved, and that the law would sanction such a degree of force as was necessary to remove a per- son so offending and to keep him excluded. Secondly, that the warrant ought to have alleged that the contempt was committed in the presence of the House. Doyle and others. \. Falconer, 36 Law J.. Eep. (m.s.) P. C. 33 ; Law Eep. 1 P. C. 328. (/) East India. 19.— Act 8 of 1859, section 312 (the Code of Civil Procedure extended to Oude by order under section 385), provides that if the parties to a suit are desirous that the matters in difference between them in the suit, or any of such matters, shall be referred to the decision of one or more arbitrators, they may apply to the Court at any time before final judgment for an order of reference. Section 314 provides that the arbitrator or arbi- trators shall be nominated by the parties in such manner as may be agreed upon between them. If the parties cannot agree with respect to the nomi- nation of the arbitrator or arbitrators, or if the person or persons nominated by them shall refuse to accept the arbitration, and the parties are desi- rous that the nomination shall be made by the Court, the Court shall appoint the arbitrator or arbitrators. In the year 1861 the appellant and the respon- dent, being partners in a bank in Oude, agreed to refer certain matters in dispute between them to five arbitrators, but the appellant drew back from this agreement, and the respondent instituted a suit against the appellant in the Civil Court of Lncknow. The suit involved matters of account, and judgment having been given in favour of the appellant, the respondent appealed to the Judicial Commissioner of Oude^ who in part affirmed the judgment of the Civil Judge, but remitted the suit to the Civil- Judge, and directed certain matters to bo referred to arbitration. The Civil Judge ap- pointed four of theTive arbitrators originally nomi- nated by the parties, but the appellant protested against this appointment. The arbitrator ■ made an award. Held, on appeal to set aside tlie award, that the Civil Court of Lucknow had no power under Act 8, 1869, to appoint arbitrators, unless with the consent of the parties. Sheonath, alias Burrap Kalca, V. Bamaath, alias Chotav Kaka, 35 Law J. Eep. (n.s.) p. C. 1. 20. — ^The rights of tenants in common in India who from the year 1827, when one of them had made a settlement of her share, had been treated as entitled in the respective shares of five-ninths -and four-ninths, were in the year 1864 ascertained to have been entitled all along in the proportions of four-fifths and one-fifth : — Held, that according to the English law a grant would have been pro-, sumed after so long a possession and user. And also that the settlement of 1827 would have acted as a legal ouster ; but that independent of these questions the Indian Act of Limitations precluded the rights as enjoyed being now disturbed. In re Feat's Trusts, Law Eep. 7 £q. 302. {g) Jamaica. 21. — ^The right of action in this country for an injury done in a colony may, before the commence- ment of proceedings, be taken away by an Act of Indemnity passed by the colonial legislature. Phillips V. Eyre, 38 Law J. Eep. (n.s.) Q. B. 113 ; 9 Best & S. 343 ; Law Eep. 4 Q-. B. 225 : [affirmed on Error to Ex. Cham.] 40 Law J. Eep. (n.s.) Q. B. 28 ; 10 Best & S. 1004 ; Law Eep. 6 Q. B. 1. In an action brought here against the governor of a colony for an injury done there, it was pleaded that by an Act of Indemnity passed by the legisla- ture of the colony and assented to by the Crown, after reciting that a rebellion had broken out in the colony, and that the defendant, with the advice of a council of war, had proclaimed martial law, &e., and that it was expedient that all persons who in good faith and of loyal resolve had acted in crushing the rebellion should be indemnified and kept harmless for their acts of loyalty, it was enacted, that all personal actions and suits, indict- ments, informations, attachments, prosecutions and proceedings, present or future, against such authorities or officers, &c., for or by reason of any matter or thing commanded, ordered, or directed or done since tho proclamation of martial law should be discharged and made void ; and every person by whom such act should have been advised, commanded, "ordered, or directed or done during the existence of martial law should be indemnified both against the Crown and all persons whomso- ever. The Act went on to specially indemnify the governor and his officers from the consequences of acts done in order to put an end to the rebellion in districts in which martial law was proclaimed, and declared that such acts were thereby madfl lawful and confirmed. The plea concluded by stating that, by the laws and constitution of tlie island; the governor, legislative council, and as- sembly, had power and authority to pass the Act, subject to the assent of Her Majesty to it ; that the Act duly received the. assent of Her Majesty, and ■ became part of the law of the island of 102 COLONIAL LAW (B). Jamaica; and that the defendant was governor, and the alleged grievances were measures used in the suppression of the rebellion : — Held, fiat the plea ifforded a good defence to the action. That the Jamaica legislature appeared to have full legisla- bive power to pass an Act taking away the right oi action before the local tribunals of the island, md an act lawful by the law of a foreign country could not be made the ground of an action in an English Court. That the same principle applied where an act admitted to have been unlawful when done was legalised and divested of its tortious character by ex post facto legislation. Ibid. Held, also, that the validity of the Act was not affected by the fact that the governor who joined in passing it was thereby enabled to indem- nify himself from the consequences of illegal acts committed by him. Ibid. 22. — The Jamaica Insolvent Act, 1 1 Vict. c. 28, provides, that if any person in contemplation of insolvency shall transfer any of his estate to any creditor for the benefit of such creditor, such transfer shall be deemed fraudulent and void as against the official assignee of such person : pro- vided always, that no such transfer shall be so deemed fraudulent and void, unless made within six months before a declaration of insolvency : — Held, that transfers of property made by a party in insolvent circumstances, if they occur within six months before a declaration of insolvency, are absolutely void, although there be no evidence of 3.ny fraudulent preference. Nunes v. Carter, 36 Law J. Eep. (n.s.) P. C. 12 ; Law Kep. 1 P. C. 342. 23. — ^A testator bequeathed all his real and per- sonal estate in Jamaica, after payment of debts md legacies, to the respondents, his grandchildren, to be apportioned when they should attain the age of twenty-one years, and appointed D E executor of his will and guardian in respect of the real estate. The testator died in 1832, and D E en- tered into possession of the real and personal estate. D E died in 1850, and appointed the appellant his executor. , The respondents attained the age of twenty-one years in 1865, and in that year the appellant filed a petition praying that an account might be taken of the real and personal estate of the testator : — Held, that the appellant was entitled, notwithstanding the delay, as a matter of right to have an account taken of the personal estate of the testator, and inasmuch as D E had been appointed guardian in respect of the real estate, and had entered into possession of the same, accounts should also be taken of the rents and profits of the real estate of the testator. SmUhv. a Grady, 39 Law J. Eep. (n.s.) P. C. 63 ; Law Eep. 3 P. C. 311. (Ji) Jerstiy. 24. — The prerogative of the Crown, with refer- ence to the acceptance of the resignation of jurats of the Eoyal Court, considered. In the matter qf the Jersey Jurats, Law Eep. 1 P. C. 94. 25.- The respondent, an expectant heir, by deed dated March 24, 1835, in consideration of the payment of his debts and of an annuity for his life conveyed all his share of the heritages and niuv- ables, situate in Jersey, which should accrue to him on the death of his father and mother, to his four brothers (the appellants). The appellants by another deed, dated July 11, 1835, to which the respondent was not a party, agreed that the share which should so accrue to the respondent should, at the time of succession, after deducting the amount of his said debts and of the annuity be paid to the respondent if unmarried, but if mar- ried then that the said share should be applied fop the benefit of his wife and children : — Held (re- versing the judgment of the full Court), that these deeds could not be held to be " mandates" from the respondent to his brothers to manage the pro- perty of the respondent ; tha,t the deed of March 24 was an absolute purchase of the respondent's succession by the appellants ; and that the deed of July 17 was a voluntary settlement by tie appellants for the respondent's benefit. Hagh Godfrey and, John Godfray, appellants, William Francis Godfray, respondent, 35 'Law J. Eep, (n.s.) p. C. 39. By the laws of Jersey a sale by an expectant heir of his expectancy cannot, in the absence of fraud or undervalue, be impeached after the lapse of a year and a day from the time of the opening of the succession, all such contracts are merely voidable, and require a judicial sentence to super- sede them. Parties wronged by unconscionable bargains are allowed a period of thirty years reckoned from the date of a sale to set them aside ; but the ratio of inadequacy is strictly defined, and in order to justify the interference of the Court to set aside a sale, proof must be given by a plaintiff that less than half the value has been given for the pro- perty purchased. Ibid. The oath taken by the parties to a contract be- fore a Justice, must be considered to contain a tacit reservation of just grounds of complaint. Ibid. 26.— By the 8th article of the Acte of the States of Jersey it is provided as follows: " Pour que les legs dimmeubles contenus dans un testament soient valables, il faut que le testateur, en pre- sence de deux t^moins, ait apposS sa signature a la fin, ou ait reconnu sa signature ainsi appos^, et que les deux t^moins preens en mgme temps aient alors appos^ leurs signatures an testament en pr&ence du testateur." " Si le testament n'est pas olographe, la lecture en sera faite en prfcence du testateur et des deux t^moins : " — Held, that there is no necessity that the observance of these formalities should appear on the face of the will ; their performance may be proved by extrinsic evi- dence. Mauger v. Le Gallais, 36 Law J. Eep. (n.s.) p. C. 58 ; Law Eep. 1 P. C. 470. " Pour qu'nn testament olographe soit valable I'attestation des temoins devra etre datie." A will of real estate in the island of Jersey was dated, and at the foot or end of the will was the following attestation clause : " Le present testa- ment olographe a 4te sign6 par le testateur en notre presence, et nous y avons appose notre signature comme tAmoins en pr&ence du dit testa- teur, et en prteence I'un de I'autre, le dit jour:" — Held, that as the will was dated, and the attesta- COLONIAL LAVf (B). 103 tion clause was on the same paper as the wiU, the attestation was effectually dated by reference to the will, provided the will contained only one single date. Ibid. 27. — By the law and custom of Jersey a testa- tor who dies leaving lawful issue can only dispose of a part of his personal estate, but the executors of such testator are entitled to possession of the entirety of the personal estate until they have ful- filled the duties of the administration. La Cloche V. La Cloche, 39 Law J. Eep. (n.s.) P. C. 28 ; Law Eep. 3 P. 0. 125. 28. — By the law of bankruptcy in Jersey, cre- ditors or parties interested stand in a certain order, in a schedule which is made out, and the law entitles them successively, beginning from the most recent claimant at the bottom of the list, to take the whole of the estate of the bankrupt, with all its liabilities, becoming, in fact, the assignee. The respondent, a procureur in Jersey, being em- ployed as sworn procureur for the appellant, who had a .claim on tie estate of one Gr, a bankrupt, entered into an agreement with one S that S should become assignee of G's estate, and that any profit which might arise therefrom should be divided equally between the respondent and S : — Held, that, inasmuch as persons standing in the relation of trustees or agents must account to their principals for all the benefit which they may obtain by virtue of such relation, any benefit which might accrue to the respondent by reason of the agreement with S accrued for the benefit of the appellant. Elizaheth Weymouth Williams v. John Gregory Stevens, 36 Law J. Eep. (n.s.) P. C. 21 ; Law Eep. 1 P. 0. 362. (0 Natal. 29. — In the year 1850, a piece of land in the colony of Natal was grantedr by the Crown " in freehold to the appellant, the Bishop of Capetown and his successors in the said see, in trust for the English Church at Pietermaritzburg " in the colony of Natal, and a church was erected on the land. At the time of the grant Natal was part of the diocese of Capetown, but was subsequently created a separate see, of which the respondent was appointed bishop, and the church so erected became the cathedral church of the diocese of Natal. In the year 1 863, the appellant took pos- session of the said church and excluded the res- pondent from the use of the same : — Held, in an action of ejectment by the respondent to recover possession of the said land, first, that the appellant had no estate or title in the land so granted either as a trustee or otherwise ; secondly, that the res- pondent had a right as against the appellant to use and have access to the said church ; thirdly, that, in an action of ejectment, the Supreme Court had no power to deal with the actual estate in the land. The Bishop of Capetown v. The Bishop of Natal, 38 Law J. Eep. (n.s.) P. C. 68 ; Law Eep. 3 P, C. 1. {k) New South Wales. SO. — An information by the Attorney General of New South Wales charged " That on the 26th of February, 1868, at Sydney, in the said colony, while the Legislative Assembly of the said colony was sitting, a member of the said Assembly, whose conduct had been, and was then, under its consideration, after having been heard in his place in the said Assembly in reference to such conduct, was, in accordance with the practice of the said Assembly, requested by the Speaker thereof to withdraw therefrom, and that the said member, in obedience to the said request, there- upon withdrew from the said Assembly, and that immediately on his so withdrawing, the respondent being a member of the said Assembly, in and upon the said member did make an assault, and him (the member) did then beat, wound, and jU- treat, in contempt of the said Assembly, in viola- tionof its dignity, and to the great obstruction of its business:" — Held, on demurrer, that the in- formation charged in proper terms a common assault. That the words, " in contempt of, eta.," did not constitute a separate charge, or derogate from the charge of assault. The Queen v. Mian Macpherson, 39 Law J. Eep. (n.s.) P. C. 59. 31. — ^By an indenture of mortgage made be- tween the respondent B and the appellants' testa- tor, certain flocks of sheep and certain herds branded B, then depasturing on a certain station in the colony of Victoria, " together with all and singular the issue, increase and produce of the said sheep and cattle respectively," were assigned by B to the appellants' testator by way of mort- gage. By a subsequent indenture of mortgage reciting tie former indenture, B assigned "all the issue, increase and progeny of the sheep " on the said Station to the respondents P and D, with a power of sale. Previous and subsequent to the latter indenture, B purchased and brought upon the sta- tion large additions to the flock of sheep, and branded them with the letter B. B also obtained a lease of the station, and deposited" it with P and D as additional security: — Held, on a bill filed by the appellants, after a sale, by P and D, both of the sheep and the lease, praying for payment of advances out of the proceeds of the sale of all the sheep and the lease, first, that by the words " in- crease of the sheep " in the first indenture was meant the natural increase or offspring of the original sheep mortgaged, and that such words did not include additions made to the flock by purchase ; secondly, that the mortgages under the first indenture of mortgage were precluded from claiming the proceeds of the sale of the lease or any personal equity to have the sheep purchased substituted for the original sheep, no such claim having been raised by the original bill. Webster V. Power, 37 Law J. Eep. (n.s.) P. C. 9 ; Law Eep. 2 P. C. 69. (I) Norn Scotia. 82. — The appellant being a barrister and attor- ney of the Supreme Court of Nova Scotia, and also a suitor in that Court, wrote a letter, as such suitor, to the Chief Justice reflecting on the ad- ministration of justice in the said Court, and amounting to a contempt of Court, whereupon the said Court suspended the appellant from practis- ing in the said Court: — Held, that, although Courts of Justice have power to remove their 104' COLONIAL LAW (C) (F). ofEcers if guilty of crime or moral delinquency, rendering them unfit to be intrusted with a pro- fessional status, yot, inasmuch as the offence was committed by the appellant in his capacity as suitor, and not as an officer of the Court, punish- ment by tine or imprisonment was the appropriate punishment, and their Lordships were of opinion that the order suspending the appellant from practising in the Supreme Court ought fo be re- versed. Wallace V. TTie Judges of the Supreme Court of Nova Scotia, 36 Law J. Eep. (n.s.) P. C, 9 ; Law Eep. 1 P. 0. 283. (to) South Australia. 33.— By statute 18 & 19 Vict. c. 56, the legis- lature of the province of South Australia is em- powered to make laws for regulating the disposal of the waste lands of that province. By an Act of the province. No. 5, sect. 1 3, the governor of the province may demise waste lands for certain pur- poses, not exceeding eighty acres, for any time not exceeding fourteen years. The governor demised certain waste lands, alleg- ed to be of a greater extent than eighty acres, to the respondents for a term of fourteen years. The leases were under the seal of the colony, but were never enrolled or recorded in the Supreme Court of the colony or elsewhere : — Held, (aifirm- ing the judgment of the Supreme Court), that the leases, not being enrolled in any Court of record, were not records, and could not be revoked by writ of scire facias. ' The Queen v. Hughes ^ Stirling, 35 Law J. Eep. (n.s.) P. C. 23 ; Law Eep. 1 P. C. 81. 34. — An insolvency in South Australia will .vest in the assignees pure personalty situate in England to which the insolvent is entitled, if at the time of the insolvency he was domiciled in Australia : secus, if he was domiciled in England. In reBlithman, 35 Law J. Eep. (n.s.) Chanc. 256 ; 35 Beav. 219 ; Law Eep. 2 Eq. 23. • A colonial insolvency suffered by one not domi- ciled in the colony is in the nature of a foreign judgment; and the assignees must sue the insol- vent, or his representatives, in England upon the insolvency, to get at his assets in England. Ibid. (n) Victoria. 35.— The Colonial Acts (Victoria) 24 Vict. No. 117, and 25 Vict. No. 145, considered with reference to whether, after the expiration of a licence for pas- toral purposes for one year, a yearly tenancy was constituted by the continuance in possession and payment of rent. It was held that a tenancy at sufferance only continued with respect to a portion of the run which had been by due proclamation of ■the Colonial Government severed from it for a gold-fields common, and the run having been treated under 25 Viet. No. 145, as diminished by -that common ; the Court being satisfied that the rent was paid and received in respect of that ditoini.shed run, and that the Crown was entitled to recover in ejectment without notice. The Queen v. DaUimore, Law Eep. 1 P. C. 13. 36. — An Act of the colony of Victoria, 5 Vict. No. 17, provides: "That any creditor who shall have or hold any security or lien upon any part of '»an insolvent estate, shall when he is the petitioning creditor be obliged, upon oath in the aiEdavit accompanying the petition, and when he is not the petitioning creditor in the affidavit produced by him at the time of proving his debt, to put a value upon such seciurity so far as his debt may be therety covered, and to deduct such value from the debt proved by him, and to give his vote in all matters respecting the insolvent estate as creditor only for the balance, and in case any creditor shall hold any security or lien for his debt, &c., upon any part of the said estate, the amount or value of such security or lien shall be deducted from his debt, and he shall only be ranked for and receive payment for a dividend from the balance after such deduction." On the bankruptcy of E & Co., merchants, at Victoria, the respondents, creditors of the firm, claimed to prove for their whole . debt against the estate of E & Co. without deducting the value of certain securities which they held on the separate estate of E: — Held, (affirming the judgment of the .Supreme Court), that the Colonial Act did not alter the rule long established in this country, that the joint estate of the firm was the fund primarily liable, and that the separate estate of E could only be brought in in case of a surplus re- maining after separate creditors had been satisfied out of it ; and consequently, that the respondents ought to be admitted to prove for the full amount of their claim without deducting the value of the securities on the separate estate of E. The Bank of Australasia v. Flower, 35 Law J. Eep. (n.s.)P.C. 13. 37.— The Juries Statute Act, 1863, of Victoria, by sect. 37, provides that every person arraigned for any treason, felony, or misdemeanour shall be admitted to challenge peremptorily to the number of twenty jurors. Sect. 38 provides that on the prayer of any alien informed against for felony the sheriff shall, by command of the Court, return for one-half of the jury a competent number of aliens, if so many shall be found in the town, etc., and that no such alien shall be liable to be chal- lenged for want of qualification, " but that every such alien may be challenged for any other cause in like manner as if he were qualified." An in- formation was exhibited in Melbourne against the appellant an alien for felony. The appellant prayed to be tried by a mixed jury, and challenged peremptorily an alien, one of such jury:— Held, that in the absence of positive provision to the contrary, an alien juror was subject to peremptory challenge, and that the appellant had a right to such challenge. LetringerY. The Queen, 39 Law J. Eep. (N.s.) P. C. 49 ; Law Eep. 3 P. C. 282. (C) Practice in appeals feom Colonies. [See Peivt Council.] (D) Eight of insolvent undee colonial in- solvency TO SL'E IN England. ' [See JtiEisDicTioN in Equity, 6.] (E) Eights and liabilities in the Colonies of A EANKEUPT OE HIS ASSIGNEE AFTEB BANS- euptoy in England. [See supra (B) 34.] (F) Seevice op bill in Chanoeet on peeson EE31DENT IN COLONY. [See Peactice in Equity (M M) 2.] COMMISSIONERS OF WOODS AND FORESTS— COMPANY. 105 COMMISSIONERS OF WOODS AND FORESTS. LiabUity for poor-rates. [See Rate, 23.] COMMON EMPLOYMENT. [See Masteh and Sebvant, 10, 12.] COMMON. (A) Pleading at Law. (B) Suit in EtjmTT. (A) Pleading at Law. 1. — To a declaration in trespass, the defendant pleaded thirty years' enjoyment of & right of common of pasture over the locus in quo for cattle levant and eouchaht upon a certain toftstead be- longing to him as appurtenant thereto: — Held, affirming the Court of Exchequer, 3 Hurl. & C. 499 ; 34 Law J. Rep. (n.s.) Ex. 66, that it was not necessary for the support of the plea that the cattle should be actually fed upon the produce of the toftstead, they being housed thereon, and the condition of the toftstead not. being so completely changed from its original arable state that it might not again be used for the production of food for cattle ; and that there is no difference in this respect between a plea founded on the Pre- scription Act and a plea founded on prescription, properly so called. Carr v. Lambert, 36 Law J. Rep. (n.s.) Ex. 121 ; 4 Hurl. & 0. 257 ; Law Rep. 1 Ex. 168. (B) SmT IN Equity. 2. — ^Where there were only two tenants of a manor: — Held, that a bill by one of them against the lord, seeking a declaration of commonable rights, could not be maintained as a bill of peace. Phillips V. Hudson, 36 Law J. Rep. (n.s.) Chanc. 301 ; Xaw Rep. 2 Chanc. 243. Where the Court of Appeal is satisfied that there is no foundation for the plaintiffs bill, it will give the costs of the appeal against him, although he may have obtained a decree in the Court below. Ibid. 3. — One freehold tenant may sue the lord of the manor on behalf of himself and all other tenants of the manor in respect of common rights. Warvnck v. Queen's College, Oxford, 39 Law J. Rep. (n.s.) Chanc. 636 ; Law Rep. 10 Eq. 106. Where there is evidence that all the freehold tenants of a manor have, according to imme- morial and uninterrupted usage, enjoyed rights of common over the wastes, such rights will be considered as customary rather tha,n prescriptive, or at any rate it will be presumed that the grant of each tenement was accompanied by a grant of similar rights, and the fact that some such tenants have acquiesced in attempts of the lord to stop the usage is no proof of interruption, where the plaintiff and other tenants can be shewn to have persisted in the usage. Ibid. Digest, 1865-70. 4. — Where the lord incloses waste as an ap- provement under the Statute pf Merton, the burden of showing that a sufficiency of common is left lies with him. ' A survey of a manor made by the Crown may be produced as evidence, if it has been found in the custody of the lord, and kept with the Court rolls. A plaintiff who is a copyholder and also a free- ■ holder of a manor is entitled to sue on behalf of all the freehold and copyhold tenants of the manor. Smith v. Earl Brownlow, 39 Law J. Rep. (n.s.) Chanc. 636, n. ; Law Rep. 9 Eq. 241. (C) COMPANY. 1.— RAILWAY AND OTHER COMPANIES INCORPORATED BY ACT OF PARLIA- MENT OR OTHERWISE THAN BY REGISTRATION. IL — COMPANIES INCORPORATED BY REGISTRATION. (A) Pkomotees' eights and liabilities under conteact. (B) Mbmoeandum and Cbetificatb of Reqis- TEATION. Management. (a) Officers. (A) Directors. (1) Powers, duties, and privileges of. (2) Liability of, on contracts for their own benefit; or on breach of trust or of duty. (3) Proceedings against : summary jurisdiction. (4) Remuneration. (5) Notice to. (c) Borrowing powers. - (d) Acts ultra vires. (e) Contraats not under seal. If) Notices, (jj) Change of name. (A) Alteration in number or amount of (j) Distribution of capital, {k) Transfer of business. (?) Amalgamation. ' ■(D) Shaeeholders : eepeesentative suits by, ■(E) CONTEIBUTOEIES, (a) Allottees. (1) Persons who have signed the memo- randum or articles of association, (2) Persons who have applied for shares. ( i ) Application withdrawn. ( ii ) Where no notice of allotment. (iii) Alteration, in amount of sharet. (iv) Scrip holder. ( V ) Infants. (vi) Unauthorised issue. (vii) Deposits. (b) Fully paid-up shares, (c) Fast members. (d) Contributories entitled to set-off, (e) Calls. P 106 COMPANY (A). (/) Transfer of ihares. (1) Capacity to make or accept. ( i ) Married woman. (ii) Infants. (2) CoUv^ive transfers. (3) Registration of transfers. ( i ) Sale or registration after wind- ing-up, or calls being dne. ( ii ) Sela^ or neglect to register. (iii) Invalidity or mistake in trans- fer or registration. (iv) Svhdivided of shares. (v) Forged transfers and regis- trations affected by fraud. (4) Sales on the Stock Exchange. [See Exchange.] {g) Persons who have forfeited or sur- rendered their shares, (1) Where the forfeiture or surrender was made on the request of the cence: ultra vires. (2) Where it was made or threatened to be made by the directors in exercise of their powers, without the consent of t& holder. (A) Persons who have been induced to take shares by fraud or misrepre- sentation. (1) Where there was misrepresentation in the prospectus. (2) Where there was variance between prospectus and articles of associ- ation. (3) In other cases. ( « ) Persons who have held shares as trustees or executors. (j) Persons who have held shares on con- dition. {k) Share held by other company. {I) Scrip certificate. (m) Interest on calls. (n) Bankruptcy of shareholder. (o) Jurisdiction of Court to rectify register. (F) Winding-up. (a) On resolution, (A) On petition, (1) Eight to petition. (2) Locus standi of opponent. (3) Order when made. (4) Priority of petitions. (5) Registration of petition of lis pen- dens. (6) Costs. (7) Rehearing fee. (c) Jurisdiction. (1) To wind up particular companies. (2) Discretion of Court. (3) Proceedings against company, (4) Generally. (d) Practice. (1) Production of documents. (2) Examination of witnesses. (3) In other cases, {c) Liquidators. (1) Appointment and removal. (2) Compromise by. (3) Eemwnerationof. (4) Powers, rights, and functions. (f) Appeal, (a) Costs. (A) l)ffect of winding-up. (1) Sc. fa. against shareholder. (2) Proceedings against company or contributories. (3) As proof of insolvency. (G) Debts pbovable in windinq-up. (a) Secured creditors. (b) Interest. (c) Prospective claims and continuing da- mage. (d) Amalgamation. (e) Set-off. (/) Debenture holders. , (g) Guarantee. {h) Insurance companies. If) Shares in other companies. (k) Arrears of salary. {I) Deposit on application for shares. [New provision for the reduction of capital of limited companies, and for winding up the same, 30 & 31 Vict. c. 131.] [New provisions as to the interest on and the issue of debenture stock, 2 & 3 Vict. u. 48.J [Power to the Court of Chancery to order a meeting of creditors of a company to decide as to any proposed compromise. 33 & 34 Vict, c. 104.] I.— RAILWAY Am) OTHER COMPANIES 72f- CORPORATED BY ACT OF PARLIA- MENT, OR OTHERWISE THAN BY REGISTRATION. [See Eailwat Company, Paetkership, Club, Feiendlt Society.] II.— COMPANIES INCORPORATED BY RE- GISTRATION. (A) Peomotees' eights and liabilitiks undkb CONTEAOTS. 1, — A stipulation in the articles of association of a company that a pertain sum shall be paid to the promoters is valid, and will be binding on per- sons taking shares, if all the facts are folly dis- closed, but not if there is a sub-agreement con- cealed, by which the directors are to receive back part of the money for their own benefit. In re the Madrid Bank, Limited, ex parte Williams, 35 Law J. Eep. (n.s.) Chanc. 474 ; Law Rep. 2 Eq. 216. The articles of association of the M Bank autho- rised the directors to make an allotment and com- mence business when they should think fit; they also provided that when the allotment of the first issue should take place, the promoters should re- ceive 10,000^. Ibid. When 5,419 shares had been subscribed for the directors made an allotment, and out of 5,4192. which had been paid in on the shares applied for, they paid 5,000i. to the promoters, out of -frhich they received back 2,0001. for themselves, by virtue of an agreement made with the promoters before the company was est-iblished, but which was not COMPANY (A), (C). 107 disclosed by the articles. The company being in course of being wound up, and the pi-omoters having put in a claim for the rest of their 10,000?. : — Held, that under the circumstances the allotment could not be considered as made bond fide, and that the promoters were not entitled. Ibid. 2, — The usual clause in a private Act of Par- liament, directing the charges incident to procuring the Act to be paid by the company incorporated by the Act, does not render the company liable to pay for work done under an agreement made for good consideration between the plaintiff and the promoters, by which it was agreed that ho should pay aU the costs, &c,'aud that the company should not be liable to pay him any of the expenses inci- dent to obtaining the Act. Savin v. The Hoylake Eailway Company, 35 Law J. Eep. (n.s.) Ex. 62 ; 4 Hurl. & C. 67 ; Law Eep. 1 Ex. 9. 3.— At a meeting of the promoters of a pro- posed company, a resolution was passed that a pro- spectus, marked with the initials of .the chairman, should be printed, and such prospectus was handed to W, who said he would be liable, but who, on taking it to the plaintiffs to print, told them he was authorised by the chairman, and said nothing about the understanding that he, W, was to be liable: — Held, in an action by the plaintiffs against the chairman for the expense of printing, that there was evidence for the jury of the chair- mixn being liable. Riley and another v. FaJdngton, 36 Law J. Rep. (n.s.) C. P.204 ; Law Eep. 2 C. P. 551. 4. — A contract by provisional directors that P M, one of their number, should be managing direc- tor, and should be entitled to a commission on the shares paid upon is not protected by 7 & 8 Vict. e. 110, s. 23, enabling the promoters to contract for services, &c„, " necessarily required for the es- tablishing of the company." In re the State Fire Insurance Company, ex parte Morriaon'e Assignees, 36 Law J. Eep. (n.s.) Chanc. 634. 5. — The articles of association of a 1 imited com- pany provided for the payment of a sura of money to A as the promoter. A bill was filed by the company to restrain an action commenced iif the name of A to recover the money, on the ground that, as was the fact, not A, but B, was the pro- motor, and the J)erson who would really receive the money if paid. Proceedings in the action and suit, and in a subsequent winding-up petition presented by B as a creditor for the money, wore stayed on the terms of certain payments being made to B. The company being subse- quently in process of being wound up, the offi- cial liquidator obtained from the Master of the EoUs an order for repayment of money paid to B under these compromises, on the ground of the original concealment of the name of the real promoter. But the order was reversed, on ap- peal, by the Lords Justices, on the ground that, although the original arrangement was open to suspicion, its real nature was known to the di- rectors, and therefore presumably to the body of shareholders, when the compromises were made, and that it was too late afterwards to seek to disturb them. In re the General Exchange Bank, ex parte Preston, 37 Law J. Eep. (n.s.) Chanc. 618. [See also (C) 7, 20, 32, infra.] Personal liability of promoters on contract for sale of goods. [See Principal and Agent, 11.] By promoters oj railway compa/nies. [See Railway Company.] (B) Memorandum and Certificate of Eeqis- THATION. The certificate of registration is conclusive ■ evidence that the requirements of the Act relative to registration have been complied with, and the incorporation of a company cannot after the grant- ing of such a certificixte be impugned, even on the ground of misconduct of the registrar in reference to the registration. Therefore, where a memoran- dum of association was materially altered in the registrar's office, without communication with or re-execution by the persons who had signed it, the registration was nevertheless held binding. In re Barned's Banking Company, Peel's case, 36 Law J. Eep. (n.s.) Chanc. 767 ; Law Bep. 2 Chanc 674. (C) Management. (a) Officers. 1, — A document containing a joint and several guarantee from some directors of a company to that company was delivered to the secretary of the company, and remained in his possession on behalf of the company. Subsequently, upon one of those directors paying to the secretary all that the secre- tary considered he was liable for, the secretary under a mistake of law, made material alteration in the document, by cancelling the signature of the director without his knowledge : — Held, that the director was discharged from further liability on the contract, the possession of the secretary being that of the company, distinct from that of the di- rector. Bank of Hindostan, China and Japan v. Smith, 36 Law J. Eep. (n.s.) C. P. 241. 2. — An action by an incorporated banking com- pany against one of its managers for damages in respect of losses incurred by reason of discounts and advances for companies, in which the defen- dant was a shareholder : — Held, on the facts, not to be sustainable, such discounts and advances being considered to be in the regular and ordinary- course of business. The Bank of Upper Canada v. Bradshaw, Law Eep. 1 P. C. 479. 3. — By a clause in the articles of association of a joint-stock company, every director who shall accept or hold any other office under the company than that of manager is thereupon disqualified from being and shall cease to be a director. Q- who held the office of paid secretary to the com- pany, was elected a director. He never after such election claimed or received any salary as secretary, though he continued voluntarily to discharge the duties of secretary, there being no other person appointed to that office :— Held, that he ceased to hold the cUco of secretary when he was elected director, and tlu.t therefore he was not disqualified f2 108 COMPANY (C). )y the above clause from being such director. The Iron Ship Coating Company v. Bhmt, 37 Law J. Rep. (n.s.) C. p. 273 ; Law Eep. 3 C. P. 484. 4. — The appellants, two directors of a public company, wrote to the respondents, their bankers, informing them that one C had been appointed manager of the company, and had authority to draw cheques on the account of the company. At the date of the letter the account was, to the know- overdrew fchg hpellants, overdrawn, and C further tors, had n ■ account. The appellants, as such direc- there was ° authority to overdraw : — Held, that part of th evidence of an implied warranty on the the coiflp ® appellants that C had authority to bind nally li any, and that the. appellants were perso- Austral ^^^^- Cherry v. The Colonial Bank of jjg_ g asia, 38 Law J. Rep. (n.s.) P. C. 49 ; Law 5 P. C. 24. loot — "^^^ Court has no jurisdiction under the j^Qjjh section of the Companies Act, 1862, to order ^gp^eys of the company to be repaid by the ban- of the company unless the moneys can be WOarly proved to have been paid directly out of the funds of the company. In the matter of the Imperial Land Company of Marseilles, Limited, 39 LawJ.Eep.(N.s.)Chanc. 331;LawKep. lOEq.298. The bankers of a company are not officers of the company within the 1 65th section of the Act, and the Court has no jurisdiction, therefore, on a sum- mary application to order them to repay moneys improperly retained. Ibid. 6. — The plaintiff sued the defendants (a joint- etock company) for the salary due to him as an engineer. The articles of the association contained a provision that when and so soon as 3,000 shares in the company should have been subscribed for and allotted, the members of the company for the time being should be and continue associated for the objects of the company. At the time of the plaintiff's employinent by the directors as engineer only 3ftO shares in the company had been allotted, but the plaintiff was not aware of that fact : — Held, that the allotment of 3,000 shares was a condition precedent to the company's becoming associated for the objects thereof, and to the direc- tors' authority to bind the company by their con- tracts, and that the action therefore was not main- tainable. Pierce v. the Jersey Waterworks Company, 39 Law J. Eep. (n.s.) Ex. 156 ; Law Eep. 5 Ex. 209. Promissory note by secretary : personal lia- bility. [See Bill of Exchange, 5.] Jurisdiction of Court to decide as to liability of member of committee of management. [See infra (P) 47.] (A) Directors. (1) Powers, duties, and privileges of. 7. — Seven persons signed a memorandum of association of a company for making bricks ; the memorandum was duly registered. There never were any articles of association. Two of such per- sons (one professing to act as managing director, the other as chairman of the company) engaged the plaintiff as foreman of the company at certain brick works. In the action by the plaintiff for wages :^Held, that, in the absence of proof to the contrary, the company must be taken to have given authority to such two persons to engage the plain- tiff. Totterdell v. The Fareham Blue Brkk and Tile Company, 35 Law J. Eep. (n.s.) C. P. 278 ; Law Eep. 1 C. P. 674. 8. — By the deed of settlement of a company, shares might be transferred to any person appi-oved by the court of directors ; but it provided that no person should be entitled to become a transferee unless and until he should be approved of by the Court : — Held, that the power of rejection must- be exercised reasonably, and that a refusal to make any transfer would not be a reasonable exercise of it. A general demurrer to a bill filed by a share- holder against directors, who had discretionary power of objecting to a transferee, to compel them to approve of a transfer to some proper person, overruled, the bill alleging, in substance, that they had refused to make any transfer at all. Robinson and the Alliance Bank v. the Chartered Bank of India, Sf'c, 35 Beav. 79 ; Law Eep. 1 Eq. 32. 9. — Directors of a company have no power to refuse to register transfers of shares made bon4 fide unless there are special provisions to that effect in the regulations of the company: — So held, dissenting from the Master of the EoUs, 37 Law J. Eep. (n.s.) Chanc. 559 ; Law Eep. 6 Eq. 238. In re Smith, Knight and Co., ex parte Weston, 38 Law J. Eep. (n.s.) Chanc. 49; Law Eep. 4 Chane. 20, 3 Chanc. 125. A petition to wind up a company having been' presented, stood over in order that the company might pass resolutions for a voluntary winding- up. After such resolutions had been passed, an order was made on the petition to continue the voluntary winding-up under supervision: — ^Held, that the commencement of the winding-up under supervision dated from the passing of the. confir- matory resolution to wind up voluntarily. Ibid. 10. — By a clause in the articles of association of a company, the directors were prohibited from _ contracting any loan beyond 600^. without the consent of the company by special resolution. Held, that the clause did not preclude the directors from giving bills to the company's bankers without such consent, to secure the balance of an overdrawn account 'to a larger amount, and that the excess could be proved as a debt in the wind- ing-up. B) re the Ccfn Cilcen Mining Company, 38 Law J. Eep.(N.s.) Chanc. 78 ; Law Eep. 7 Eq. 88. H. — Directors of a company who had power to make and alter by-laws, to be entered in a book and signed by three directors passed a resolution by six directors, for the doing of an act which was opposed to a by-law, and such resolution was not entered in the book of by-laws, nor signed by three directors : — Held, affirming Stuart, V.C., Law Eep. 7 Eq. 91, that third parties, without notice of the by-law, could not be affected by it, and semble that the act which was done not being ultra vires the deed of association, the by-law was virtually altered by the resolution. Asiatic Bank- ing Corporation, Royal Bank of India's case, L:iw Eep. 4 Chanc. 252. 12.— A criminal charge brought by the plaintiff COMPANY (C). 109 against A, tKo soerotary of a company, th-it ho had issued a fraudnlent report and balance-sheet of the company, was dismissed. _The directors of the company then passed a resolution that A might, at the expense of the company, instruct the com- pany's solicitors to take proceedings against the plaintiff in respect of such prosecution, and A, by the company's solicitors, brought an action at law against the plaintiff in respect thereof, and obtained a verdict with costs against the plaintiff, who then filed this bill against A, the directors, and the company's solicitors, alleging that the resolution was ultra vires, and charging that the action had been illegally maintained by tiie directors,_and pray- ing for an account and payment of the costs in- curred therein by the plaintiff, and for an injunction to restrain the defendants from recovering the costs obtained therein. A demurrer by all the defen- dants as to the relief was allowed with costs, on the ground that this was a matter exclusively with- in the jurisdiction of the Court where the action was brought. Mbor&iigh v. Ayres, 39 Law J. Kep. (n.s.) Chanc. 601 ; Law Eep. 10 Eq. 367. 13. — The plaintiff was the agent of the defen- dants, a trading company, and it was part of his duty to furnish them with an account of his transactions, to enable them to prepare the balance- sheet for the inspection of the shareholders. This balance-sheet was prepared and duly referred to the auditors, who reported that there was a defici- ency for which the plaintiff was responsible, and that his accounts had been badly kept. There was evidence that an explanation had been offered to the auditors, whidi they had disregarded ; but no evidence that the directors had any knowledge of this explanation. The directors, after laying the accounts before a general meeting of the share- holders, caused a letter containing the part of the report which affected the character of tie plaintiff to be printed and forwarded to the absent share- holders : — ^Held, first, that this letter was published on a privileged occasion, as it was the duty of the defendants to communicate to all the shareholders, any part of the report of the auditors which materially affected the accounts of the company ; secondly, that there was no intrinsic or extrinsic evidence of malice to be left to the jury, as the report of the auditors was published without com- ment, and the explanations offered to the auditors did not come before the defendants; and that causing the letter to be printed was a reasonable and necessary mode of publishing it to the absent shareholders. Lawless v. the Anglo-Egyptian Cot- ton and Oil Company, 38 Law J. Eep. (n.s.) Q. B. 129 ; 10 Best & S. 226 ; Law Eep. i Q. B. 262. 14. — Where a joint-stock company acts as the agents of a person, in the purchase of shares in their own company, their dnty to their own share- holders relative thereto (as the registration of the transfer) does not arise, until their duty as agents of the purchaser has been completed. In re Im- perial Mercantile Credit Association, Marino's case, 36 Law J. Eep. (n.s.) Chanc. 468 ; Law Eep. 2 Chanc. 596. Power to accept bills qf exchange. [See (C) 34 infra.] (2) Liability of, on contracts for their own benefit ; or on breach of trust or of duty. 15.— In 1840, a railway company, by instru- ment under seal, agreed to grant to G & P, their executors, administrators or nominees, a lease of an hotel at one of their stations for a term of ninety-nine years ; and by the same instrument it was agreed between the parties that the said G & P, should have tlie occupation of the refreshment- rooms at the same station, subject to the same ■ restrictions and provisions as related to the carry- ing on the business of the hotel, both as regarded ■ the quality and price of provisions and the manage- ment thereof. Tlio lease of the Ijptel was executed ; it made no mention of the refreshment-rooms, which, however, were occupied by G & P. The plaintiff was the assignee of G & P of the lease, and all their interest" under the agreement of 1840, and occupied the refreshment-rooms :■ — Held, that he was entitled to have a deed executed by the company granting him the occupation of the refresh- ment-rooms, subject to the restrictions and pro- visions in the agreement mentioned. Flanagan V. The Great Western Eailway Company, 38 Law J. Eep. (n.s.) Chanc. 117; Law Eep. 7 Eq. 116. S, a director of a railway company, had entered into an agreement with the company for the occu- pation by a firm, of which he was a member, of ■ premises belonging to the company, and had assigned his interest und^r the agreement to the plaintiff: — Held, that the plaintiff was in the same position as S, and therefore could not maintiin a bill for specific performance of the agreement. Ibid. 16. — The directors and officers of a joint-stock company are bound to consult exclusively the interests of the sliareholders, and cannot retain pecuniary benefits acquired in the conduct of trans- actions afterwards sanctioned by the shareholders, unless the particulars of these benefits are fully explained to the shnruholders and approved of by them. The General Exchange Bank v. Horner, 39 Law J. Eep. (n.s.) Chanc. 393; Law Eep. 9 Eq. 480. The rights and liabilities of one company were transferred to another for the purpose of amalga- mation : — Held, that the purchas'ng company ac- quired the right to recover from the directors and of&cers of the selling company sums improperly received by them out of the assets of the selling company. 17. — Persons who abstain from exercising a fiduciary power entrusted to them, because such exercise would be against their own interests, will be held to all the same consequences, as if the power had been exercised. _ In re the National Provincial Marine Insurance Company; Gilbert's case, 39 Law J. Eep. (n.s.) Chanc. 837 ; Law Eep. 5 Chanc. 559. When, therefore, the directors of a company, whose plain duty it was in the interests of the com- pany to make a call on a given day, postponed making the call and thereby enabled one of their number to transfer shares which he held in the company, and the articles of the company provided 110 coMPAiiry (C). that no transfer should be rpgistored until anyojiU due had been paid, unless the transfer had been lodged for registration before the call was made : —Hold, on the company being wound up, that the transaction must be considered as if the call had boon made before the application for the transfer had been lodged with the directors, and, therefore, that the transfer was void, and the transferor must bo put on the list of contributories for the shares. Ibid. 18. — A company was formed for the purpose of carrying on the business of a bill broker and scri- vener, lending on securities, investing in securities, and doing all such things as the directors shall consider incidental or conducive to the attainment of those objects. The directors took shares in a projected banking company, not disclosing the transaction to the shareholders, binding themselves not to sell the shares before a certain time. De- murrer to a bill to make the directors personally liable, overruled. Joint~Stock Discount Comparty v. Brown, Law Eep. 3 Eq. 139. 10. — The directors of a company incorporated \mder the Act of 1 862 made out of the property of the company an improper payment : — Held, that as the whole transaction could not then be annulled a suit against the payee to recover the money received through the breach of trust of which ho had notice could not be entertained, London, Hamburgh and Continental BanA v. Henri/, Law Eep. 7 Eq, 33i. 20. — Articles of association of a banking com- pany, with a nominal capital of 1,200,000^. in 60,000 shares, of which the prospectus stated that the first issue would be 30,000, empowered the directors to commence business as soon as they should think fit, notwithstanding the whole capital might not have been subscribed for, and it provided that upon the first allotment of shares 10,000/, should be paid to the promoters. When only 5,000 shares had been subscribed for, and before the company was in a position to commence business, the directors allotted the shares and paid 5,000?. to the promoters, who immediately paid to four of the directors 500Z. apiece, - The company having been ordered to be wound up : — Held, in a suit by the official liquidator in the name of the company against the directors, to which the promoters were not parties, that the directors could not be charged with the money paid to the promoters, but that each director must repay to the company the 500/. so received by him. Where a company in course of liquidation is ordered to pay costs, such costs are not to be proved as a debt in the winding-up, but are payable in full out of the assets of the company. Madrid Bank v. Pell^, Law Kep. 7 Eq. 442. 21. (1) — A suit brought by the official liquida- tor of a company in process of winding-up, with the sanction of the Court, against the directors of the company, to recover from them the moneys of the company lost by their misconduct, is right both in form and substance. After the company had ceased to exist in its corporate character, the 95th section of the Companies Act, 1862, does not prevent the official liquidator from instituting the suit in his own name. Turguand v, Marshall, 37 Law J. Rep. (n.s.) Chanc. 582 ; Law Eep, 6 Eq. 112. Such a suit can only be brought for injury affecting the whole body of shareholders. It was therefore held, that directors could not in such » suit be made responsible for issuing false balance- sheets and false reports of the alfeirs of the com- pany, and for paying dividends improperly (unless they had appropriated profits to themseivee impro- perly by such acts),for that by these acts the injury was to individual shareholders, and in different degrees ; but any shareholder who had been in- jured by such misconduct would be entitled to proceed separately against the directors on that account. Ibid, But the directors were made liable in such a suit for losses occasioned by their not having called a meeting to consider the propriety of dissolving the company in accordance with the provisions of the deed of settlement, and by their having made advances to one of themselves in violation of the provisions of that deed. [But see next case.] Ibid. The estates of deceased directors are liable to make good such losses, as no distinction can in this respect be drawn between the position of directors and that of ordinary trustees, and the maxim " actio personalis moritur cum persona " does not apply. Ibid. It is the duty of directors to be acquainted with the state of the affairs and the contents of the books of the company; and they are equally responsible for misconduct, whether they have dis- charged that duty or not. Ibid. A compromise by the official liquidator with a contributory of tie company as to all his liabilities as a shareholder or contributory, does not discharge him from his liabilities on account of misconduct as a director. Ibid. 21. (2) — The deed of settlement of a banking company provided that if at any time the losses of the company should have exhausted the whole of the surplus fund, and also one-fourth of the paid-up capital of the company, the directors should, as soon as possible, call a special general meeting of the proprietors, and submit to it a full statement of the affairs of the company ; a,nd if it should ap- pear at such meeting that the losses of the company had exhausted the surplus fund and also one-fourth of the paid-up capital, the company was to be dis- solved. Losses having been incurred to the extent of more than one-fourth of the paid-up capital, a special meeting was called in 1842, at which it was resolved that the company should go on, and from that time till 1863 the company continued to be carried on, the directors issuing favourable balance-she(,'„o and declaring dividends. Further capital was lost, but no meeting was called again, and when the company was wound up, in 1863, the debts very considerably exceeded the assets. Upon a bill filed by the official liquidator, seeking to ihake the directors liable for the losses subse- quently incurred, it was held, reversing the decision of the Master of the Rolls (see la.st case), that as the shareholders were awiire of the position of affairs when it was resolved to continue the bank, COMPANY (C). in the directors were not liable for not calling another meeting and stopping the concern. Turqnand v. Marshall, 38 Law J. Rep. (n.s.) Chanc. 639 ; Law Eep. 4Chanc."376. The bill also sought to charge the directors with the loss sustained by allowing one of themselves to overdraw his account : — Held, reversing the de- cision of the Master of the Rolls (see last ease), that as this was within the powers, conferred on the directors by the deed of settlement they were not liable, and the bill was dismissed without costs. Ibid. 22. — Bill by a company in liquidation against its surviving directors, and the executors of a de- ceased director, seeking to make them liable for all loss sustained, by reason of their having pur- chased the goodwill, and undertaken the liabilities of a bill-broking and money-dealing business, which had turned out a losing concern. The bill shewed that the directors were authorised by the memorandum and articles of association, to pur- chase the business in question, upon such terms and under such stipulations as to guarantee or otherwise as might be agreed upon ; but alleged that, under the circumstances of tie case, thedirec- tors ought not to have completed the transaction ■without the sanction of a general meeting, and that they had in fact exercised their function so impru- dently, with such want of wisdom and judgment, both in purchasing the business at all, and in not taking mortgages on the private property of the vendors, that they ought to be fixed with the con- sequences thereof. The bill contained no charge of fraud, mala fides, or personal misconduct against the directors : — Held, on demurrer by the executors of the de- ceased director, that a bill could not be maintained in a Court of Equity for any loss beyond the money which had passed into the directors' hands ; and that, with regard to the capital which had to come into their hands, looking at the fact that the main object of the company was to purchase a business necessarily of a hazardous and speculative character, the charges in the bill did not amount to such a breach of trust on the part of the direc- tors, as to fix the estate of the deceased director with liability for the loss which had accrued : That the purchase of the business being strictly intra vires of the directors, it was not necessary to obtain the sanction of a general meeting : That the power to purchase under such stipula- tions as to guarantee as might be agreed upon, did not imply that the directors were bound to take mortgages on the property of the vendors. Demurrer allowed, reversing the order of Malins, V.C. Overend, Gumey S; Co., Limited, v. Gurney, 39 Law J. Rep. (n.s.) Chanc. 45 ; Law Rep. 4 Chanc. 701. 23. — Directors carried on the business of a company with unlimited liability, after a time when (it was alleged) it had become their duty to stop it, and out of their own pockets paid off pressing engagements of the company incurred after that time. On the company being wound up, the direc- tors claimed to rank as creditors and to have their claims set off against calls made by the liquidator. who objected that the debts had been incurred in breach of duty and could not be proved : — Held, tliat the claims ought to be allowed, subject to the question whether they would come into competition with tliose of other creditors, and to any liability for breach of duty which migh^ be established by the liquidator or any other person interested in proper proceedings taken for the purpose within a given limited time. Be Internationcd Life Assur- ance Society, ex parte certain Directors, 39 Law J. Rep. (n.s.) Chanc. 271. 24. — A person, although entitled to have his name taken off the register of a company by reason of a material variance between the prospectus and memorandum of association, cannot maintain a suit against a director personally for the return of the money paid on his shares, unless he has been de- ceived by some representation false to the know- ledge and made with the privity of the directors. Shi-p v. CrosskUl, 39 Law J. Rep. (n.s.) Chanc. 650 ; Law Rep. 10 Eq. 73. A stsitement in a prospectus, that half the capi- tal had been subscribed for, which was false at the date of the issue of the prospectus, but true when the plaintiff applied for shares : — Held, not to en- title the plaintiff to sue a director privy to the issue of the prospectus. Ibid. 25. — A board of directors knowing the com- pany to be insolvent made a call and ordered the seal of the company to be affixed to n mortgage, whereby that call and all other property of tho company were assigned to a trustee by way of security for some of themselves, who were person- ally liable as sureties for debts of the company. The company was afterwards ordered to be wound up, and was unable to pay its debts in full : — Held, that this transaction amounted to a fraudulent pre- ference, and that the directors who had received anything for their own benefit under the mortgage were liable to refund. Gaslight Improvement Company v. Terrell, 39 Law J. Rep. (n.s.) Chanc, 625 ; Law Rep. 10 Eq. 168. [And see Nos. 1-6, supra, and Nos. 62, 63, 56, infKL] (3) Proceedings against : summart/ jurisdiction. 26. — The power conferred on the Court by the 147th section of the Companies Act, 1862, of directing a voluntary winding-up to continue, but subject to its supervision, is absolutely discretion- ary. In re the Bank of Gibraltar and Malta, 36 Law J. Rep. (n.s.) Chanc. 49; Law Rep. 1 Chanc. 69. The summary jurisdiction of the Court under sections 165 and 138 is also discretionary; and, semble, it will not generally be exercised, in pre- ference to the procedure by bill, where there are complicated questions which would have to be in- vestigated in chambers. Ibid. Quaere -Whether the 165th section applies to a voluntary winding-up. Ibid. Semble — The Court has no jurisdiction, where a company is in process of being wound up volun- tarily, to make an order for winding it up compul- sorily on the petition of contributories. Ibid. 27.— The discretionary power conferred by the 165th section of the Companies Act, 1862, of deaU 112 COMPANY (C). ing summarily with delinquent directors and other officers of a company, applies only to cases in whicji tlio individual souglit to bo charged with the alleged misfeasance is living, and cannot be exor- cised against liis representatives if he be dead. In re The East of England Bank, ex parte Feltom's Executors, 35 Law J. Rep. (n.s.) Chane. 196; Law Eep. 1 Eq 219. In the winding-up of a company, under the Act of 1862, a summons was taken out by the official liquidators against the living directors of the company and the executors of such as were dead, to enforce against them the summary remedy provided by the 165th section of the Act, in respect of certain alleged misfeasances on the part respectively, of themselves or their testators. On summons by the executors of a deceased director, for a stay of proceedings on the former summons : — Held, that though unusual, it was a legitimate form of disputing the jurisdiction ; that the summary relief could not be had against them ; and that, both living and deceased directors being implicated in the charges made, and the adjust- ment of all rights in the winding-up requiring all parties to be made jointly liable, the remedy must be by suit. Ibid. 28. — The directors of a company established to purchase and carry on the business of a private firm received certain sums of money from the vendor. A motion by a shareholder, in a suit commenced on behalf of himself and of all other shareholders, to have this money paid into Court by the directors on the allegation, wh,ich was denied by them, that it was money of the Company, was refused by the Lords Justices (reversing an order of the Master of the Rolls). Hagell v.Currie, 36 Law J. Eep. (n.s.) Chanc. 448 ; Law Rep. 2Chanc. 449. The Court will not, on motion, order payment of money into Court when the equity in the bill is practically denied in the answer. Ibid. 29. — The Court will not make orders upon directors, &c., to pay money into Court, under section 166, unless in very plain cases, and where there is no point of law to be determined. It is entirely in the discretion of the Court, and it will not make the order where it is a f't case for a suit. In re Royal Hotel Company of Great Yanntmth, Law Rep. 4 Eq. 244. 30. — The summary jurisdiction to make direc- tors or o'ther officers of a company who have misapplied or retained moneys of the company repay the moneys so misapplied or retained, given by the Companies Act, 1862, section 165, is only applicable in cases of a simple character. Where the matter is complicated, the repayment must be mforced by bill. In re The Brighton Brewery Company, 37 Law J. Rep. (n.s.) Chanc. 278. A summary order was made under this section, that directors who had received from the pro- moter of the company sums of money in considera- ;ion of their becoming directors, which sums he iad paid out of the moneys of the company, should ■epay the moneys which they had so received. Ibid. A similar order was made that the directors should repay moneys which thoy had paid them- selves as their fees, after a petition had been presented to wind up the company, and notice had been served on them not to part or deal with the moneys of the company. Ibidj (4) Remuneration, 31. — The deed of settlement of a company, formed in 1850 provided that in all contracts en- tered into on behalf of the company, for the supply of goods, or the performance of any work or services, or on any other account, the directors should ex- pressly stipulate that the funds and property of the company'should alone be liable. In the winding-up of the company, all the assets having been ex- hausted: — Held, that the shareholders were not personally liable to satisfy a claim by directors for unpaid salary, such salary having been expressly made payable out of the funds and property or annual profits of the company, In re the Anglo- Californian Gold Mining Company, 37 Law J. Rep. (n.s.) Chanc. 78. Held, also, that a claim for money advanced to the company, under a deed of security embodying the above provision, was not a debt as against the shareholders individually. Ibid. 32. — The provisional directors of a company, provisionally registered under the Joint-Stock Companies Act, 1844, 7& 8 Vict. c. 110, appointed one of their number managing director, and agreed to allow him as a remuneration for his services as manager, a commission on shares paid upon, amounting to, first one-twentieth, and afterwards, one-tenth of the capital of the company : — Held, that this was not a contract for " services necessary for the establishing of the company " within the 23rd section of the Act. In re the State Mre Insurance Company, ex parte Peter Morrison's Assignees, 36 Law J. Eep. (n.s.) Chanc. 634. A similar arrangement, as to the remuneration of the managing director, made after the complete registration of the companj-, comes within the 29th section of the Act, and must be submitted to a general meeting of the shareholders, " as a contract or dealing in which a director is interested," not- withstanding a provision in the deed of settlement that the directors may allow the manager " such salary or remuneration as they shall think fit." Ibid. (5) Notice to. 33. — It is not essential upon an assignment of a chose in action that the notice given to the trustee or other person owing the debt or duty should be given by the assignee. It is sufficient that the notice is distinct and received by the trustee or other such person in his official capacity. Ex parte the Agra Bank, in re Worcester, 37 Law J. Rep. (n.s.) Bankr. 23 ; Law Rep. 3 Chanc. 555. W assigned certain shares in a company as a security for debt. The assignee took possession of the certificate and the transfer, but did not register it or give any notice of the assignment to the com- pany. W, however, told some of the directors of the transfer, and the directors at a board meeting discussed the matter with a view to certain arrange- COMPANY (C). 113 ments. W-soon after became bankrupt : — Held, that the notica so acquired by the directors in their official capacity, and acted on by them, was suffici- ent to take the shares out of the order and disposi- tion of W. Ibid. 34. — Under the Companies Act, 1862, s. 47, a company, not otherwise having this power, has not power to accept bills of exchange. F was a director in three separate companies — A, B and C. A bill of exchange was drawn by com- pany A upon and accepted by company B and in- dorsed for value to company C. F did not inter- fere in the transaction as a director of company C, but did as director of the other companies, and as such had notice that it was an accommodation bill : — Held, this was not notice to company C. In re the Peruvian Railways Company. The Peruvian Eailways Company v. The T/iames and Mersey Marine Irisurance Company, 36 Law J. Eep. (n.s.) Chanc. 864 ; Law Eep. 2 Chanc. 617. 35. — Where bills, purchased by the holder with misapplied moneys of other persons, were after- wards sold by him to a company of which he had then become sole managing director : — Held, that the company was not thereby affected with notice of the fraud. In re European Bank, ex parte Oriental Commercial Bank, 39 Law J. Eep. (n.s.) Chanc. 588 ; Law Eep. 5 Chanc. App- 358. [See No. 61 infra, and Bbcl of Exchange, 24.] (c) Borrowing powers, 36. — ^Where directors of a public company have entered into an informal agreement within the limits of their power, it is in equity binding on the company, and this Court will give effect to it. In re Strand Music Hall Compaivy, Limited, ex parte European and American Finance Company, Limited, 35 Beav, 153. Whether bonds issued by a public company in which the names of the obligees are left in the bank, are valid, qumr'e. Ibid. The proper mode of construing any written in- strument is to give effect to every part of it, if this be possible, and not to strike out or nullify one clause in a deed, unless it be impossible to reconcile it with another and more express clause in the same deed. The 78th clause of articles of association limited the power of directors of borrowing to ] 0,000/., unless authorised by a "general meeting." By the 35th clause a " special meeting " might authorise the borrowing of such sums as it thought fit : — Held, that the directors might be authorised to borrow beyond 10,000/., either by a general or a special meeting. Ibid. 37. — A bill prayed that a mortgage might be cancelled and for further relief, but it proved to be valid to some extent. The Court refused the relief asked, or to make a decree for redemption on payment of what was properly due, and dis- missed the bill with costs. The Cremer, ^c. Mining Company, Limited, v. WUlyams, 35 Beav. 353. A mining company empowered to raise money gave a security to bankers for moneys due and to become due from the contractor, to whom they Digest, 1865-70. were indebted : — Held, that though the company could not guarantee the debt of a stranger, still that the advances to the contractor might be valid if he were the agent of the company ; and semble, that the security would be valid to the extent of the money properly expended by the contractor on the works of the company. Ibid. 38. — E was induced by W, the secretary to a railway company, to advance money to the com- pany upon the security of a Lloyd's bond, which W represented as being a valid and legal security, at a time when the company had in fact no bor- rowing power, and the bond was therefore invalid : — Held, that even assuming that W was acting as the agent of the directors in making the above representation, E had no equity to make the directors, who authorised the issuing of the bond, recoup the money advanced by him. Bashdall v. Ford, 35 Law J. Eep. (n.s.) Chanc. 769; Law Eep. 2 Eq. 750. 39. — The directors of a company having power to issue debentures and to borrow money on mort- gage or otherwise, under an arrangement with certain creditors of the company, issued debentures in payment of existing debts due from the com- pany. The arrangement was intended to extend to all the creditors, but certain creditors dissented therefrom and only came into its terms on the very day when a petition for winding up the com- pany was presented, three weelcs after the arrange- ment was made. The company was wound np voluntarily nnder supervision: — Held, that the debentures were not invalidated either by reason '' of their having been issued in payment of existing debts, or of the arrangement with the creditors not having been fully carried out ; and that there had been no frandulent preference of those credi- tors who had taken them in payment of their debts. In re The Inns of Court Hotel Company, Limited, 37 Law J. Eep. (n.s.) Chanc. 692; Law Eep. 6 Eq. 82. 40. — A charge upon the assets of a company will not bind the company unless created in the mode and executed with the formalities prescribed by their articles of association, /re re The Gene- ral Provident Assurance Company, Bridger's case, 38 Law J. Eep. (n.s.) Chanc. 320 ; Law Eep. 5 Chanc. 305. B advanced money to a company upon the deposit of certain title deeds, accompanied by a memorandum of charge signed by the general manager, but not under the seal of the company, nor executed with other requisite formalities. There was evidence that the manager had been authorised by the directors to effect the loan and sign the memorandum, but no entry of any reso- lution for that purpose was inade in the books of the company. In the winding-up B's claim was disallowed. Ibid. Decree of Malins, V.C, Law Eep. 9 Eq. 74, affirmed. Ibid. 41. — Assignment by directors, jn consideration of further time being given for payment of a debt already due, of a call already determined on, and made a few days afterwards : — Held, not an interference with the discretion which directors Q 114 COMPANY (C). are bound to exercise in making calls, and con- sequently a valid assignment, enforceable after an order to wind up under supervision. In re The Sankey Broojc Coal Company, Limited, 39 Law J. Eep. (n.s.) Ohane. 223 ; Law Eep. 9 Eq. 721. Stanley's case, 33 Law J. Eep. (n.s.) Chanc. 535, distinguished. Ibid. 42. — Directors of a life assurance company borrowed money from their bankers for the pur- poses of the company, and by resolution declared a charge in favour of the bankers upon the unpaid proceeds of calls already made. They borrowed a further sum, and passed a second similar re- solution after the presentation of a winding-up petition, but before any order made. The company having been ordered to be wound up : — Held, that both charges were effectual. Be The International Life Assurance Society, ex parte Gibbs ^ West, 39 Law J. Eep. (n.s.) Chanc. 667; Law Eep. lOEq. 312. The directors in the above case had made them- selves personally responsible to the bankers for the amount of both the above-mentioned loans, and were compelled to pay the same : — Held, that they were entitled to stand in the shoes of the bankers as against the proceeds of the calls. Ibid. 43. — Directors of a life assurance company not being a limited company within the Compa- ' nies Acts advanced sums out of their own moneys for the benefit of the company : — Held, that they were entitled to set off the sums so due to them against calls made upon them as contributories. Be International Life Assurance Society, ex parte Gibbs, 39 Law J. Eep. (n.s.) Chanc. 667. GrisselVs case, 36 Law J. Eep. (n.s.) Chanc. 762, see infra (E) 46, and Brighton Arcade Com- pany V. Bowling, 37 Law J. Eep. (n.s.) C. P. 125, commented upon. Ibid. 44. — Bill of exchange by directors of company to secure amount current held within their power. [See supra (C) 10.] (d) Acts ultra vires. 45.— A company, established for the prepa- ration and sale of porcelain clay, carried on busi- ness for several years but without success ; their resources having become nearly exhausted, and an entire reconstruction of their works and alter- ation in their mode of manufacture being found necessary, a resolution was passed, for winding up the company. Before the resolution was con- firmed, a proposition was made, and finally ac- cepted by a majority of more than two-thirds of the shareholders for leasing their works upon terms apparently advantageous. The deed of settlement empowered the directors, with the sanction of two-thirds of the votes recorded at an extraordinary general meeting, to do any act which the whole body of shareholders, all con- senting, could do. Upon a bill filed by a dissentient shareholder to set aside the lease as being inconsistent with the purpose for which the company had been in- corporated, and as having been granted ultra vires : — Held, that the lease was good, as being a lawful means of making the most of the asseti of the company, and that the granting of it was not ultra vires. Featherstonhaugh v. The Lei Moor Porcelain Clay Compan/y, 36 Law J. Eep (n.s.) Chanc. 84 ; Law Eep. 1 Eq. 318. 46. — The objects of a joint-stock compan; were stated in the articles of association to be fo " the purchasing, selling, and cutting of corks b; improved machinery, for which a patent wa granted to B C on 6th November, 1862":— Held that the purchase of the patent was not ultr; vires. In re British and Foreign Cork Co., LeiJ child's case. Law Eep. 1 Eq. 231. 47. — Shareholders of a company attending ; general meeting must be assumed to know th' contents of the articles of association. Therefore where by such articles the capital was 300,000^. with power to increase it to 600,000?., and it wa stated in the balance-sheet»that the capital eon sisted of 400,000/., and resolutions were passa increasing the capital to 600,000/. : — Held, thi was a valid ratification of an unauthorised issue o 100,000/., although the fact was not drawn to th' attention of the meeting. In re New Zealam Banking Corporation, SewelVs case. Law Eep. '■ Chanc. 131. 48. — ^Where a bill is filed on behalf of a com pany to set aside a transaction as being ultra vires acquiescence cannot be established as a defenc without shewing that every member of the com pany has assented to the transaction. Imperie Bank of China, India, and Japan v. Bank of Hin diisian, China, and Japan, Law Eep. 6 Eq. 91. 49. — An ultra vires agreement between a share holder and directors, by which the latter agreed t forfeit the shares and discharge the shareholde from liability : — Held, to have been rendered vali and effectual by the acquiescence of the other share holders for many years, they having been all alon cognisant of the .transaction and not disputing il The meaning of " acquiescence" in these cases es plained per Lord Cairns. Evans v. Smallcombi 39 Law J. Eep. (n.s.) Chanc. 733; Law Eep. H. L. 249. 50. — One of the articles of association of company formed under the Act of 1862 provide that no agreement entered into or act done by tji directors, to which the assent of the company i general meeting should be given, should be aftei wards impeached as being beyond or opposed] the objects of the company. The directors entere into an agreement with a shareholder in the con pany, to cancel his unpaid-up shares, and tl agreement was duly assented to by a general mee ing of the company. The company was afte: wards, and before the shares were cancelled by tl company, ordered to be wound up, and the shan holder was placed on the list of contributories :- Held, in a suit by the shareholder against ti company, the liquidators and others, for specif performance of the agreement, that the latter wi not ultra vires, and that the plaintiff was entith to have his name removed from the list of coi tributories. Marshall v. The Glamorgan Iron ai Coal Company, Limited, 3b Law J. Eep. (n.s Chanc. 69 ; Law Eep. 7 Eq. 129. COMPANY (C). U5 51.— Where a company was forbidden by its artides of association to hold its own shares, held, that a guarantee given by the directors whereby bankers were induced to supply funds to enable third parties to take up shares was a breach of trust, and that the bankers having notice thereof must refund what they had received on such guarantee. Gray v. Lerwis, Law Eep. 8 Eq. 626. 52. — Power to buy, sell, or loan, on all descrip- tions of shares, including shares issued by the company (not being speculative' transactions for the rise and fall of shares) ; and also power to invest on such securities or investments as the board might think proper: — Held, reversing the M.E., Law Eep. 8 Eq. 7, not to authorise the direc- tors to purchase at a premium shares of the com- pany itself, while the company was in formation, and some of the shares purchased had not been allotted. Held, also, that the directors who sanc- tioned payment for the shares were jointly and severally liable to make good the purchase-money. Land Credit Company of Ireland v. Lord Fermoy, Law Eep. 5 Chanc. 763. 63. — Directors of a bill-broking company with power '■ to invest on securities," in pursuance of resolutions passed at several meetings, took up shares in a newly forming banking company on behalf of their own company, and paid for the same out of their own company's funds': — Held, that this was a breach of trust which each and all of the directors who had been present at any of the board meetings referred to were liable to make good to the company. Joint-Stock Discount Com- pany V. Brown, Law Eep. 8 Eq. 376. The bill was dismissed as against a director who had- not been present at any of the meetings at which the matter was discussed, but without costs. Ibid. Observations on the duties and liabilities of directors. Ibid. 64. — A simple contract-creditor of a company cannot sustain a bill to restrain the company from dealing with their assets as they please, on the ground that they are diminishing the fund for payment of his debt. A shareholder in a com- pany who seeks to restrain the company from doing an act ultra vires, ^must show, by distinct averments, the illegality of the act. Where a company have paid for things chargeable to capital out of revenue, they may afterwards recoup re- venue out of capital, and, if necessary, raise fresh capital for that purpose under their borrowing powers. Mills v. Northern, Bailway of Buenos Ayres Company, Law Eep. 5 Chanc. 621. 65, — Persons who bonfi, fide contract with de facto directors of a company, in a manner au- thorised by the articles of association, are not affected by any irregularity in the internal ma- nagement of the company, of which they hate no notice, even if the irregularity is such that the directors were nefer properly appointed. In re County Life Assurance Company, 39 Law J. Eep. (M.S.) Chanc. 471 ; Law Eep. 5 Chanc. 288. In 1863 the C Life Assurance Co. was regis- tered. In the articles certain persons were named as first directors) with power to add to their num- ber, until the first general meeting. P was named as first manager, or managing director. Policies were to be executed by three directors, and the whole control of the company was to be in the hands of the directors. The directors named in the articles, being dissatisfied with the constitution of the company, refused to carry on business, and passed a resolution that nothing should be done in the affairs of . the company, and no meetings should be held. Notwithstanding this, P and one of the subscribers of the men\orandum, other than the directors, took steps to carry on business : they elected new directors, issued and allotted shares, registered offices, made a seal, and granted policies ; — Held, that a policy granted by de facto direc- tors, and executed by them in a manner accord- ing with the articles, and sealed with the above- mentioned seal, was binding upon the company. Ibid. 56. — A banking company which is authorised by its memorandum and articles of association to hold shares in joint-stock companies, and to make advances on the security of such shares, is not thereby empowered to purchase its own shares. Nothing but a direct authority given in plain terms to purchase its own shares can enable a company to make a valid purchase of them. In re London, Hamburgh, and- Continental Ex' change Bank, Zulueta's Claim, 39 Law J. Eep. (n.s.) Chanc. 598 ; Law Eep. 5 Chanc. 444. 57. — The broker of a banking company, acting under the orders of the directors, bought shares in the company on behalf of the company, and paid for them out of moneys which had been placed in his hands for investment. The shares were transferred into the name of a nominee of the company, and the broker was repaid by being credited with the price paid by him for the shares in his banking account with the company : — Held, reversing an order of the M.E., 39 Law J. Eep. (n.s.) Chanc. 361; Law Eep. 8 Eq. 270, on the winding-oip of the company, that the trans- action was ultra vires of the directors to the knowledge of the broker, and that, therefore, the liquidator might set off the price of the shares against proof of the balance standing to the credit of the broker. In re London, Hamburgh, and Continental Exchange Banlc, Zulueta's Claim, 39 Law J. Bep. (n.s.) Chanc. 598 ; Law Eep. 5 Chanc. 444. 58. — A railway company had power, by an Act of Parliament, to raise a certain amount of new capital by the issue of new shares of stock, but it was declared by the same Act — "The company shall not, out of any money by this Act authorised to be raised, . . . pay interest or dividend to any shareholder. . . ." Owing to the state of the money market the company were obliged to apply the revenue, which would hats sufficed to pay the proposed dividend, in payment off of deben- tures which the holders would, not renew ; and the new shares not being saleable, except at a discount, the dira.;tors proposed, and a general meeting sanctioned, the proposal that new shares should be given at par in payment of dividends: — Held, upon a bill by a dissentient shareholder, over* q2 .16 COMPANY (C). ruling a demurrer By the company, and granting an injunction, that such proposal was ultra vires. Hoole V. Great Western Bailway Company, Law Eep. 3 Chanc. 262. (e) Contracts not under seal. 59. — A person acting under the express au- thority of a company incorporated under the Joint- Stock Companies Act, 1856, in the year 1865 entered into a contract, by -writing not under seal, to purchase land on behalf of the company: — Hold, in a suit for specific performance, that the 41st section of 19 & 20 Viot. c. 47, was not re- pealed as to companies incorporated vmder that Act by the 205th sec. of the Companies Act, 1862, and the company was bound by the contract. Frince v. Prince, 35 Law J. Eep. (n.s.) Chanc. 290 ; Law Eep. 1 Eq. 490. 60. — By a contract made with a company in- corporated under the Companies Act, 1862, for the purpose of excavating and working coal mines, the defendant contracted to supply the company with a pumping-engine and machineiy for the use of one of the company's mines : — Held, on appeal from the Court of Common Pleas, 37 Law J. (n.6.) C. p. 211 ; Law Eep. 3 C. P. 463, that as the engine and machinery were necessary for the purposes for which the company was formed, the company could maintain an action for the breach of such contract, although it was not under seal. The South of Ireland Colliery Company, Limited, T. Waddle, (Ex. Ch.) 38 Law J. Eep. (n.s.) C. P. 338; Law Eep. 4 C. P. 617. [And see No. 40 supra.] (/) Notices. 61. — Notice to creditors under the General Orders of March 21, 1868, may, if the creditors are unknown, be given by advertisement. In re The Geniral Bank for the promotion of Agriculture and Public Works, Limited and Reduced, 38 Law J. Eep. (n.s.) Chanc. 168. [And see Nos. 34, 35 supra.] (g) Change of name. 62. — Whena company changes its name, under the Companies Act, 18'62, s. 13, the change is not complete till the new name is entered on the register and a certificate' of incorporation issued under that section. Shackleford, Ford ^ Company, Limited, v. Oweri. Thk same v. Dangerfield, 37 Law J. Eep. (n.s.) C. p. 151; Law Eep. 3 C. P. 407. When 'before such registration and certificate a call has been made in the old name, but the notice thereof given in the new name, the notice is good as respects shareholders who knew of the con- templated change, and so knew to what company the notice related. Ibid. Where the directors of a compxny were autho- rised to accept surrenders of share?, if tliiy thought fit; to the number of 3,000, and a shareholder elected to surrender his shares when their number would not complete such 3,000 shares, it was held, that the directors might refuse" to tfike ail the shares of such shareholder, and might accept sur- renders of- all the shares of some future surren- derees whose opposition they desired to get rid of. Ibid.' {h) Alteration in number or ammmt of shares. 63,— The proviso at the end of the 196th section of the Companies Act, 1862, has not the effect of preserving to a company in existence at the date of the Act, and afterwards registered under it as a limited company, a power to reduce the amount of its capital originally given by its deed of settlement ; but after registration under the Act with limited liability, such power is gone. The Droitwich Patent Salt Company, lAmited, v. The Hon. Edward Cecil Curzon, 37 I^w J. Eep. (n.s.) Ex. 2 ; Law Eep. 3 Ex. 35. 64. — The proceedings under this Act (30 & 31 Vict. c. 131, s. 9) and the e-vidence necessary to obtain the sanction of the Court for the reduction of capital and shares of a company considered. The continuance of the word "reduced" after "limited," in the style of the company, allowed to be dropped three months after the order. In re Sharp, Steward ^ Co., Law Eep. 5 Eq. 155. 65. — The rule laid down in In re Sharp, Stewart S; Co. (last case), fixing three months from the date of the order for reducing the capital of a company, as the time during which the words "and reduced" must be used in the company's title, approved and followed. In re Estate Com- pany, Law Eep. 6 Chanc. 407. 66. — Where a company reduces its capital under the Companies Act^, 1867, it is sufficient that the term " reduced " should be used as part of the title of the company for a total period of three months, although the whole or part of such period may have expired before the order con- . firming the reduction of capital is made. Be MuntS Metal Company, Limited and Reduced, 39 Law J. Eep. (n.s.) Chanc. 704. 67. — A company had petitioned for an order to cenfirm a resolution to reduce their capital. On the application of a lessor to the company, a sum of money was ordered to be paid into Court and invested as security for part of the rent, and to be retained in Court for a part of the term of the lease. Telegraph and Maintenance Company, Limited and Reduced. Ex parte Enderhy's Trus- tees, 39 iaw J. Eep. (n.s.) Chanc. 723 ; Law Eep. 10 Eq. 384. 68. — By the 16th section of the Companies Clauses Consolidation Act, 1845, it is enacted that " no shareholder shall be entitled to transfer any share after any call shall have been made in respect thereof, until he shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him." H, being the holder of certain 25^. shares in a railway company, had alloted to him, in respect of those shares, sixty-six new " preference 101. shares," created for the purpose of raising additional capital. Calls were made in respect of both sets of shares, and those made in respect of the 10?. shares held by the defendant were duly paid by him, b\it some of those made in respect of the 251. shares held by COMPANY (C). 117 him were never paid. The 101. shares were subse- quently converted into stock, and were sold by H to the plaintiff; but the company refused to register the transfer, on the ground tiat H had not paid the calls due upon the original 2bl. shares held by him : — Held, affirming the judgment of the Court of Queert's Bench, 36 Law J. Kep. (n.s.) Q. B. 33, that there being no calls due in respect of the 10/. shares, H was entitled to transfer the stock which they had been converted to the plain- tiff, and that the company were bound to register the transfer when required to do so. Huhhersty V. The Manchester, Sheffield and Lincolnshire Bail- way Company, 36 Law J. Rep. (n.s.) Q. B. 198; 8 Best & S. 420 ; Law Rep. 2 Q. B. 471. (i) Distribution of capital. 69. — A company's deed provided that the com- pany should not be affected by notice of any trust, and that where any share should become vested in any person for any interest not absolute, the receipt of the shareholder should remain a suffi- cient discharge: — Bteld, that the equitable mortga- gee had a right to sue the company. Binney v. the Ince Hall Coal and Cannel Company, 35 Law J. Rep. (n.s.) Chanc. 363. Net profits properly so called, are to be ascer- tained by putting a value on all the assets of the company of whatever nature, and deducting there- from all liabilities, including among such liabjlities the amount of the contributed capital, the surplus then remaining being net profits. Ibid. Circumstances considered under which such net profits may, at the wish of the majority of share- hold'ers, be applied in repayment of contributed capital, although the deed of settlement seems to contemplate a continuing capital, as in an ordinary partnership, there being, however, no express pro- hibition in the deed. Ibid. 70. — The right of shareholders in a company to a preferential dividend, and repayment of capi- tal out of profits, does not, in the absence of any special agreement, carry with it the right to a pre- ference in the distribution of surplus assets under a winding-up. In re the London Indiarubber Com- pany, 37 Law J. Rep. Ghana (n.s.) 23-5 ; Law Eep. 5 Eq. 619. ' .71. — Where a company is being wound up, its assets must be applied pari passu in payment of its liabilities, as they existed at the .commence- ment of the winding-up. And where some of the creditors had, under a prior inspectorship deed, received a dividend on their debts out of assets of the company, but others had not, although they were equally entitled : — Held, there having been _ no fraudulent preference, that the Court had no jurisdiction to order that a creditor who had not received such dividend, should be paid such divi- dend before the pari passu distribution in the winding-up. In re Smith, Knight ^ Co. Ex parte Ashhury, 37 Law J. Eep. (n.s.) Chanc. 264 ; Law Eep. 5 Eq. 223. 72. — A railway company entered into a con- tract for the construction of an extension of the railway. The contractors were bound to com- plete the extension by the 31st of December, 1867, and until completion to pay to the directors of the company interest on so much of the extension capi- tal as should from time to time be called and paid up ; but if any delay in delivering possession of the land to the contractors should render it im- practicable to complete the extension by the time appointed, such allowance was tb he made to the contractors as should be equivalent to the interest payable by them for the period of the delay so occasioned. The company's Acts prohibited tlie payment of dividends out of capital. A subse- quent Act enacted that aill moneys paid by the contractors in respect of non-completion should be carried to revenue account and be applicable to the payment of dividends on the extension capi- tal. The extension was not completed on the 31st of December, 1868, and accordingly the contractors paid to the directors 42,6Coi. in respect of the half-year ending on that day ; but the directors, admitting that the delay was attributable to the company's default in delivering possession of the land, had repaid, or were about to repay this sum to the contractors out of capital : — Held, thpt the 42,600/. were not really "moneys paid by the con- tractors in respect of non- completion," and that to apply this sum in payment of dividends would be a violation of the statutory prohibitions against paying dividends out of capital, and the company and its directors were accordingly restrained by injunction from so applying them. Salisbury v. the Metropolitan Railway Company, 38 Law J. Rep. (n.s.) Chanc. 249. 73. — There is jurisdiction under the Companies Act, 1862, s. 101, upon a summary application in a winding-up, to order a shareholder to refund a dividend improperly declared ; and, a fortiori, under section 165, such an order may be made against a director. In re the Mercantile Trading Company, Stringer's case, 38 Law J. Rep. (n.s.) Chanc. 698 ; Law Eep. 4 Chanc. 475. Circumstances considered under which a balance- sheet shewing a profit is to be held delusive. Ibid. Where a company was engaged in a highly hazardous course of trade (that of running a blockade), under which large profits had been realised, a balance-slieet in which the assets were honestly estimated, although so situated as to be in great danger of loss, was held to be a pro- per balance-sheet, upheld, although through the occurrence of subsequent events the assets were destroyed or became worthless. An application to make a director refund the dividend was there- fore refused upon the merits. Ibid. (Jc) Transfer of business. 74. — A financial company made an arrange- ment with a banking company for a combination of the two. By this arrangement it was agreed that the financial company, should be wound up voluntarily ; that the banking company should ad- vance money to discharge the liabilities, and should receive the proceeds of all the assets of the finan- cial company as realised ; that, after complete liquidation and payment to the bank by means of the assets (assisted, if necessary, by calls upon 118 COMPANY (0). the shareholders in the financial company) of a certain sum over and above all adTances, the shareholders of the financial company were to he at liberty to exchange every three shares (21. paid) in it for one (bl. paid) in the banking com- pany. The arrangement not being sanctioned by the articles of association of the financial com- pany: — Held, affirming the decision of Wood, V.C, 37 Law J. Eep. (n.s.) Chanc. 281, that it could not be supported as a sale of assets in considera- tion of shares within the 161st section of the Companies Act, 1862. Clinch v. The Financial Corporation, Limited, 38 Law J. Eep. (n.s.) Chanc. 1 ; Law Eep. 4 Chanc. 117. A suit by one shareholder, on behalf of himself and all other shareholders, to set aside a contract which is ultra vires, is properly constituted, though a majority of shareholders may have assented to the arrangement, and they are not made parties to the suit. Ibid. The deed of arrangement having been executed on the 17th of May, the plaintiff objected to it early in June, but did not file his bill till Novem- ber : — Held, that the suit being one, not for avoid- ing a contract into which the plaintiff had de facto entered, but for asserting and maintaining lights of which he had never been deprived, he was not disentitled to relief on the score of delay. Ibid. 75. — The plaintiff, a shareholder in a joint- stock company, incorporated under the Com- panies Act, 1862, expressed his dissent from a resolution duly passed for the voluntary winding- up of the company and the transfer of the business to another company, and required the liquidators either to abstain from carrying the resolution into effect, or to purchase his interest at a price to be determined as in the statute provided. By the 196th clause- of the articles of association of the company, differences arising between the company and the shareholders, Were to- be referred to the arbitration' of two persons. By the 197th clause, one of the arbitrators was to be appointed by each party. By the 200th clause, the arbitrators were to appoint an umpire. By the 201st clause, if the arbitrators did not within fourteen days after their appointment appoint an umpire, then, on the application of the parties in difference, or either of them, an umpire might be appointed by the governor of the Bank of England, or by a Judge under the Common Law Procedure Act, 1864. , And by the 203rd clause; the award was to be binding. Arbitrators were appointed by both parties respectively, but they did iiot, within the time required, appoint an umpire, and upon the application of the plaintiff, an umpire was ap- pointed by a Judge. The umpire made his award that the price to be paid for the purchase of the plaintiff's interest Was 2,100^., which sum, with costs, he directed the company to pay to the plaintiff: — Held, on demurrer to a declaration Betting out the above facts and articles, that the umpire was properly appointed under such articles, and that under the 161st and 162nd sections of the Companies Act, 1862, an action would lie against the company to recover the amount awarded. De Eosa^ v. The Anglo-Italian Bank, 38Law J.Eep. (N.s.) Q,. B. 161; 10 Best & S. 364 ; Law Eep. 4 a. B. 462. The defendants pleaded, on equitable grotinds, that, before the resolution was passed, the plaintiff was indebted for calls upon his shares, whereby an action accrued to the defendants, and the shares were liable to be forfeited ; that he and the defendants agreed that, in consideration that the defendants would give him time and would ab- stain from forfeiting the shares, he would consent to the proposal of the directors, and would not dissent from the resolution; that they did give him time, and did abstain from forfeiting his shares, &c.:— Held, that the plea disclosed no de- fence to- the action, and that it was bad. Ibid. 76. — The holder of a life policy in company A, who lias notice that company A has transferred all its business to company B, and who without objection continued to pay the premiums to com- pahy B, cannot afterwards require payment of the policy moneys from company A. Be National Frovincial Life Assurance Society, ex parte Flem- ing and ex parte Kettle, 39 Law J. Eep. (h.s.) Chanc. 260 ; Law Eep. 9 Eq. 306. In 1851, a life assurance was effected in the N P Society. The policy shortly afterwards became vested in F. In 1856, the N P Society trans- ferred all its business to the B of L Association, and ceased to carry on business. In 1868, the B of L Association similarly transferred all its busi- ness to the Albert Company. E continued vrithout objection to pay the premiums to the B of L As- sociation and to the Albert Company. In 1859, the life dropped, and P applied for payment to the Albert Company. B^ore any payment was made, the Albert Company was ordered to be wound up. F then presented a petition to wind up the N P Society :— Held, that P had by acquiescence and conduct adopted the Albert Com- pany as his debtor, and had lost all right to claim payment from the N P Society. Ibid. 77. — A mutual life assurance society, without capital, but of which each member had a right to contribution from the rest whenever a life dropped, by deed^ transferred aU. its assets and liabilities to another company. On a petition by executors of a deceased member to wind up the society :•:— Held, that thefe had been a complete novation, and that the petition must be dismissed. In . re Merchants and Tradesman's Assurance Society, Law Eep. 9 Eq. 694. 78. — A company was being wound up volun- tarily for the purpose of ti?ansforming it into a new company with the salne objects, and all the shareholders, except one, concurred in the fesolu- tions for that purpose. The Irrigation Company of France, Limited, 39 Law J. Eep. (n.s.) Chanc. 663. Though the transformation Was not clearly autho- rised by the articles of association, a petition by the dissentient shareholder for a compulsory winding-up was dismissed, and an order was made that his interest in the company should be Valued, and the value be paid to him. Ibid. 79, — Where, in pursuance of a power in the COMPANY (C). 119 deed of settlement of an unregistered association, the business of the association was transferred to the A company, and it was agreed that each pro- prietor in the association was to have the option either of being repaid the amount he had paid upon his shares, or of having shares in the A company allotted to him in lieu of them, both the A company and the association being afterwards in liquidation : — It was held that a shareholder in the association, who had received for his shares part cash and part shares of the A company, was liable as a contributory of the association. In re Bank of London Assurance Association, Part's case. Law Rep. lOEq. 622. 80. — An arrangement for the transfer of the business of company A to company B, under which holders of shares in A company were to pay a premium on taking up their shares in B com- pany, and were also to have the nominal value of and their liabilities upon their shares increased, was held to be invalid either as an amalgamation or a sale. Imperial Bank of China, India, and Ja^an, v. Bank of Hindtistan, China, and Japan, Law Eep. 6 Eq. 91. (l) Amalgamation. 81. — The Imperial Bank of China, India, and Japan, Limited, which had never transacted any business, passed a resolution to carry into effect an arrangement with the Bank of Hindustan, whereby shareholders in the Imperial Bank were to become shareholders in the Hindustan Bank upon certain terms, and the assets of the Imperial Bank were to be transferred to the Hindustan Bank. It was also resolved that the Imperial Bank would be wound up voluntarily, and liquidators were appointed. A petition was afterwards presented for a com- pulsory winding-up of the Imperial Bank by some shareholders who dissented from the arrangement, and who, it had been held, were not bound to be- come shareholders in the Hindustan Bank. The Court ordered that the petition should stand over, liberty being given to the petitioners to'-take pro- ceedings, and to use the name of the Imperial -Bank or the oiEcial liquidators for the purpose of setting aside the amalgamation, the Court being of opinion that the resolutions for the voluntary winding-up and for the amalgamation were parts of the same transaction, and that if the amalga- mation were set aside, the petitioners would have a sufficient case for a compulsory winding-up. In re The Imperial Bank of China, India, and Japan, 35 Law J. Eep. (n.s.) Chanc. 445 ; Law Eep. 1 Chanc. 339. 83. — K power given to the directors of a company, by its articles of association, to amalga- mate with any other company, does not enable them to compel the shareholders to accept shares in the new company. In re the Empire Assurance Corporation, Limited. Bagshawe and Wiggles- worth's case, 36 Law J. Rep. (n.s.) Chane. 663 ; Law Eep. 4 Eq. 431. Semble — It does empower them to transfer the assets of the old company to the new company. ' IWd. 84. — D was a shareholder in a company having power to subscribe for or take shares in, to enter into treaty, act or unite with, buy up or absorb, any other company having the like objects, and to sell or transfer its business and property to any other company or individuals. The company agreed that it would amalgamate with another, and that, to facilitate the amalgamation, it should be wound up voluntarily, and the business and assets be merged in the amalgamated company, which was to be governed by articles of its own. A resolution was also passed that the shareholders in the original company were to take shares in the amalgamated one, in exchange for those which they previously lield. D never in any way as- sented to the amalgamation or accepted the new shares :^Held, that he was not a partner or shareholder in the amalgamated company. In re the London, Bombay and Mediterranean Bank, Limited. Dreij^s case, 36 Law J. Eep. (n.s.) Chane. 785. After a resolution has been come to by a com- pany for a voluntary winding-up, it exists as a company for the mere purpose of being beneficially wound up. Ibid. 85. — Two companies amalgamated, and N, a shareholder in the original company, agreed to take shares in the amalgamated one, in lieu of those which he had held in the other. There was no evidence of the assent of the majority of the shareholders' in the original company to the ex- change of the shares ; and when it was subse- quently ordered to be wound up, N was placed on the list of contributories to it: — Held, tha't he was a contributory ; and must be retained upon the list. In re the National Financial Company, Limited. Nash's case, 36 Law J. Eep. (n.s.) Chanc. 811. 86. — Bank and Corporation E, both limited companies, mutually agreed to amalgamate on certain terms, 25,000 shares in Bank 0, to be taken by the shareholders in Corporation F, in lieu of 75,000 of their shares, and Corporation F to be wound up. A, a shareholder in Corporation F, agreed to the proposed amalgamation, and in answer to a circular from the liquidators of Corpo- ration F, A returned them his share certificates for the liquidation, to exchange them for shares in Bank 0. The shares were allotted to A in Bank 0, and the certificates delivered to the liquidators, and A's name was placed on the register of Bank ; but no notice of the a.llotment was given to A, and no dividend was paid to him. The ar- rangement for amalgamation was declared to be void. Bank was ordered to be wound up : — Held, that A was not a contributory, that there was no completed contract to take shares in Bank 0, as what had taken place was only a part of the amalgamation scheme which liad dropped through. In re Oriental Commercial Bank. Alabaster's case, 38 Law J. Eep. (n.s.) Chanc. 32 ;,Law Eep. 7 Eq. 273. 87. — An amalgamation between two companies having been declared void as infringing the articles of association of one of them, an allotment of shares in that one company to directors of the 120 COMPANY (C), (D). other consequent upon the amalgamation was an- nulled, and on the winding-up of the company the name of the director was ordered to be removed from the list of contributories, although he had attended meetings and acted as one of the di- rectors of the amalgamated companies. In re London and Northern Assurance Association, Stace's and Worth's cases, Law Eep. 4 Chano. App. 682. 88. — The ordinary rule, that where a new firm succeeds to the business of an old one, slight circumstances may be sufficient to evidence an ac- ceptance by a creditor of the new firm to be bis debtors in place of the old firm, does not apply where there has once been an express repudiation of the new firm as debtors. Order of the M.E. reversed. In re Smith, Knight ^ Co. Ex parte Gibson, L. J. J., 38 Law J. Eep. (n.s.) Chanc. 673 ; Law Eep. 4 Chanc. 662. 89.— The deed of settlement of the T Life Assurance Company provided that the company might be dissolved by resolutions of the share- holders ; that on such dissolution the claims and demands of the company arising from assurances, &c., should be paid by the company, or undertaken to be paid by another assurance company to which the T Co. might transfer its property ; and until the said claims were so " satisfied and provided for," the duties of the directors and the share- holders to make calls, hold meetings, &e., should continue; In pursuance of these provisions the T Co. was dissolved, and its business and liabili- ties were transferred to the A Co. Circulars an- nouncing the " amalgamation " of the T Co. with the A Co. were issued to the policy-holders in the T Co. Thirteen years after this amalgamation the A Co. fell into difficulties, and was wound up. The assignee of a policy-holder in the T Co. then presented a petition to have that company wound up. The policy was expressed to be subject to the provisions of the company's deed of settle- ment, and to the premiums being paid to the T Co. After the amalgamation of the two compa- nies, the policy-holder and the petitioner had paid the premiums on the policies to the A Co., and the former had received a bonus thereon from the A Co. : — Held, (affirming the decision of James, V. C, 39 Law J. Eep. (n.s.) Chanc. 297 ; Law Eep. 9 Eq. 382) that this case was different from that of the I'amily Endowment Company (see next case) and that there was here a compete novatio with the A Co., and the petition for wind- ing-up must be dismissed with costs. In re The Times Life Assurance and Guarantee Company. Ex parte Nunneley, 39 Law J. Eep. (n.s.) Chano. 627 ; Law Eep. 5 Chanc. 381. The Court- will not give costs to a shareholder who appears upon a winding-up petition, the company being the proper parties to argue the case. Ibid. 90. — Although slight evidence is sufficient in the ease of ordinary firms to shew that a creditor who continues his dealings with incoming part- ners accepts the new firm as his debtors instead of the old firm, yet strict proof will be required before it is held that a creditor of a company under a special contract has accepted the liability of another company with which the first is amal- gamated. In re the Family Endowment Society, 39 Law J. Eep. (n.s.) Chanc. 306 ; Law Eep. 5 Chanc. 118. 91. — The policies of the M Assurance Co. re- ferred to the company's deed of settlement, by which provision was made for the dissolution of the company. In 1862 the M Co. transferred its business to the W Co. Until 1865 premiums on the M Co.'s policies were paid at the same office as before, and receipts were given referring to the union of the two companies, but not suggesting the dissolution of the M Co. or the transfer of its business. In 1865 the W Co. was amalgamated with the A Co., and after that year the premiums were paid- at the office, of the A Co., and the receipts were headed with that company's name alone. A Co. was wound up by the Court in 1869 : — Held, that under these circumstances a policy-holder in the M Co. was not fixed with notice of the transfer of that company's business to the W Co., and that since he after such trans^ fer retained his right against the M Co., he was not affected by anything subsequently done be- tween the W Co., and the A Co., and accordingly the right of his representatives against the M Co. remained intact. [Affirmed, on appeal, Law Eep. 5 Chanc. 640.] In re The Manchester and London Life Assurance and Loan Association. Ex parte Fike; ex parte Thompson, 39 Law J. Eep. (n.s.) Chanc. 595 ; Law Eep. 9 Eq. 643. Held, also, there must be real substantial ser- vice of every petition for winding up a company, and service on a workman employed upon the site of the building where eight years previously the company had its place of business, was insufficient. Ibid. 92. — Where the holder of a life policy with profits in an insurance company, having received notice of the amalgamation of such company with the A insurance company, three years afterwards accepted a sum of money as bonus from the A company : — Held, that there -had been a novation of contract with the A company, and that the re- presentatives of the policy-holders could not obtain an order to wind up the original company. The fact that the receipts for premiums by the A -com- pany bore upon them the name of the original company was held to make no difference. In re Anchor Assurance Company, Law Eep. 5 Chanc. 632. (D) Shaeeholdees : eepeesentative suits by. 1. — A shareholder cannot file a bill on behalf of himself and all other shareholders seeking par- ticular relief on his own behalf and also general relief on behalf of the other shareholders. Hal- lows V. Fernie, 36 Law J. Eep. (n.s.) Chanc. 267 ; Law Eep. 3 Chanc. 467. Distinction between a misrepresentation in a prospectus issued before, and one issued after the registration of the memorandum and articles of association. Ibid. A prospectus contained a statement that cer- tain persons, who had agreed to act as such. COMPAKY (D), (E). 121 were directors of a company, but such persons in fact refused to act before the allotment of the plaintiff's shares : — Held, that this was not a fraudulent misrepresentation affording ground for relief. Ibid. A prospectus issued after registration of the articles of association of a company, stated that the company would commence operations with ships of a certain class and number : — Held, that inasmuch as the applicant must be taken to have known that, under the articles, the directors had power to deal as they pleased with reference to the starting or non-starting of the company, he was not entitled to relief on bill filed against the directors and the company for indemnity in respect of his shares, but the bill as to this was dismissed, without costs. Ibid. Semble — ^The majority of the original subscrib- ers to the memorandum of association may nominate directors without holding a meeting to appoint such directors. Ibid. 2. — A suit against a company and one of its directors, impeaching dealings by them with its funds, was commenced by the plaintiff on behalf of himself and all other shareholders. The plaintiff was a holder of shares to a very small value, which he admitted that he had purchased with the sole view of qualifying himself to insti- tute these proceedings. Shortly after the com- mencement of the suit resolutions were passed at a meeting of the company for its voluntary winding-up, and its assets were sold to a new jompany. Answers being put in and excepted to, md the exceptions ripe for hearing, a motion, by bhe defendants, to stay proceedings or take the bill off the file, on the ground of the plain- tiff's admitted object in becoming a shareholder, jf the insignificant value of his interest, and of the winding-up of the company, was refused by Slalins, V.C., and, on appeal, by the Lords Justices. Held, by Malins, V.C, that the suit was a mockery and an imposition on the Court, of which ;he record ought to be purged at the earliest possible moment ; but that, for want of a prece- ient, he could not accede to the application. Held, by the Lords Justices, that, the suit being jn behalf of all shareholders, the value of the iggregate interest, and not of the individual nterest, must be regarded ; and that, the volun- ary winding-up having begun after the com- nencement of the suit, and the bill, in substance, mpeaching the proceedings with reference to t, and charging fraud, the plaintiff was entitled » have the merits tried at the hearing, and that le had not disqualified himself therefrom by his sonduct, however repreliensible, in becoming a ihareholder. Seaion v. Grant, 36 Law J. Kep. N.s.) Chanc. 638 ; Law Eep. 2 Chanc. 459. 3. — A trading partnership formed in 1825, and ionsisting of more than fifty members, was for- nally registered under the 58th sect, of the 7 & 8 l''ict. e. 110, but was never completely registered mder that or any subsequent Joint-Stock Com- janies Act: — Held, that the partnership could not iue in its corporate capacity, but that individual nembers were not disabled from suing on behalf Digest, 1865-70. of themselves and the others. Womeraley v. Marntt, 37 Law J. Eep. (n.s.) Chanc. 19; Law Eep. 4 Eq. 695. The registration of existing companies has never been compulsory, except for the short period during which the 4th sect, of the 19 & 20 Vict. c. 47 was in force. Ibid. The effect of the registration clauses in the several Joint-Stock Companies Acts of 1844, 1856, 1857, and 1862 considered. Ibid. 4. — ^M, being the owner of certain mines worth to his knowledge not more than 4,000?., agrees with W to promote a company to purchase the mines at 7,000?., of which W should receive 3,000?... The company is formed ; M and W are parties to a prospectus in which these facts are fraudulently concealed, and they in their capacity of directors, by the like fraudulent concealment, induce the company to complete the purchase. A majority of, the shareholders refused to take steps to get the contract set aside, but such majority was due to the votes of M in respect of shares allotted to him as consideration for the purchase : — Held, ,that a bill would lie by one of the shareholders, on behalf of himself and the other shareholders, except the defendants ; and a decree was made cancelling the agreement, with a declaration that the company ought to be wound up. Atwool v.. Merryweatker, 37 Law J. Eep. (n. s.) Chanc. 36. 5. — Courts of Equity have an original juris- diction to grant relief at the suit of members of a corporation which is extinct, or whose powers have expired, against the managers or directors of the corporation, on a bill'praying for an account and for distribution of the property of the corporation. This jurisdiction is not, in the ease of a railway , company, taken away by the Companies Act, 1862, the Eailway Abandonment Act, 1850, or the Eailway Companies Act, 1867. Cramer t. Bird, 37 Law J. Eep. (n.s.) Chanc. 835 ; Law Eep. 6 Eq. 143. Where a company consists of members entitled to share pari passu, such a bill may be filed by. one member on behalf of all (except the directors) against the directors ; but where the members of the company are comprised in different classes, each class must be represented among the actual parties to the suit. Ibid. 6. — An order for leave to file a bill against a company in liquidation may be made as an ex parte motion. Williams v. 'The Bristol Marine In- surance Company,Z9 Law J. Eep. (n.s.) Chanc. 504. (E) CONTBIB0XOEIES. (ffl) Allottees. (1) Persons who have signed the memorandim, oj articles of association. 1, — C signed the articles of association of a joint-stock company for one share, his name appearing thereon as a director. The qualification for a director was twenty-five shares, he attended meetings as a director and he applied for twenty- five shares, biit before they were allotted he resigned his directorship, and no allotment was made to him : — Held, on winding up, that he was E 1-22 COMPANY (E). only a contributory for one share. In re General International Agency Company, Chapman's case, Law Bep. 2 Eq. 667. ' 2. — A person signed the memorandum of association in respect of ten shares, and was one of the original provisional directors. He was never treated as a shareholder, and retired from the direction when the permanent directors were appointed. No shares were, in fact, allotted to him ; all the shares were, however, not allotted when the company was ordered to be wound up : ^-Held, that he was rightly placed upon the list of contributories, in accordance with the 23rd Beet, of the Companies Act, 1862. In re The London, Hamburgh and Continental Exchange Bank, lAmited, Evans's case, 36 Law J. Eep. (n.s.) Chanc. 601 ; Law Eep. 2 Chanc. 427. 3. — ^A person signed the memorandum of asso- ciation of a company in respect of five shares ; eight months afterwards, five fully paid-up shares, which belonged to the promoter, were allotted to him : — Held, that this did not satisfy his contract •under sect. 23 of the Companies Act, 1862, to take five shares, and he was placed on the list of con- tributories with respect to five shares on which nothing was paid up. In re The South Blackpool Hotel Compawy, Limited, ex parte Migotti, 36 Law J. Eep. (n.s.) Chanc. 51; Law Eep. 6 Eq. 238. 4. — ^Where a person signed the memorandum of association for 40 shares in a projected company, and was afterwards allotted 150 fully paid-up shares in payment of services rendered, and he was registered only in respect of the 150 shares : — Held, in the winding-up, that he was liable as a con- tributory for the 40 shares, there being nothing to show that the 40 shares were to form part of the 150. In re The London and County Coal Co., Law Eep. 3 Eq. 355. 5. — The special Act incorporating a railway company provided that the company should not issue any shares created under the authority of the Act, nor should any share vest in the person accepting the same until one-fifth of the amount of the share was paid up : — Held, that this pro- vision was intended for the protection of the public, to prevent the issue and vesting of shares so as to enable them to be bought and sold in the market, and that the payment of one-fifth of the amount due on a share was not a condition precedent to the liability of the holder thereof for calls. The East Gloucestershire Sailway Company v. Bartho- lomew. Same v. Price. Same v. Smith, 37 Law J. Eep. (n.s.) Ex. 17 ; Law Eep. 3 Ex. 15. Held, also, that the 8th sect, of the Companies Clauses Act, 1845, which enacts that "every person shall be deemed a shareholder who shall have subscribed the contract of the company, and whose name shall have been entered in the register of shareholders hereinafter mentioned," and sect. 9, which directs that the register shall distinguish each share by its number, were substantially satis- fied by a shareholder's name being entered in the register without the distinguishing numbers of his shares, it being sliewn by other evidence that the shares held by him were actually distinguished by particular numbers. Ibid. The Wolverhampton Waterworks Compmy v,, Hawkesford, 7 Com. B. Eep. N.S. 796 ; 29 Law J. Eep. (n.s.) C. P, 121: and The Irish Peat Company v. PhUlips, 1 Best & S. 698, 629 ; 30 Law J. Eep. (n.s.) Q.B. 114, 363, distinguished. Ibid. 6. — ^N, a member of a firm, signed the memor- andum of association of a limited company for 100 shares. Under an understanding between himself and the promoters, 58 of the 100 shares were allotted to the two remaining members of N's firm, and only 42 to himself ; and calls were paid by N only on 42 shares. On the winding-up of the company : — Held, in afSrmation of the Master of the EoUs, 37 Law J.SRep. (n.s.) Chanc. 470, thatN i[iust be placed on the list of contributories for the whole 100 shares ; but, in reversal of the Master of the Bolls, that the 58 allotted to his partners must be reckoned as part of the 100, and their , names be removed from the register in respect of these. In re Mason's Hall Tavern Co. Ex parte Nokes, 37 Law J. Eep. (n.s.) Chanc. 624. 7. — P subscribed the memora,ndum of associai tion for 1,350 shares of the company. He shortly after the incorporation of the company sold pro- perty to the company in consideration of 1,360 fully paid-up shares ; the agreement for which sale had been adopted by the articles of association. The sale had not been impeached : — Held, re-= versing, the decision of the Master of the EoUs, 38 Law J. Eep. (n.s.) Chanc. 564 ; Law Eep. 5 Chanc. 11, that the acceptance of the paid-up shares was a sufficient compliance with the obli- gation arising from his subscription of the memo- randum, and that he could not be put upon the list of contributories. In re Heyford Company, PelVs case, 39 Law J. Eep. (n.s.) Chanc. 120; Law Eep. 6 Chanc. 11. 8. — Where there is a power in the articles of association of a company to cancel shares, can- cellation may take place before the name has been entered on the register ; and the 23rd sect, of the Companies Act, 1862, does not apply to this case. In re Natal Investment Co., Snell's case, Law Eep. 5 Chanc. App. 22 [but see next case], 9. — H, a director of a company, subscribed tho memorandum of association for 600 shares, of which 250 were never allotted to him. The ar- ticles of the company, after a series of clauses re- lating to the forfeiture of shares, empowered the directors to accept from any member the surrender and forfeiture of any shares, but they also in terms prohibited the purchasing or dealing in any shares. Subsequently by a deed, approved of at a general meeting to which the seal of the company was attached, H was released by the company from his liability to take the 250 unallotted shares, and in- demnified against all liability. The company was afterwards wound up : — Held, affirming the de- cision of the Master of the Eolls, Law Eep. 7 Eq. 76, that the release was invalid, and that H was a contributory for the 250 shares. In re United Service Company, Hall's case, 39 Law J. Eep. (n.s.) 730 ; Law Eep. 5 Chanc. 707. Snell's case. Law Eep. 6 Chanc. 22 (see last case), distinguished. Ibid (and see 11 infra). COMPANY (E). I2B (2) Persons ittlto have applied for shares, (i) Applicaiion withdrawn. 10. — After allotment of shares to an applicant, the directors may alter or annul the allotment, and the applicant may withdraw his application, until the allotment has been communicated to the appli- cant. NationcU Savings Bank Association, ex parte Hebb, 36 Law J. Eep. (n.s.) Chanc. 748; Law Eep. 4 Eq. 9. Conditional contract to take shares, [See infra (E) 170-1.] (ii) Where no notice ofallotmeni. 11, — Circumstances under which knowledge of an entry in the minute-hook wiU not he imputed to a director. In re the Llanharry Hematite Iron Ore Company, Limited, ex parte Tothill, 35 Law J. Eep. (n.s.) Chanc. 120 ; Law Eep. 1 Chanc. 85. A, one of the directors nominated in the articles of association of a mining company, signed the memorandum of association for 25 shares, and subsequently made an application in writing for shares, accompanied by payment of the deposit on 60 shares. No formal allotment was ever made to him. But the minute-book contained a resolution, stated to have been passed at a meeting of directors, at which A had not been present, for commencing mining operations, " seeing that 660 shares are subscribed for as follows," — and in the appended list A was entered as a subscriber for SO shares. The rough minutes of the meeting differed from the entry in the minute-book in con- taining no list, or reference to a list of subscribers. A attended the next meeting ; but there was no clear eyidence that the minute-book then contained the entry, nor any evidence that any minutes of the preceding meeting were read, or that any re- ference was made to that meeting ; and A made an af&davit denying that any such reference was made, and denying ail knowledge of the resolution, and denying that he had ever received notice of any allotment of shares to him. The Master of the EoUs held, that an allotment of the whole 60 shares had been made to A, and that he knew, or must as a director be presumed to have known of it. But, on appeal, held, by the Lords Justices, ■that there was no binding agreement between the company and A for A's becoming the holder of 60 shares, and they reduced bis liability to the 26 shares for which he had signed the memor- andum of association. Ibid. 12. — H applied for an allotment of shares in a joint-stock company ; the allotment was made and entered in the allotment book, and the letter of allotment forwarded to the company's agent to be delivered to H, but before it was deUvered H withdrew his application and demanded a return of his deposit, which vras ultimately returned to him : — Held, on winding-up, that H never became a shareholder, as the contract was not complete. Distinction between this case and Dwnlop v. Higgini, 1 H. L. Cases, 381. In re National Sav- ings Bank Association, Hebb's case. Law Eep. i Eq. ». 13.— L applied for shares in a company ex- pressly as trustee for M, stating that he would sign tlie articles when required, and that his name might be inserted in the register ; the deposit was paid by M ; L received no letter of allotment, but the shares were allotted to him, and his name was on the register for two years. (His name also appeared as a director, and he had received a fee for attendance.) On winding up : — Held, that L was a contributory. In re International Contract Company, Levita's case, Law Eep. 3 Chanc. 36. 14. — §«iwe-Whether, where a complete contract has been entered into between directors of a com- pany and a third person to take shares in the company, the directors can release the party from his contract before allotment. But held, that where the agreement to take shares formed only a part of an agreement, touching the becoming agent to the company, the directors had power to agree to vary the agreement inter alia, so as to render the agreement to take shares conditional. The register rectified, the condition not having happened, and an allotment only, without notice, having taken place before the winding-up. In re Anglo-Banish and Baltic Steam Navigation Com- pany, Sahlgreen and Carroll's case. Law Eep. 3 Chanc. 323. 15. — A applied for shares in November, 1865, and paid a deposit. The books of the company shewed that the directors had allotted shares to him, and he was entered on the register ; but he never received notice of allotment nor was re- quired to pay any sum beyond the deposit. The company was ordered to be wound up in June, 1867. A had never demanded repayment of the deposit. An order of Stuart, V.C., 36 Law J. Eep. (n.s.) Chanc. 800, for the removal of A's name from the list of contributories affirmed by Eolt, L.J. In re The Universal Banking Cor- poration, ex parte Gunn, 37 Law J. Eep. (n.s.) Chanc. 40 ; Law Eep. 3 Chanc. 40. Acceptance by the company, whether in writing or in words or by conduct, is necessary in order to make an offer to take shares binding on the applicant. Ibid. 16. — F, with a view of qualifying himself as a director of a company, applied for shares in it simpliciter, without annexing any condition to his application, and paid the deposit money upon such shares. At a board meeting, at which he was present, a resolution was passed " that the shares in the company now applied for be allotted and letters of allotment issued forthwith ; " and he afterwards attended meetings of the board as a director. . Subsequently, upon his request, the directors cancelled the allotment to him, and repaid to him his deposit. There was no evidence of there ever having been any express notice to him of the allotment : — Held, that the contract was complete and binding, and the directors had no power to i ancel the allotment. In re Saloon Steam Packet Company, ex parte Fletcher, 37 Lsvr J. Eep. (n.s.) Chanc. 49. Three things are required to establish a cOUl-' plete contract to take shares : first, application fpD' shares ;- secondly, allotment ;• thirdly, that the n2 124 COMPANY (E). allotment should be communicated to and ac- quiesced in by the shareholder. Ibid. 17, — Whether an allotment of shares after the formation of a company, in pursuance of an application to the promoters before the formation will on being communicated to the applicant constitute an agreement, quaere. But at all events the shares must be allotted within a reasonable time after the application, or the applicant, even after notice of the allotment, may refuse to accept them. In re Bowron, Baily and Co., Limited, Bai!i/s case, 37 Law J. Kep. (n.s.) Chanc. 670 ; Law Kep. 3 Chanc. 592. What is a reasonable time must be determined with reference to the circumstances of each case. Ibid. Decision of Wood, V. C, 37 Law J. Efep. (n.s.) Chanc. 265, affirmed. Ibid. 18. — Shares in a joint-stock company were allotted to L on a representation made by H that he was an applicant for them. L afterwards, at the request of H, signed a letter of application for the shares, and sent it to H, who had received the letter of allotment and paid the allotment money. L never received notice of the allotment or the share certificates, or paid anything in respect of the shares, and a dividend which became payable upon them was carried to H's credit in the books of the company. Upon the winding-up of the company, L's name was placed upon the list of con- tributories, and one of the "Vice Chancellors re- fused to remove it : — Held, on appeal, that L had constituted H his agent to accept the shares', and the decision, of the Vice Chancellor must be affirmed. In re The International Contract Com- pany, G. H. Levita's case, 39 Law J. Eep. (n.s.) Chanc. 673 ; Law Rep. 5 Chanc. 489. 19. — Where shares in a joint-stock company are applied for, they must be allotted by the directors within a reasonable time, otherwise the applicant may refuse to receive them, and may recover back the deposit paid on application. The Eamsgate Victoria Hotel Company, Limited, V. Montejiore. The same v. Goldsmid. Montefiore T. The Eamsgate Victoria Hotel Company, Limited, 85 Law J. Eep. (n.s.) Ex. 90 ; 4 Hurl. & C. 164 ; Law Kep. 1 Ex. 109. Where shares were applied for on June 8 and allotted on November 23 : — Held, that this was not an allotment within a reasonable time. Ibid. 20. — A shareholder in a company cannot repu- diate his shares after the presentation of a petition upon which a winding-up order is made ; and it is immaterial whether such petition has been pre- sented by a shareholder or a creditor. Kent v. The Freehold Land and Brickmaking Company, Limited, 37 Law J. Kep. (n.s.) Chanc. 653 ; Law Eep. 3 Chanc. 493. 21. — C, as nominee of a joint-stock company B, applied for shares in another company A, on the understanding that company B v ou cl indem- nify him. Notice of allotment by c impany A was sent to company B, and not to C, and the allotment money and deposit were paid by com- ■ pany B. Afterwards C executed a transfer in Wank in which the shares were described as fully paid up, though in fact they were not : — Held, that (the company being wound up), C might have repudiated the shares as notice of allotment was not sent to him ; but that by executing the trans- fer he had accepted the shares and was rightly placed on the list of contributories in respect of the shares alloted to him, less the amount actually paid up. Peruvian Bailways Company, Crawley's case. Law Rep. 4 Chanc. 322. 22.— R, under similar circumstances to those stated in the last case, applied for shares in com- pany A, and notice of allotment was sent to com- pany B, but E paid the allotment money by his own cheque, the money being found by company B : — Held, that there was no binding contract be- tween company A and E. Bobinson's case, Law Kep. 4 Chanc. 322. 23. — P made application for shares in a com- pany, in a form which bound him to pay il. on allotment. Shares were then allotted to him by a letter requiring him to pay 51. per share within nine days, within which time P wrote to repudiate the shares — -Held, that the application and the letter constituted a complete and not conditional contract, and that the repudiation was ineffectual, and that P, whose name was on the register at the winding-up order, was a contributory. In re Aber- aman Iron Works, Peeifscase, Law Rep. 4 Chanc. 632. 24. — P made an application for 10 shares in a company in the usual form, undertaking to accept the shares, and authorising the directors to place his name upon the register of members. He also paid 101,, the deposit required by the prospectus. The secretary, on the 4th of August, wrote to him, saying that the directors allotted the 10 shares on his paying, on or before the 1 1th instant, the sum of 20/., the amount required by the prospectus to be paid on allotment. On the 10th of August, P having ascertained facts which led him to doubt the prospective success of the company, repudiated the shares, and required repayment of the IQl. The secretary afterwards wrote, promising further in- formation, but P never retracted his repudiation of the shares. His name appeared in the register of members, but no satisfactory evidence was pro- duced as to when it was placed there :^Held, that on the company being wound up, his name ought not to be placed on the list of contribu- tories. In re Warren's Blacking Company, Pente- lom's case, 39 Law J. Rep. (n.s.) Chanc. 8 j Law Kep. 4 Chanc. 178. (iv) Alteration in amount of shares. 25. — The prospectus and memorandum of asso- ciation of a limited company stated that the capital of the company was divided into shares of 20/. each, and that the first issue would be of 20/. shares. The memorandum and articles of association contained a provision for consolidating the 20/. shares into shares of larger amount. Upon the faith of the prospectus and memorandum of association, Or ap- plied for twenty-five shares in the company. Sub- sequently to his application, in pxirsuance of the provisions in that behalf, all the shares of the company, before any of them had been issued, COMPANY (E). 125 were converted from 202. shares to iOl. shares. Twenty 402. shares were allotted to G. He was not aware of the alteration in the amount of the shares till some time afterwards, and never acqui- esced in the alteration. On a summons by the official liquidator of the company for G to shew cause why he should not be settled upon the list of contributories : — Held, that G was a contribu- tory to the company in respect of twenty shares of 201. each, In re ikropean Central Bailway Com- pany, Ghistard's case, 38 Law J. Bep. (n.s.) Chanc. 610 ; Law Eep. 8 Eq. 438. Upon G's counsel admitting that he was primA facie a shareholder in the company : — Held, that he had a right to begin on a summons in the form above mentioned. Ibid. (v) Scripholder. 26. — The directors of a company had power, instead of entering the name of an applicant for shares on the register of members, to issue to him provisional scrip certificates, which were transfer- able by simple delivery, were to receive dividends, were subject to the payment of instalments as mentioned in the certificate, and were exchange- able for shares on certain terms. The articles pro- vided that the word " shareholder " should include scripholders as well as members. applied for 100 shares in the company, which were allotted to him. He was entered on the register of members in respect of ten shares, and received provisional scrip certificates for the other ninety. He parted with these certificates before the winding-up of the company : — Held, that could be placed on the list of contributories only for the ten shares in respect of which he was entered on the register of members. The lAUlchampton, Havre, and Hon- fleur Steamship Company, Ormerod's case, 37 Law J. Eep. (n.s.) Chanc. Ill; Law Eep. 5 Eq. 110. [See also (E) 38 and 22.] (vi) Infants. 27. — A company, in which an infant was a registered shareholder, was ordered to be wound up in Eebruary, 1865. The infant came of age in August, 1865. In March, 1867, the list of con- tributories was filed, on which the infant's name appeared ; in February, 1868, she was served with an order for a call : — Held, she was not barred by acquiescence from now obtaining the removal of her name from the list. In re Alexandra Park Company, Harts case. Law Eep. 6 Eq. 612. 28.— An infant applied for shares which were allotted to him, but he never paid any deposit or other money in respect of them. He took no steps to repudiate the shares till fourteen months after ■ he came of age, when the company was ordered to be wound up : — Held, affirming the decision of the Master of the EoUs, 39 Law J. Eep. (n.s.) Chanc. 168, that he could not now repudiate the shares, and that his name must be placed on the list of contributories. In re the Constantinople and Alex- andria Hotels Company, ex parte Ebhetts, 39 Law J. Eep. (n.s.) Chanc. 679; 35 Beav. 349; Law Eep.' 6 Chanc. 302. (vii) Unauthorised issue. 29. — An allottee of shares of an unauthorised issue held to be a contributory, the company hav- ing subsequently, at a general meeting, according to their powers in the articles of association, sanc- tioned such issue, the allottee having attended such meeting by proxy and having acquiesced therein by subsequent acts. In re New Zealand Banking Corporation, Sewell's case, Law Eep. 3 Chanc. 131. (viii) WTtere deposit required. 30. — The prospectus of a company contained the following announcement: — " Deposit 10s. per share on application, and 30s. on allotment. De- posit returned if no allotment made." Deposits paid in, but no allotment, and no return. On de- murrer by creditors to a bill by persons who had paid deposits, praying that creditors might be restrained from attaching the deposits : — Held, allowing the demurrer, that there was no trust or lien on the deposits, but that the relation of debtor and creditor was alone created between the depositors and the directors. Moseley v. Cressty's London and Burton Steam Cooperage Co., 35 Law J. Eep. (n.s.) Chanc. 360 ; Law Eep. 1 Eq. 406. (i) Fully paid-up shares. 31. — On the formation of a limited company for the purchasing, selling, and cutting of cork by improved machinery, it was verbally agreed to give the patentee of the new machinery 980 paid- up shares in purchase of the patent. The deed assigning the patent to the trustees of the com- pany stated the consideration as 10s. ; the certifi- cates were delivered, but it was not stated in the books what the consideration was, but only that they were paid up : — Held, that the holder of the shares was not precluded by the expressed nomi- nal consideration in the deed from shewing the real consideration for the shares, and that even in favour of creditors the holder of such shares was not liable as contributory. In re British and Foreign Cork Co., Lief child's case, Law Eep. 1 Eq. 231. 32. — ^Patentees (D and G) agreed to sell their patent, to a company for 600 fully paid-up shares, and 1,700 partly paid-up shares in the company, and a sum of cash to be paid rateably when a cer- tain sum should be received on shares, and then the patent was to be assigned ; and if this sum should not be paid within two years, the agree- ment should be void, and the money and shares which should have been paid to the patentees should be forfeited, as liquidated damages for breach of the agreement. The shares were trans- ferred to D and G, or their nominees, but none of the cash was paid, and the company was ordered to be wound up before the two years had expired : — Held, that D and G should be placed on the list of contributories, but that they were entitled to a lien on the patent for the unpaid purchase-money. In re Patent Carriage Co., Gore and Durants case, Law Eep. 2 Eq. 349. 33.- A holder of fully paid-up shares in a com- pany with limited liability is a contributory w_ith- 126 COMPANY (E). in the meaning of the Companies Act, 1892. In re the Anglesea Collery Co., Limited, 36 Law J, Kep. (n.s.) fchanc. 809 ; Law Eep. 1 Chanc. 656. Liquidators have power, under section 133 (9) and (10), to make a call on shares not fully paid up, in order to reimburse holders of fully paid-up shares. Decree of "Wood, V.O., 36 Law J. Eep. (n.s.) Chanc. 646 ; Law Eep. 2 Eq. 379, affirmed, on appeal. Ibid. 34. — The Court has no power to put on the list of contributories of a company a holder of fully paid-up shares in the company, who is also a debtor to it, for the purpose of recovering the debt. In, re the Marlbornvgh Club Co., 37 Law J. Eep. (n.s.) Chanc. 296 ; Law Eep. 5 Eq. 366. 35. — B subscribed the memorandum of associa- tion of a company, in respect of preference shares and also paid-up shares : — Held, that he was liable to contribute only in respect of the prefer- ence shares. In re the Sonth of France Wine- Growing Districts Co., ex parte De Beville, 38 Law J. Eep. (n.s.) Chanc. 18 ; Law Eep. 7 Eq. 11. 36. — In January, 1866, A transferred the shares which he held in the above-named company to B, and in the month of February, 1866, the transfer was duly registered, nothing being then due upon the shares in respect of calls. Two calls were afterwards made upon B in respect of the shares. Neither of those calls was paid ; and on October 3, 1866, the shares were declared for- feited for non-payment of the calls. On October 24, 1866, an order was made for the voluntary winding-up of the company, which was afterwards continued under the supervision of the Court. A's name was placed on the list of contributories of the company as a past member of it. Upon a summons to remove his name from the list : — Held, that he was properly placed on the list as a past member of the company ; but the question whether his liability could he extended to the full amount unpaid on his shares, including calls after forfeiture was not determined ; and the summons was dismissed with costs. In re the Accidental and Marine Insurance Corporation, Ex parte Bridger arid two others, 38 Law J. Eep. (n.s.) ■ Chime. 201 ; Law Eep. 4 Chanc. 266. 37. — A subscriber to the memorandum of asso- ciation of a company under the Companies Act, 1862, for shares not expressed on the memoran- dum to be fully paid up, but agreed to be issued to such subscribers as fully paid-up shares in part payment of property transferred by him to the company: — Held, reversing the decision of the Master of the EoUs, 38 Law J. Eep. (n.s.) Chanc, 664; Law Eep. 6 Chanc, 11, not liable to be placed on the list of contributories for such shares. In re the Heyford Co., -Pell's case, 39 Law J. Eep. (n.s.) Chanc. 120 ; Law Eep. 6 Chanc. 11. 38.— Co. B sold its business to co. A, the con- sideration being the allotment of paid-up shares in CO. A. Certain of the shareholders in co. B ■ having accordingly subscribed the memorandum of association of co. A. and having received allot- ment of the shares so subscribed for : — Held, that the contract so made was satisfied by such allot- ment, the arrangement amounting in effect to the ' giving of money's worth for the shares allotted. In re China Steamships and Lahuan Co.,Drmnr movd's case. Law Eep. 4 Chanc. App. 772. 89. — If a person, by subscribing the memoran- dum of association, agrees to take shares in a company, and takes shares in the company belong- ing to some one else, he does not satisfy the con- tract he has entered into with the company. In re Heyford Co., Limited, Forbes and Judd's case, 39 Law J. Eep. (n.s.) Chanc. 422 ; Law Sep. ■6 Chane. 270. P agreed to sell his business to a company for 30,000?., to be paid in 1,500 fully paid-up shares. 1,350 shares only were allotted to him, and of the remaining 160, by his direction 50 were allotted to E, who had subscribed the memorandum of association for that number : — Held, that F's name must be piit on the list of tfontributories for 80 shares. Migotti^s case (E) 3, supra followed. Evans's case (K) 2, supra; a.Tii Srtommond^s case (E) 38, supra, explained. Ibid. 40. — A number of persons purchased half of a colliery for 10,000?. in different proportions, and soon afterwards they and the owner of the other half constituted themselves a company with limited liability. They respectively subscribed the memo- randum of association for such a number of shares as corresponded with their interests in the col- liery, valuing the whole at 20,000?. By the arti- cles they were to transfer the colliery to the com- pany, and to receive paid-up shares in the number mentioned in the memorandum. No other shares were allotted. The owner executed a declaration of trust of the colliery in favour of the company ; — Held, on the company being wound up, that these shareholders were not liable for any contri- butions. Be the Baglan Hall Collieries Co., Lim- ited, 39 Law J. Eep. (n.s.) Chanc. 691 ; Law Eep. 6 Chane. 346. (c) Fast members. 41. — Unpaid calls made upon shares afterwards forfeited are recoverable as a debt only. In re The Blakely Ordnance Company, Needhmris case, 36 Law J. Eep. (n.s.) Chane. 666 ; Law Eep. 4 Eq. 135. [See also No. 36 supra.] The list of persons who may be contributories as past members cannot be settled until the list of present members has been exhausted. Ibid. Qwisra— Whether owners of forfeited shares are at all liable as past members. Ibid. 42. — In the winding-up of a company a list of contributories, as past members should be settled as soon as conveniently may be, but not in such a manner as to determine any question as to the extent of the liability of such contributories re- spectively. In re Bamed's Banking Company, Andrew's case, 37 Law J. Eep. (n.s.) Chanc. 87 ; Law Eep. 3 Chanc. 161. Asa general rule, costs in contributories' cases ought to follow the result. Ibid. Where a company had been in existence less than a year when it was ordered to be wound up, and it was admitted that sufficient to pay the debts could not be obtained from the calls upon those contributories, who were such as present members an order of the Master of the Eolls, 36 Law J. COMPANY (E). 12{ Kep. (n.s.) Chane, 802 and Law Eep. 4 Eq. 458, iireoting a settlement of the list of past members IS contributories was affirmed, and the appeal iismissed with costs, the terms of the order not tieing such as to make it necessary in settling the list to determine the extent of the liability of the persons whose names were to be put on the list. Ibid. 43. — ^No past member of a company can be placed on the list of contributories under ss. 38. and 74. of the Companies Act, 1862, unless upon evidence, first, that there existed at the date of the winding-up some debt or liability of the com- pany contracted for before he- ceased to be a member; and, secondly, that the shares formerly held by- him would not be otherwise fully paid up. In re The Contract Corporation, Weston's case, 37 Law J. Kep. (n.s.) Chane. 617 ; Law Eep. 6 Eq. 17. 44. — Under section 38 of the Companies Act, 1862, a past member of a company is liable in its winding-up for debts of the company contracted prior to his having become a member, where the present holder of lie shares is unable to pay. In re Barneys Banking Company, Helbeirt's case, Law Bep. 6 Eq. 509. . 45. — Creditors whose debts were contracted before the period when a past member ceased to be a member have no priority of payment out of the contributions of such past member, when placed upon the list of contributories, but such contributions will simply fall into the general funds of the company, and be applicable to the payment of all debts as if contributed by a present member. In re Accidental Insurance Corporation, ex parte Briton Medical and General life Insur- ance Company, 39 Law J. Eep. (n.s) Chane. 585 ; Law Eep, 5 Chane. 428. (d) Set-off and equities between the company and its contributories. 46. — A shareholder in a limited liability com- pany, being also a creditor of the company to a larger amount than that remaining unpaid upon his shares, is not entitled to set off so much of his debt as is equal to the amount of calls which have been made upon but not paid by him, and to receive a dividend for the balance ; nor is he en- titled to have tlie dividend calculated upon the entire debt, and to be paid the balance of dividend after deducting the amount of the call; but he must first pay the call, and he will then be en- titled to a dividend pari passu with the other creditors who are not shareholders. In re Overend, Gumey ^ Co. Limited, ex parte Cfrissell, 35 Law J. Eep. (n.s.) Chane. 752 ; Law Eep. 1 Chane. 528. Difference in this respect between a member of a company with limited liability and a member of a company with unlimited liability. Ibid. 47. — ^An agreement between A, a tradesman, and the directors of a company, that the company should order goods of A, and A should take shares in the company, but that calls on the shares should be placed to A's debit as payment on "account of goods : — Held, by the Lords Justices, affirming a decision of Vice Chancellor Wood, to be ultra vires on the part of the directors, and not binding either on the company or on A. In re The Eioh- mond Hill Hotel Company, Limited, ex parte Pellatt, 36 Law J. Eep. (n.s,) Chane. 613; Law Eep. 2 Chane. 527. 48. — The liquidator of a company having sue4 J M S in respect of an alleged guarantee, failed to establish the claim. The costs of J M S having been taxed, execution was issued against the company. The company then claimed to set off the costs pro tanto, against the amount of some calls upon shares which were due from J M S : — Held, that the set-off could not be allowed, and the benefit of the execution was given to the attorneys of J M S. In re The Bank of Hin- dostan, China, and Japan, MackerUl Smith's case, 37 Law J. Eep. (n.s.) Chane. 185; Law Eep. S Chane. 125. 49. — The 101st section of the Companies Act, 1862, excludes the right of the contributory of a limited company to set off a debt due to him from the company against calls due by him to the com- pany, when the company is in process of winding- up, even if the calls were made before the com- mencement of the winding up. In re The Breech- loading Armowry Company, ex parte Calisher,S1 Law J. Eep. (n.s.) Chane. 208 ; Law Eep. 5 Eq.214. Semble — " Creditors " in that section must mean "creditors other than contributories of the com-; pany." Ibid. 50. — Set-off of debts due from a company to one of its directors against a call allowed, the transaction being carried out by mutual cheques, although at the time, the company was insolvent, and was ordered to be wound up a month after- wards, the insolvency not having been shewn to have been known to the directors ; but set off a debenture payable in future under discount not allowed. In re Mason's Hall Tavern Company, Habershon's case. Law Eep. 5 Eq. 286. 51. — 6 went to Australia as the agent of a company under an agreement by which he was to act as their agent for five years, at a fixed yearly salary, and was also to receive a commission on remittances. He was required to take 50 shares- in the company, and to pay up a portion of their value ; and it was agreed that the balance which might become due on account of calls should be placed to his debit in his accounts. After he had carried on business as such agent for little more than a year the company was wound up under supervision. For three quarters of a year more he was employed by the liquidators in the winding up, and was then discharged : — Held, that C was entitled tp his salary for five years, and that, having regard to the fact, that liquidators were indebted to him for Kis services rendered in the winding up, in a sum nearly as large as the amount due from him in respect of calls upon his shares, they woxild not be allowed to enfortfe against him any claim for such calls until the amount due from them to him had been ascer- tained. In re The London and Colonial Company, Limited, ex parte Clark, 38 Law J. Eep. (n.s.) Chane. 562 ; Law Eep. 7 Eq. 550. [And see infra (G) (e).] 128 COMPANY (E). (c) Cdls. 52. — In the course of winding up a company by the Court, the official liquidator being of opiuion that, out of claims made against the company to the extent of 850,000^., there would most probably be established debts to the extent of 400,000^., and there being no assets, the Court, acting upon the information and opinion of the official liquidator, sanctioned a call, which was estimated to produce about 180,000^., before the validity of the claims was established. In re the Contract Corporation, lAmited, ex parte Boyer ^ Co. and others, 36 Law J. Eep. (n.s.) Chanc. 69 ; Law Eep. 2 Chanc. 96. 53.- — The owner of partially paid-up shares in a limited company advanced to the company, pur- suant to a resolution come to at a special meeting of shareholders, a sum of 400?., which, if the com- pany could not go on, was to be considered as a payment of unpaid calls, but if the company was able to go on was to be considered as a loan, and be repaid with interest. At the time of this pay- ment a friendly petition for winding up the com- pany had been presented, and afterwards a winding-up order had been made upon it : — Held, that this payment could not be considered as a payment in anticipation of calls, as the transaction amounted to an " alteration of the status " of the shareholder after the commencementof thewinding- up. In re Oriental Commercial Bank, Barge's case, Law Eep. 5 Eq. 420. 54. — Where the articles of association of a company, registered under 25 & 26 Vict. c. 89, pro- vided, " In giise the whole of the shares into which the nominal capital of the company is divided shall not bfe subscribed for, or allotted, the regis- tered members of the company for the time b'eing shall, if the directors shall "by resolution so declare, be and continue associated for the objects thereof," &c. : — Held, that in such a case a formal resolution by the directors to the above effect is a condition precedent to their right to make a call for business debts ; and the fact of the directors making a call is not equivalent to such a resolution. North Staf- ford Steel, Iron, and Coal Company v. Ward, 37 Law J. Eep. (n.s.) Ex. 83 ; Law Eep. 3 Ex. 172. 65. — A call is owing from the day on which it is made, although it is " payable " on a subsequent day. In re the China Steamship aiid Labuan Coal Company, Limited, Dawe's case, 38 Law J. Eep. (n.s.) Chanc. 512 ; Law Eep. 6 Eq. 232. 56. — The plaintiff and the defendants were shareholders of a company which was being com- pulsorily wound up in the Court of Chancery under the Winding-up Acts, and the defendants had a claim as creditors against the company, which was disputed. Under these circumstances, and in order to give the defendants time to buy up the claims of other creditors, an agreement was made between the plaintiff and the defendants by which, in con- sideration that the plaintiff would use his best endeavours to support the defendants in postponing the making of a call by the liquidators of the company, and in getting the defendants' claim sustained, the defendants promised to indemnify the plaintiff against any call which might be made on him in respect of his shares in the company. In an action for breach of such promise, the de- fendants pleaded that the agreement was made without the knowledge of the Court having juris- diction in the" winding-up, the liquidators, the other shareholders, or creditors of the company, and that it was made with the object and intent, on the part of the plaintiff and the defendants, of enabhng the latter to obtain a postponement of the call, and the payment of dividends upon the whole of their claim, to the prejudice of the other share- holders and creditors : — Held, a good defence, as such an agreement was illegal, being contrary to the policy of the Winding-up Acts. Mliot v. Richardson and others, 39 Law J. Eep. (n.s.) C. P,. 340 ; Law Eep. 5 C. P. 744. Setable — Per Willes, J., that the agreement to assist the defendants in sustaining their claim, if the plaintiff believed it was not due, was bad on the ground of maintenance. Ibid. 57. — Service of notice of a call by post ordered on a contributory out of the jurisdiction. In re the Land Credit Company of Ireland, Limited, 39 Law J. Eep. (n.s.) Chanc. 389. 5 8. — A call made on the winding-up of a com- pany is in the nature of a specialty debt, in which, the heirs are bound. Buoh v. Bobson, 39 Law J. Eep. (n.s.) Chanc. 82) ;*Law Eep. 10 Eq. 629. 59." — Section 199 of the Companies Act, 1862, makes section 75 apply to all companies wound up under part 8 of that Act. Where, therefore, a company unregistered imder the Act, whose calls previous to winding up were not of the nature of specialty debts, is ordered to be wound up under part 8 of the Act, the calls made in the winding- up are of the nature of specialty debts. In re Maggeridge ; Muggeridge v. Sharp, 39 Law J. Eep. (n.s.) Chanc. 620 ; Law Eep. 10 Eq. 443. Where in a suit for the administration of the estate of a shareholder, after an order for the dis- tribution of the assets amongst the specialty creditors whose debts had been ascertained had been made, but before it had been drawn up, and before any list of contributories had been settled, or any debts proved against the company, the official liquidator sent in a claim for the estimated liability on the shares held by the deceased, a proportionate part of the assets of the deceased was set apart to meet such claims. Ibid. [And see supra (C) 68 and (D).] (/) Transfer of shares. (1) Capacity to make or accept. (i) Married woman. 60. — A woman, entitled to shares in a banking company, married, and by her marriage settle^ ment the shares were vested in trustees for her separate use. The bank dealt, both as to the shares and otherwise, with her alone as being absolutely entitled to separate estate, and, on her application, fifteen new shares were allotted to her in respect of the settled shares, she paying for them by her own cheque on her separate account at the bank. Upon the winding-up of the company, she was placed on the list of contributories as to these fifteen shares in respect of her separate estate : — Held, that she was rightly so placed on COMPANY (E). 129 the list ; that the contract, being mutually made with reference to and upon the credit of her sepa- rate estate, was such as would bind her separate estate if made with an individual : that it was equally possible for her so to bind her separate estate by contract with a company ; and that, even if there had been anything in the company's deed of settlement which would justify the share- holders in upsetting the contract, she could not herself repudiate it. In re The Leeds Banking Company, ex parte Matthewman, 36 Law J. Rep. (n.s.) Chanc. 90 ; Law Eep. 3 Eq. 781. Semble— That the cbntract of a married woman, iiiviirder to bind her separate estate, need not be in irriting, nor need it expressly refer to the sepa- rate estate. Ibid. i Semble — The arrears of her separate estate for liffe will, at the death of a married woman, remain •liable to such obligations as her separate estate 'would have been liable to in her lifetime. Ibid. ■ ■ Observations on Shattock v. Shattock, 35 Law J. Rep. (n.s.) Chanc. 609 ; see Baeon & Feme, 36, and Johnson v. Gallagher, 3 De Gex, F. & J. 494; 30 Law J. Eep. (n.s.) Chanc. 298, and on the distinction between " property " and " power " in the case of a married woman. Ibid, (ii) Infants. 61. — It is the duty of a transferor of shares to see that the transferee is a competent person, therefore where he transferred shares to an infant although ignorant of the fact, and they were registered in the infant's name, the company also being ignorant of the fact of infancy : — Held, on winding-up, that the name of the transferor should be substituted for that of the infant. In re The Jaint- Stock Discount Company, ^ann's ease. Law Eep. 3 Chanc. 459 n. -" ■ 62. — The grandfather of an infant purchased for her eighty shares in a joint-stock company. The infant's name was duly entered oti ibe shave- register, and she received dividends on the shares. The company subsequently became insolvent, and an order for winding it up was made. Before that time the infant had effectually sold and dis- posed of seventy of the shares and the transfers had been duly registered. On the application of the official liquidator, the transferor to the infant was substituted on the list of contributories for the infant, in respect of the remaining ten shares, although she appeared and opposed the application. In re The Imperial Mercantile Credit Association, Curtis' s case, 37 Law J. Rep. (n.s.) Chanc. 629; Law Rep. 6 Eq. 455. 63. — A transfer of shares in a joint-stock company to an infant is not ab initio, but only voidable ; and if, after he comes of age, he does not repudiate the shares, he will, on the winding- up of the company, be fix^ on the list of con- tributories. But, semble, if at the date of the windiBg-up he is still an infant, the transfer will be treated as a nullity. In re Blakely Ordnance Co.. Lamsden's case. Law Rep. 4 Chanc. 31. 64. — An infant shareholder who attains ma- jority after having been placed on the list of con- tributories is entitled to have his name removed Digest, 1865-70. from the list of contributories, notwithstanding some delay. In re The Alexandra Fark Company, ex parte Hart. In re Barneys Banking Company, ex parte Delmar, 38 Law J. Rep. (n.s.) Chanc. 85; Law Rep. 6 Eq. 512. Such delay disentitles him to the costs of getting his name removed. Ibid. 65. — A transferee of shares in a company, who at the date of the winding-up order was still an infant, is entitled to treat the transfer to him as a nullity, unless and until he has since attaining twenty-one done acts amounting to complete acquiescence. Such acquiescence was held not to have arisen, from the fact that the solicitors con- sulted by him appeared for him and many other clients at the same time to resist a summons- for a call. In re The Commercial Bank Corporation of India jmd the East, Wilson's case, 38 Law J. Rep., (n.s.) Chanc. 526 ; Law Rep. 8 Eq. 240. 66. — A father purchased shares in a company, and had the transfer made to his son, who was then an infant, and at sea. From the father's evi- dence it appeared that he, or another of his sons, also an infant, had signed the transfer in the name of his son. The company had since been ordered to be wound up, and on ,an application by the liquidator to take the son's name off the list of contributories, and to put thereon in its stead either the name of the father or those of the ven- dors, the latter were ordered by the Master of the Rolls, and on appeal by the Lords Justices, to be put on 'the list. In re The National Provincial Marine Insurance Company, Maittand's case, 38 Law J. Rep. (n.s.) Chanc. 664. 67. — Where a transferee of shares was still an infant at the date of the winding-up order : — Held, that at the instance of the official liquidator the name of the transferor might be substituted for him on the list of contributories, although the infant had since attained twenty-one and desired to retain the shares. In re Continental Bank Corpo- ration, Castello's case. Law Rep. 8 Eq. 604. 68. — A company in 1865 had notice that a transferee was an infant, but they took no steps 1 o remove his name from the register, nor communi- cated the fact of his infancy to the transferor. In January, 1868, a winding-up order was made. In October, 1868, S attained twenty-one. On an ap- plication by the official liquidator to substitute the name of the transferor of the shares for that of the infant: — Held, that the company were pre- cluded by their laches from so doing, and the ap- plication must be refused. In re The European Central Bailway Company, Limited, Parson's and Spony's case, 39 Law J. Rep. (n.s.) Chanc. 64 ; Law Rep. 8 Eq. 656. 69.— A transfer of shares was made to an infant, being also a person of no means, for a nominal consideration. Three years afterwn.rds the company was wound up voluntarily. The Court refused to place the executors of the trans- feror on the list of contributories. In re Ihe Norwegian Charcoal Iron Company, Limited, Mitchell's case, 39 Law J. Rep. (n.s.) Chanc. 199- Law Rep, 9 Eq. 363. An infant transferee of shares can only repudiate S 130 COMPANY (E). them within a reasonable time after coming of age if the company is a going concern. Ibid. 70. — Where shares in a company were trans- ferred to an infant who did not attain his majority till"after the winding-up of the company : — Held, that the official liquidator had a right to place the transferors upon the list of contributories, not- withstanding that the transferee after he attained twenty-one was willing to ratify the transaction. Ill re Asiatic Banking Corporation, ex parte Nasser- wanjee and others, Si/mons' case, 39 Law J. Eep. (n.s.) Chanc. 461 ; Law Eep. 6 Chanc. 398. (2) Collusive transfers. 71. — A transfer, made from a desire on the part of the transferor to escape from liability, is not bad where the directors have no veto, even though money should have been paid to the tra,nsfere6 for taking the shares, and the transfer falsely states money to have been paid to the transferor. In re the Hafod Lead Mining Company, Limited, 3.'5 Law J. Eep. (n.s.) Chanc. 304 ; 35 Beav. 391. 72. — A sale of shares in a company made after the presentation of a winding-up petition, but before its advertisement in the Gazette, will be sustained where the transaction appears strictly bon4 fide, and the vendor had, at the time of the sale, no knowledge of the infirm state of the com- pany. In re The London, Hamhiirgh and Conti- nental Exchange Bank, Limited, Ward and Em- mersorts case, 35 Law J. Eep. (n.s.) Chanc. 652 ; 35 Beav. 518; Law Eep. 2 Eq. 231. The first appearance of the advertisraent deter- mines the position of all parties. Ibid. The Master of the EoUs will not appoint a provisional liquidator unless the application be made with the consent of the company. Ibid. The Court will not sanction a transfer by a company of shares held by it in another company known to be insolvent into the name of a trustee when such transfer is made for the purpose of con- cealment. Ibid. [See next case and Nos. 79, 81, 95 infra.] 73. — The cases (Nos. 72 supra and 79 and 81 infra) do not decide that the jurisdiction given by section 35 to the Court to correct the register is purely discretionary. Semblo — The fact of a trans- fer of shares being made to a pauper, to escape liability, does not necessarily vitiate the transfer. On applications to correct the register, the Court is bound to take into consideration all the equit- able circumstances of the case ; and though a Court of Law might formerly have granted a mandamus against the company to register a transfer, yet a Court of Equity may 'refuse to enforce it on equit- able grounds. In re National Provincial Marine Insurance Co., ex parte Parker, Law Eep. 2 Chanc. 685. 74. — Where a holder of shares in a company, - which were quoted in the market at » largo dis- count, transferred the shares to a person of unsub- stantial means, apparently intending to retain control over them, although the transfer purported on its face to be made upon a sale : — Held, on~the company being subsequently wound up, that the transferor ought to be held liable on the shares ; and on an application made under s. 35 of the Companies Act, 1862, the transferor's name was restored to the register of members. In re The Bank of Hindustan, China and Japan, Kintreda case, 39 Law J. Eep. (n.s.) Chanc. 193; Law Eep. 5 Chanc. 96. In such a case, the Court has, by virtue of the winding-up, jurisdiction to award costs against the transferor who resisted the application. The ap- plication in such a case should in form be made by the company, and not by the official liquidator. Ibid. Semble — It is the fight of a suitor to have such an expression of opinion by the Judge of primary instance, as will be capable of being discussed on appeal. Ibid. 75. — P transferred shares to L, who was a clerk at 25s. a-week salary, and he paid him bl. to induce hira to execute the deed. The deed repre- sented L to be a "gentleman," and that L had paid 17/. for the transfer. The directors had power to decline to register, but, being misled, they did not do so : — Held, that P's name must be substituted for L's. Payne's case; Mercantile Credit Associa- tion, Law Eep. 9 Eq. 223 ; affirming William's case, in the same company, Law Eep. 9 Eq. 225 n. 76. — Shares were transferred in order to escape liability to a man of straw, by a deed giving false description and address of transferee, and purport- ing to be made for valuable consideration, whereas, ill fact, no consideration passed; and the transfer was registered. The company, being one in which the directors had no power to disallow a transfer : — Held, that, although the circumstances were suspicious, yet, as the parties deposed that no trust was reserved in favour of the transferor, he could not be put upon the list of contributories. In re Smith, Knight, and Company, Baltic's case, 39 Law J. Eep. (n.s.) Chanc. 391. Secus — If there had been such a power, 77. — In July, 1866, in pursuance of a poweriu the deed of settlement in the C Mining Company, the shares in which had up to that time been trans- ferable by delivery of the certificates, resolutions were passed which were afterwards confirmed, for augmenting the capital of the company by 10/. per ' share payable by calls, and for registering the company as a limited company under the Com- panies Act, 1862, and for that purpose giving power to the directors to call in the existing cer- tificates for cancellation, and in order that the proprietors thereof might be registered. Accord-, ingly a call of 1 Os. a share was made, and on re- ceiving notice thereof E W, the holder of certifi- cates for 60 shares, delivered his certificates to his son, E M W, an infant, who was living with him, and in the same month he purchased through his brokers 25 more shares, the certificates of which were also delivered to the son, who, upon the registration of the company under the Companies . Act, 1862, was registered as the "holder of 75 shares, and to whom the notices of subsequent calls were sent, but without any knowledge on the, part of the directors that he \vas a minor. On the COMPANY (E). 131 23kI of Dscember, 1S08, resolutions, which were afterwards confirmed, were passed for the volun- tary winding up of the company, and the winding- up was afterwards ordered tg be continued under the siipervision of the Court. The name of E W, the father, having been placed on the list of con- tributories for 75 shares : — Held, affirming the decision of one of the Vice Chancellors, that it was properly so placed, the Court being of opinion that the transfer to the infant was a device for escaping liability without foregoing the chance of profit. In re The Company of Proprietors (jf the Eoyod Copper Mines of Cobre, lAmited, Weston's case, 39 Law J. Rep, (n.s.) Chane. 753 ; Law Eep. 5 Chane. 6U. (8) Registration of tranters. (i) Sale or registration after winding-up, 78. — The first appearance of the advertisement to wind up a company determines the position of all the shareholders, but up to that time it is open to them to deal exactly as if the company were not about to be wound up, provided the transaction be bon& fide. A sold shaxes in a company to B, both b?ing ignorant at the time that a petition had been presented to wind up the company, and upon which an order was subsequently made : — Held, that notwithstanding the 84th and 114th sections of the Companies Act, 1862, there was a valid and binding sale. Under the above circumstances, the Master of the Eolls held that he' had authority tinder that Act to deal with the case, and he placed the purchaser on the list in lieu of the vendor, whose name had remained on the register. The Lords Justices concurred in thinking that the Court had Such authority ; but held that the circumstances were such that the Court could not specifically perform the contract. In re London, jSamhurqh, ^., Bank^ Toomb's case, Emmerson's ease, 36 Law J. Eep. (n.s.) Chane. 662; 35 Beav. 518; Law Eep. 2 Eq. 231. [See next case.] Practice as to appointing provisional liquidators. Ibid. 79. — A bona fide sale of shares in a company made after the presentation of a petition to wind up, but before advertisement of it, the parties being igaorant of the position of the company, may be supported by the Court in the exercise of its dis- cretion given by the 53rd section of the Com- panies Act, 1862, But the Court will not compel a purchaser to complete the sale -and register the shares in his name if the transaction be incomplete. In re the London, Hamburgh, and Continental Bank, Limited, Emmerson's case, 36 Law J. Eep. (n.s.) Chane. 177 ; Law Eep. 1 Chane. 433. 80. — A transfer of shares in a limited company, which had been duly executed by the transfeito and transferee, was left for registration at the oflice of the company, but in consequence of the failure of the company on the following day, no registration took place. The company's articles provided that the registration of transfers should be subject to the approval of the directors, and that until registration the transferor should be deemed to be the holder of the shares. In the subsequent winding-up under supervision, tlio liquidator, finding the transfer unregistered, sub- stituted the name of the transferee for that of the transferor on the register and list of contributories. Upon summons by the transferee to have his name removed : — Held, that the Court had power under the 35th sect, of the Companies Act, 1862, to authorise the registration of the transfer by the liquidator. In re Overend, Gumey ^ Co., Limited, Ward's case, 36 Law J. Eep. (n.s.) Chane. 416; Law Eep. 4 Eq. 189. 81. — -A shareholder in a limited company sold his shares, and the purchaser sold them to a sub- purchaser. The vendor executed transfers, first, to the purchaser, and, secondly, to a nominee of the sub-purchaser; but, owing to disputes between the ' purchaser and the sub-purchaser, neither transfer was registered ; and, at the date of a winding-up order subsequently made against the company, the name of the original vendor remained on the register as the holder of the shares, and he was placed on the list of contributories. An order made by the Master of the Eolls, 35 Law J. Eep. (n.s.) Chane. 652; Law Eep. 2 Eq. 226, on simimons, removing the name of the original ven- dor, and substituting that of the sub-purchaser, was discharged by the Lords Justices : by Lord Justice Turner, on the ground that the jurisdiction to rectify the register depended on the Companies Act, 1862, sect. 35, and, being discretionary, ought, under the circumstances, not to be exercised ; and, by Lord Justice Cairns, on the ground that, the company being in no default in the matter, the jui'isdiction under the Act could not be exercised. In re The London, Hamburgh, and Continental Exchatige Bank, cic parte Ward, 36 Law J. Eep. (n.s.) Chane. 462 ; Law Eep. 2 Chane. 431. Lord Justice Turner. — The jurisdiction under sect. 35 to rectify errors in the register is generally applicable in all cases of error, whether occasioned by default of the company or otherwise. Ibid. Lord Justice Cairns. — The object of sect. 35 is to_ provide for the correction of errors in the regis- ter caused by the default of the company, and of such errors alone. Ibid. -82. — Semble — A deed of transfer of shares is not necessarily void by reason that when executed the number of shares was not specified, though understood, and where the purchase-money was expressed the transaction was bona fide, and the purchaser afterwards added the number of shares, which was assented to by the vendor as accurate. Per Master of the Eolls, In re Barned's Banking Company, ex parte Contract Corporation, 36 Law J. Eep. (n.s.) Chane. 732. [See next case.] 83. — Shares in company B had been transferred by D to company C, but not registered before the commencement of the winding-up of company C t — Held, nevertheless, that the subsequent registra- tion of the transfer to jcompany C was valid ; sect. 163 of the Companies Act, 1862, not applying to such a case. In re Barned's Banking Company, ex parte Contract Corporation, 37 Law J. Rep, (n.s.) Chane. 81 ; Law Eep. 3 Chano. 105. 84. — A and B executed a transfer of shares iu a company, B as purchaser, A as vendor, but s 2 132 COMPANY (E), owing to B's absence the name of A was allowed to remain on the register of shareholders till, the company being put in course of wiuding-up, the register could not be altered, and A was obliged to pay calls. B was ordered to pay A the amount of the call and interest, and to indemnify him against future liability. Evans v. Wood, 37 Law J. Eep. (n.s.) Chano. 159 ; Law Eep. 6 Eq. 9. Form of decree for that purpose. Ibid. 85. — To an action brought against the defen- dant for not indemnifying the plaintiff against calls made in respect of shares in a joint-stock company sold to the defendant by the plaintifi, the defendant pleaded that, before the making of the agreement in the declaration mentioned, a resolution had been passed requiring the company to be wound up voluntarily ; that a petition had been presented, and the winding-up had com- . menced, and the company had been wound up ; that before and at the time of the making of the agreement the plaintiff knew of the resolution, the petition and the commencement of the winding-up, but that the defendant was ignorant of them ; that neither the sanction of the Court or of the official liquidator to the sale or transfer of the shares had been obtained, nor had any order been made by the Court as to the sale or transfer ; that at the time of the agreement being made the plaintiff was not a member of the company nor registered as such, of which the defendant was ignorant ; that the defendant had not been regis- tered as or made a member of the company ; that there had been no default on the part of the com- pany in omitting his name from the register or otherwise in relation to the shares ; and that the defendant never made any express agreement to indemnify the jjlaintiff : — Held, that the plea dis- closed no answer to the action, and was bad. Jtudge Y. Bowman, 37 Law J. Eep. (n.s.) Q. B. 193 ; 9 Best & S. 864 ; Law Eep. 3 Q. B. 689. [And see supra (C) 68.] (ii) Delay or neglect to register. 86. — The fact of a petition to wind up being pending is not a sufficient reason for directors postponing the registration of transfers which have been sent in after the presentation of the petition, but to which there is no other objection. In re Ths Hercules Insurance Company, ex parte Lowe, 39 Law J. Eep. (n.s.) Chanc. 468 ; Law Eep. 9 Eq. 589. 87. — ^A transfer of shares in a limited company was executed in December, 1865, but not lodged in the company's office till March 2, 1866. It was the practice of the directors to pass transfers at their ordinary weekly meetings ; and, an ordinary weekly meeting having been held on March 2, none could, in the regular coutse, be held till the 8th following. On March 3, the directors passed .-t resolution that no transfer then in the office should be registered without the express sanction of the directors ; and on the 7th a winding-up petition, was presented, on which a winding-up order was subsequently made : — Held, by tlie Lords Justices, affirming an order made by the Master of the Bolls, 35 Law J. Eep. (n.s.) Chanc- 626 ; Law Eep. 2 Eq. 564, that the transferor re- mained a shareholder, and that the Court would not interfere for the purpose of rectifying the re- gister, under the Companies Act, 1862, s. 36. In re The Joint-Stock Discount Company, Limited, ex parte Shepherd, 36 Law J. Eep. (n.s.) Chane. 32 ; Law Eep. 2 Chanc. 16. 88. — After a banking company had stopped payment, but prior to any order or resolution for winding up, W executed a bond fide transfer of his shares to E. The transfer was not executed by the transferee, nor approved of by the directors, nor registered in the books of the company (aa required by the articles of association) : — ^Held, upon an application by "W to remove his name from the register and substitute the name of E, that the Court could not dispense with the regu- lations contained in the articles, and that W's name must remain on the list of eon tribu tones in the winding-up. In re ' Overend, Gwrnty ^ Co., ex parte Thomas Walker, 36 Law J. Eep. (n.s.) Chane. 826 ; Law Eep. 2 Eq. 654. 89. — The omission by the directors of a com- pany to register the transfer of shares at one board meeting passed, is unnecessary delay; and the name of a person which is on the list of contri- butories through such delay will be struck off, under sect. 35 of the above Act. The Court will not in such a case consider the state of the affairs of the company at the time when the registration ought to have been completed. In re The Joint- Stock Discount Company, Limited, ex parte Nation, 36 Law J. Eep. (n.s.) Chane. 112; Law Eep. 3Eq. 77. Shepherd's case, 35 Law J. Eep. (w.s.) Chanc 626; s.c. on appeal, ante, 87, commented on. Ibid. 90. — A limited company, acting as agents for a purchaser abroad, purchased a number of their own shares. The deed of transfer was executed by the transferor, and lodged with the company for registration, but it was never executed by the transferee. It appeared that it was the established practice of the company not to register a transfer unless the deed was executed by the transferee hs well as by the transferor. The deed had not in fact been sent to the purchaser for execution when the company suspended payment. During the interval, four days, between the leaving the transfer at the office and the suspension of payment, a meeting of the directors was held, at which nothing relative to the transaction in question took place : — Held, on the company being wound up immediately afterwards, that the transferor's name was rightly placed upon the list of contri- butories. In re The Imperial Mercantile Credit Association, Limited, ex parte Marino, 36 Law J. Eep. (n.s.) Chanc. 468 ; Law Eep. 2 Chanc. 696. Held, also, that the first duty of the company, as agents for the purchaser, was to procure his execution of the transfer, and that until such execu- tion they could not put him on the register. Ibid. 91.— It was the practice of a company that before registering the name of any transferee as shareholder, a director should weekly examine a book in which the transfers were entered, and seal COMPANY (E). 18 a new share certificate. Owing to non-attendance on previous occasions, he was unable to examine the whole of the entries :^Held, that the company were guilty of unnecessary delay, and that a trans- feror whose name might have been removed from the register but for such delay was entitled to have his name rem9Ved from the list of contributories. In re the Joint-Stock Discount Company, ex parte Read, 36 Law J. Eep. (n.s.) Chane. 472. In a second case the clerk of the company did not enter a transfer which had been lodged in such book, because a call had been made (though ^not due) and not .paid on the shares transferred; — Held, that there was not unnecessary delay. Ibid, 82. — The directors of a company, by a clause in the articles of association, had power to refuse to register any transfer to an irresponsible trans- feree : — Held, that it being a concfition precedent to the transfer, that the transferee should be a responsible person, undue delay in registering a transfer left for registration was no waiver of such condition. In re Joint-Stock Discount C(tmpany, Shipman's case, 37 Law J. Eep. (n.s.) Chanc. 193 ; Law Eep. 5 Eq. 219. 93. — The Court will not in a vrinding-up ex mero motu rectify the register. The application for that purpose must be made by some person whose claims can properly be adjudicated upon, and the Court will have regard to all the circum- stances of the case and the position of the appli- cant. Where an. official liquidator was the appli- cant, and it appeared that the name of the pro- posed contributory had not been placed upon the register through the neglect and delay of the com- pany, the Court refused the application (which had been granted by the Master" of the EoUs, 36 Law J. Eep. (n.s.) Chanc. 814), without dealing with the merits of the case as between the registered owner of the shares and the proposed transferee, upon the ground that the official assignee in such a case represents the company only, and the merits of the case did not entitle the company to move in the matter. In re the Joint-Stock Discount Company, Sichell's case, 37 Law J. Eep. (u.s.) Chanc. 373 ; Law Eep. 3 Chanc, 119. 94. — Where a transferor has neglected to see that the transfer of his shares is registered, the Court will not, after a winding-up order has been made, rectify the regiSter under section 36 of the Companies Act, 1862, although there has been un- necessary delay on the part of the company. In re the Angtb-Danubian Steam Navigation and Colliery Company, Walker's ease, 37 Law J. Eep. (n.s.) Chanc. 661 ; Law Eep. 6 Eq. 30. A shareholder had compromised actions pending between himself and the company and the directc rs on the terms that he should pay a certain sum, and should transfer his shares to one of the direc- tors. He.paid the sum and executed a transfer of his shares to the director, who also executed the , same. The transfer was deposited with the attor- ney who acted for the company and the directors in the action. No further steps were taken for more than two years, and till after an order had been made to wind up the company, when the shareholder applied for a rectification of the regis- ter : — Held, that the register (on which the name of the shareholder appeared) was conclusive and could not be altered. Ibid. (iii) Invalidity or mietakein transfer or registration. 95. — A company being in difficulties, A B gave C D 30i. to take a transfer of his shares ; and tha transfer, which stated (falsely) that C D had paid A B 25i. for the shares, was duly registered. About a year afterwards, the company was ordered to be wound up : — Held, that A B was not a contribu- tory. Distinction between a transfer of shares, which is fraudulent and void as against the trans- feree, and one which is so as regards the company. Slater's case, 35 Beav. 391. 96. — If a name be allowed to remain on the list of shareholders, there may be an equity against its being removed, but the same reasons cannot apply to the case of a name being suffered to re- main on the list of contributories ; and a person whose name has been so retained may produce evi- dence to shew that it ought never to have been put on. In re the Mexican and South American Company, ex parte Shewell, 36 Law J. Eep. (N.s.) Chanc. 353 ; Law Eep. 2 Chanc. 387. 97. — When a person agrees to become a memr ber of a company, is placed upon the register, and afterwards acts as a shareholder, he cannot resist being placed upon the list of contributories, what- ever may have been the circumstances under which the shares were transferred or allotted to him. The transfer, being bad as a deed, would not affect the question of his liability, nor even dishonest conduct on the part of officers of the company. In re The International Contract Company, Danger's case, 37 Law J. Eep. (n.s.) Chanc. 292 ; Law Eep. 1 Chanc. 823. 98. — Upon motion, under section 35 of the Companies Act, 1862, for an order to remove the applicant's name from the register of shareholders of a new company which he had never agreed to join, the Court, holding the conduct of the new company in putting him on their list wholly un- justifiable, gave him, in addition to the costs of his application, and by way of damages sustained by him, the legal expenses which he had-been occasioned by the company's conduct ; directing a reference to chambers to ascertain the amount. In re The New Quebrada Company, Pontifex's case, 36 Law J. Eep. (n.s.) Chanc. 903. 99. — Where a person's name has been impro- perly placed upon the list of contributories, hia right to have it removed is not affected by the fact that there is no person in exibtence who ought to be put upon the list in his stead. In re The Joint- Stock Discount Company, Fyfe's case, 38 Law J. Eep. (n.s.) Chanc. 726 ; Law Eep. 4 Chanc. 768. 100. — Where a company having the right to object to the registration of a transfer, registered it by mistake, and thirty-four days later the officer of the company entered the transfer as cancelled, and the company was afterwards wound up : — Held, that the transfer was in- valid, and that the transferor was not entitled to have his name removed from the list of cQntribu- 134 COMPAKY (E). tories. 1% re Bank of HbiJnsfan, China, and Jajjan, Anderson's case, Law Rep. 8 Eq. 509. 101. — A sold shares on the Stock Exchange ; the name of B, who had not bought them, was given as that of the ultimate purchaser. A exe- cuted a, transfer to B, whose name was placed on the register of shareholders, though he had not executed the transfer. B compelled the company to remove his name. Afterwards the company was wound up. A was made a contributory. Re Merchants Company, Heritage's case, 39 Law J. Eep. (n.s.) Chane. 238 ; Law Eep. 9 Eq. 6. (vi) Subdivided shares. 102. — The memorandum of association of a limited company stated that the nominal capital was 3,000,000^ divided into thirty thousand shares of lOOi. e4ch, subject to be increased or modified. The articles of association empowered the directors to reduce the nominal value of the shares by divid- ing them into a larger number, or to consolidate them so that the shares when reduced or consoli- dated, should together be equivalent in nominal value to the nominal value of the original shares before the reduction. Under this provision, they converted each lOOi. share into five 20?. shares : — Held, by the Lord Justices, affirming the decision of the Master of the Rolls, 36 Law J. Eep. (n.s.) Chanc. 87, that such conversion, not being an alteration of the memorandum of association war- ranted by the Companies Act, 1862, section 12, was illegal and invalid. In re Financial Corpora- tion, Ex parte Holmes, Pritchard and Adams, Ex parte Fieling and Eimington ; and Ex parte King, 36 Law J. Eep. (n.s.) Chanc. 695 ; Law Eep. 2 Ciianc. 714. A, the holder of ten lOOZ. shares and of no others, having accepted the conversion of them into fifty 20/. shares, transferred these fifty shares ' to B by a deed executed both by him and by B, and which described the shares as " fifty shares, numbered 19531 — 19580, in the undertaking called the Financial Corporation": — Held, that the fifty shares" representing exactly the same share and interest in the capital of the company as, and being identified in the share-register by number and description with, the ten original shares, and tlie transfer, if it did not pass the original shares, being wholly inoperative, such ten 100/. shares passed. Ibid. C, the holder of 100/. shares, who had accepted the conversion of them into 20/. shares, did not pay a call made on the 20/. shares, though not dis- puting its legality, and his shares were therefore forfeited : — Held, that the call, being made on 20/. shares, was invalid, but that, C having waived its tnvalidity, the validity of the forfeiture, founded upon it, could not be disputed. Ibid. D, E, and F were other transferees of 20/. shares : — Held, that they were liable to be put upon the list of contributories according as each lot of five 20/. shares could, or could not, be traced up to, and indentified with one of the 100/. shares. Ibid. 103. — A company duly incorporated issued a prospectus inviting applications for scrip certifi- cates to bearer of 50/. each,- and stating that, on registration of the perip, each certificate would be divided into five 10/. shares. E applied for and had alloted to him forty of these certificates, which expressly entitled the holder on registration to have the certificate divided into five 10/. shares, and before registration he sold and delivered them to a purchaser on the Stock Exchange:— Held, that the company had no right to enter E's name on their register as a holder of shares in respect of these certificates. Eustace v. The Dublin Trunk Connecting Railway, 37 Law J. Eep. (n.s.) Chanc. 716; Law Eep. 6 Eq. 182. (v) Forged transfers and registrations affected hy fraud. 104. — A T, the holder of shares in a railway company, deposited them with her broker, and requested him to keep them for her. A forged transfer, purporting to be made by A T to S and Gr, having been left with the certificates of the shares with the company, they, after writing to A T, without receiving any answer, erased her name from the register of shareholders, and sub- stitutedfthe names of S and G, delivering to them certificates of the shares. These shares were after- wards sold and transferred to B and G, who bought them bonft fide without notice of tlie forgery or of any frand. Upon the discovery of the forgery the company were called upon by A T to restore her name to the register as the holder of the shares. This they did, ersising the names of B and G:— Held, that B and G had a right to call upon the company to compensate them for the injury which they had sustained,- either by handing to them other shares, or by paying them such damages aa woidd put them in the position they were entitled to be in at the time the shares were transferred to them. In the matter of The Bahia and San Fran- cisco Railway Company, Limited, and of Amelia Trittin, Richard Burton, and Mary Anne Good- bum, 37 Law J. Eep. (n.s.) Q. B. 176 ; 9 Best & S. 844 ; Law Eep. 3 a. B. 584. . 105. — J, The owner of railway stock in two companies deposited the certificates for the same for safe custody in a bank of which H was the manager. H fraudulently sold the stock to bon4 fide purchasers, and forge* J's name to the deeds of transfer. The companies wrote to J at the ad- dresses given to them by him, and informed him that the deeds of transfer had been lodged for registration. The addresses given by J were H's bank and his club. H obtained both the letters from the companies, and in one case sent no answer to the company, in the other case forged J's name to the answer to the company. The deeds of transfer were thereupon registered by the com- panies respectively. On bill filed by J against ■ the companies and the purchasers of the stock : — Hold, that the case was identical with Cottam V. Tlw Eastern Counties Railway Company, 30 Law J. Eep. (N.s.) Chanc. 217; 1 Jo. & H. 243, and that the plaintiff was entitled to have the certifi- cates delivered up to him, _and the entries of the transfers in the company's books cancelled, but he was not entitled to costs. Johnston v. Renton; COMPANY (E). 135 Johnston v. Farsey, 39 Law J. Eep. (n.s.) Chane. 390; LawEep. 9 Eq. 181. 106. — A valid instrument which effectually conveys property cannot lose its effect merely by reason of its fraudulent cancellation or destruction. On this principle the transferee of shares was held entitled to them, notwithstanding that the transferee's broker, who was entrusted with tlie certificates for registration, by fraudulent means procTixed the shares to be registered in" his own name, and subsequently mortgaged them to an innocent lender, the Court not considering that plaintiff had been guilty of negligence. Donaldson V. GUliott, Law Eep 3 Eq. 274. 107. — After a certificate of shares in a limited company had been issued to H, and he had been registered as the owner, he . on the faith thereof repaid to his transferor a call which the latter had paid on the shares after the sale. The com- pany afterwards removed H's name from the register, and substituted that of F, it having been discovered that the shares had been duly trans- ferred previously to F : — Held, that the company were estopped by the certificate they had issued, and by tlie fact of registration from denying H's title to the shares, and that he could maintain an action against tliem for damages in consequence of the removal of his name from the register ; the damages being the value of the shares at the time pf the removal. Hart v. The Frontino and Bolivia South American Gold Mining Company, Limited, 39 Law J. Eep. (n.s.) Ex. 93 ; Law Eep. 6 Ex. lll.~ (4) Sales on the Stock Exchange. [See No. 101 supra.] [See Stock Exchange.] [g) Persons who hfbe forfeited or surrendered their shares. (1) Where the forfeiture or surrender was made on the request of the holder : irregularity : acquies- cence : ultra vires, 108. — A shareholder in a joint-stock company retired from the company in a mode not prescribed by the deed constituting the company, but upon the t«rms of an arrangement come to at a meeting of the company held at Chippenhom. Notice of the arrangement was sent to every one of the other shareholders; no one of whom objected during twelve years, with the exception of a few, who afterwards waived their objection in consideration of a separate bargain which they made with the directors, by which it was agreed that they also should retire, and cease to belong to the company. Such dissentient shareholders were afterwards placed upon the list of contributories : — Held, that the shareholders, having neglected during a rea- sonable time to object to the arrangement, of which they had received notice, were bound by it, notwithstanding the original dissent of the dissen- tient shareholders, and their restoration to the list of contributories. Evans, official manager of the Agriculturist Cattle Insurawe Company, and an- other V. Smoilcombe's Executors, 37 Law J. Eep. (n.s.) Chanc. 793 ; Law Eep. 3 E. & L App. 249. By Lord Cairns. — " Acquiescence " does not mean simply an active intelligent consent, but will be implied if parties are content not to oppose irregular acts which they know are being done, Ibid. Whether the shareholders, thus bound by time, coupled with notice, have any remedy against the executive of the company — quaere. Ibid. By Lord Chelmsford, dissentiente. — Acqui- escence of shareholders in a transaction not war- ranted by the constitution of a company, to which all the'shareholders have assented, must be co-ex- tensive with the consent required to give it vali- dity originally, that is, of every member of the company. Ibid. 109. — The facts in the present case varied from those in the preceding case, inasmuch as the present appellants did not accede to the Chippen- ham arrangement within the time limited : — Held, that the appellants must be placed on the list of contributories, such variation not having been communicated to all the shai'eholders. Houldsworth v. Evans, the official manager of the Agriculturist Cattle Insurance Company, and an- other, 37 Law J. Eep. (n.s.) Chane. 800 ; Law Eep. 3 E. & I. App. 263. Although shareholders will be bound by their acquiescence during a reasonable time in an irre- gular transaction, notice of which has been com- municated to them, any arrangement materially varying from the precise terms communicated will not be binding upon them, whatever length of time may elapse before objection is made. Ibid. By Lord Cranworth. — Absent shareholders aro not bound to do anything more than assume that their directors are doing their duty, unless they are informed that the directors have exceedc4 their powers. If, with that knowledge, they take no steps, and make no inquiry during a long time, they must be taken to have retrospectively sanc- tioned what has been done. Ibid. 110. — Directors entered into an arrangement allowing a shareholder to retire. The arrange- ment was not within their powers : — Held, revers-. ing the decision of the Master of the Eolls, that though the transaction appeared in the share re- gistry-book and in the minutes of the directors, and though twelve years had passed during which the shareholder was treated as having retired, yet his executrix was a contributory, In re the Agri- culturist Insurance Company, Stanhope's case,, 35 Law J. Eep. (n.s.) Chanc. 296 ; Law Eep. 1. Chanc. 161. It is no part of the duty of a shareholder to look into the management, nor will notice be, im-^ puted because he has not done so. Ibid. Spackman's case, 34 Law J. Eep. (n.s.) Chanc, 321, followed. Ibid. Lord Bethaven's case, 34 Law J. Eep. (n.s.) Chanc. 503, distinguished. Ibid. 111. — Where the articles of association of a company make no provision as to what number of directors shall constitute a quorum, the usual prac- tice of the company must be looked to. Therefore, in the case of a company in which two directors (the whole number being six) usually constituted 136 COMPANY (E). a board, a resolution passed by a board of two directors to declare the shares of L forfeited, was held valid. In re The Tamstock Iron Works and Steel Ordnance Company, lAmited, lyster's case, 36 Law J. Eep. (n.s.) Chanc. 616; Law Eep. 4 Eq. 233. Notice of the forfeiture was entered in the share ledger, the journal and the minutes of the direction, but L's name was not removed from the share register : — Held, that the forfeiture was valid and complete. Ibid. L had obtained a decree for specific performance of a sale of shares to B, but had been unable to make the decree effectual for eighteen months by reason of B's absence ont of the jurisdiction, during which time the shares were forfeited for non-pay- ment of calls. After B's return, the transfer (which had been signed by L previously to the forfeiture) was executed by B at L's instance : — Held, that this circumstance did not amount to a waiver of the forfeiture by L. Ibid. 112. — A shareholder in a joint-stock company, limitod, upon discovering, as he alleged, that he had taken shares under circumstances that entitled him to a return of his deposit and a call, proposed to the directors that his shares should be forfeited, and his name removed from the register. By a clause of the company's deed calls due at time of forfeiture were recoverable. The directors forfeited the shares, and a call being due, they resolved not to enforce the call ; but they did not remove his name from the register, where it was ■when the winding-up order was made, seventeen months after the forfeiture : — Held, the shareholder was a contributory ; and held, that the shareholder should pay the official liquidator's costs. In re London and Promncial Starch Company, Gamer's case. Law Eep. 6 Eq. 77. 113. — In 1846 D became a shareholder in an unlimited company, upon the faith of a promise by W, the local manager, that he should not become responsible as a .shareholder until an Act of Par- liament should be passed incorporating the com- pany with limited liability. D never paid any calls upon his shares, all calls being paid by W ; but he acted as a shareholder in some particulars. No Act, such as that alluded to, was' ever passed. Upon D's application that his shares should be cancelled, the directors in 1848 passed a resolution to cancel the shares. Such a resolution by di- rectors was ultra vires, but no steps were taken by the company to enforce D's liability as a share- holder, and for twenty years D held no communi- cation with the company. In 1869 the official liquidator (the company being then in course of winding up), sought to place D upon the list of contributories : — Held, reversing the decision of the Master of the Kolls, 38 Law J. Eep. (n.s.) Chanc. 667, on the authority of Spackman v. Evans, 37 Law J. Eep. (n.s.) Chanc. 753; Law Eep. 3 H.L. 171, see infra (E) 124, Houldsworth V. Evans (No. 109 supra) and Stanfiope's case (No. 110 supra), that D must be placed upon the list of contributories. In re the Agrictdturist Cattle Insurance Company, Dixon's case, 39 Law J. Eep. (n.s.) Chanc. 134 ; Law Eep. 5 Chanc. 79. This decision was reversed, on appeal, by the House of Lords, 41 Law J. Eep. (n.s.) Chanc. Not yet reported. 114. — The owners of mines formed in 1835 a joint-stock company for working the mines by dividing the mining property into a certain nranber of shares, and after distributing a part of each shares, amongst themselves, allotting the remainder to the public at 40?. per share, payable by instal- ments to the said owners. The deed of settlement of the company provided for the forfeiture of the shares on non-payment of the instalments due thereon, and reserved powers for increasing the capital of the company by augmenting the amounts of the shares, and for altering the articles of the company. Under a subsequent deed the share cer- tificates were made transferable by delivery. In 1866, in order to raise additional capital of the company, and with the view of having the company registered as a limited company, resolutions were passed by general meetings of the company, that the amount of the existing shares should be in- creased by 101. per share, payable by instalments, and in default of payment, that the share should be forfeited, and that the holders of share cer- tificates should return their certificates, with their names and addresses, before a given day, or in default that their shares should be forfeited. The holders of a number of shares did not send in their certificates by the day named, and their shares were accordingly declared forfeited. The company was shortly afterwards registered as a limited company, the list of shareholders sent in to the registrar comprising the names of those only who had sent in their certificates in compliance with the above resolution. On the company being sub- sequently wound up: — Held, that the shares of the members of the old company who had not sent in their certificates had been effectually forfeited, and they were not liable, to be placed on the list of contributories to the new company. In re The Eoyal Copper Mines of Cobre Company, KelUs case, Pahlen's case, 39 Law J. Eep. (n.s.) Chanc. 231 ; Law Eep. 9 Eq. 107. 115. — At a meeting of the A company, terms were proposed for enabling shareholders who de- sired to withdraw from the company to do so, on making certain payments in proportion to the num- ber of shares held by them ; and a circular was sent to all the shareholders informing them of the proposals, and requiring those shareholders who intended to retire upon those terms to signify their assent thereto by a certain day, when the adjourned meeting was appointed to be held ; and at the adjourned meetinga resolution was passed affirming the proposed terms. S, a shareholder, was prevented by illness from attending the meet- ing, and he did not accept the terms by the day specified, but, after his death, his executors accepted the terms, and paid the sum required for enabling them to retire, but no notice of this trans- action was given to the other shareholders :— Held, that time was of the essence of the arrange- ment, and that S not having acceded to the arrangement by the day fixed, his executors could not afterwards avail themselves of it, and their names were ordered to be placed on the list of COMPANY (E). 13? contributories.' In re The Agrieultarist Cattle Insurance Cpmpany, Stewart's Executors' case, 35 L:iw J. Hep. (n.s.) Chanc. 750 ; Law Kep. 1 Chanc. 611. Brotherhoods case, 31 Beav. 365; 31 Law J. Rep. (n.s.) Chanc. 861 ; before the Master of the Eolls, distinguished. Ibid. U6. — A shareholder transferred 150 shares to the manager and a director "on behalf of the company," on the understanding that the value, of them at par should be credited to him as payment in full on other 50 shares, of which he retained possession. The company had no power to hold its own shares : — Held, that the transaction being ultra vires, he could„ not thus divest himself of his liability without notice to and the knowledge of all the individual shareholders ; and that he was still a contributory for the whole number of 200 shares. In re the General Provident Assurance Company, Cross's case, 38 Law J. Rep. (n.s.) Chanc. 583. Affidavits filed while a case stands over part heard will not be admitted in evidence if objected to. Ibid. 117. — The articles of association of a company provided that in case a shareholder should neglect to pay any call, the company might give him notice of forieiture, and further, that if default should be made in payment, the directors might pass a reso- lution to forfeit the shares, and that an entry of such forfeiture should be made in the books, and notice thereof be given to the shareholder, and that thereupon the forfeited shares should become the property of the company. One of the share- holders being in default, a notice of forfeiture was given. The shareholder did not pay the call. There \fas no evidence that any resolution was passed by the directors, but entries were made in the books of the company that the shares had been forfeited, and that they had been transferred from the name of the shareholder into that of the company. No further notice was given to the shareholder of the forfeiture, but he was thence- forward treated by the company as no longer a member : — Held, that the forfeiture was complete, and on the company being afterwards wound up, the shareholder's name was ordered to be taken off the list of contributories as a present member. In re The North Halhnbeagle Tin and Copper Mining Company, ex parte Knight, 36 Law J. Rep. (n.s.) Chanc. 317; Law Rep. 2 Chanc. 321. 118. — A clause in a deed of settlement of a banking company, terminating the responsibility of shareholders on forfeiture or effectual transfer of their shares, contained a proviso, " that nothing in that clause should, extend to release the previous holder of shares so forfeited, or transferred, from his proportion of the losses (if any) sustained by the company up to the period of his ceasing to be such holder as aforesaid: — Held, that transferors remained liable between them and the company for all losses prior to the transfer ; that this liability was a specialty ; that it dated from the transfer ; that the liability as a contributory was only barred where the transfer had taken place twenty years before the winding-up ordBr. In re Portsmouth Digest, 1865-70. Banking Company, Helby's, Stoke's, and Horsey't cases. Law Rep. 2 Eq. 167. 119. — Shares were forfeited for non-payment of calls. The articles of association of the company provided that the forfeiture of any share should involve the extinction of all interest in and claims and demands against the company in respect of the share, and all other rights incident to the share, but that any member whose shares had been forfeited should bo liable to pay to the company all calls owing on such shares at the time of for- feiture. Interest was, under the articles, payable upon calls in arrear at the rate of 251. per cent. : — , Held, affirming the Master of the Rolls, 37 Law J. Rep. (N.s.) Chanc. 5 ; Law Rep. 6 Eq. 6, that no interest could be claimed under the articles upon calls owing in respect of forfeited shares ; and that inasmuch as the provision in the articles created a new right to the call, and no notice to pay interest had been given subsequent to the forfeiture. Baron Parke's Act did not apply so as to give a claim to interest. In re The Blakely Ordnance Company, Stocken's case, 37 Law J. Rep. (n.s.) Chanc. 230; Law Rep. 3 Chanc: 412. 120. — The person, who was the owner of share* which have been forfeited, may be put upon the list of contributories as a past member, whether he was owner of the shares at the time they wers forfeited, or previously (if within one year of th9 date of the winding-up). In re The Blakely Ord- nance Company, Creyke's case, 39 Law J. Rep. (n.s.) Chanc. 124 ; Law Rep. 6 Chanc. 63. ^or the purpose of considering the liability of past members, forfeiture and transfer are equiva- lent. Ibid. Decision of the Master of the Rolls, 38 Law J. Rep. (n.s.) Chanc. 677. affirmed. Ibid. [And see supra (C) 49, 50.] (2) Where the forfeiture was made or threatened by the directors in exercise of their powers and without the holder's consent. 121.— B, the registered holder of 1,10 shares in a limited company, received a notice requiring pay- ment, on or before a certain day, of calls in arrear, and stating that upon default his shares would be " forfeited without further notice," in pursuance of certain clauses in the company's articles of association, which were set out in the notice. B at the same time received notice of an extraordinary general meeting to be hold for considering the pro- priety of winding up the company. Before the day named B called and paid his arrears upon ten shares,-explaining to the secretary that as to the remaining 100 shares he should submit to the for- feiture. B afterwards attended the meeting, and was entered (without his knowledge) in the list of persons present, as the proprietor of 110 shares. The directors had previously passed a resolution that the shari?s of several defaulting shareholders to whom the same notice had been sent, should be forfeited, but no such resolution was passed in respect of Bs fhares, and it appeared that the directors hai iiivor intended his shares to be forfeited. Upon the winding-up of the company, T 138 COMPANY (E). B applied to bo struck off the list of contributoriee in respect of his 100 shares: — Held, that the terms of the notice were not absolute as between ,the directors and the company, and that the shares were not actually forfeited, but only liable to bo forfeited at the option of the directors. In re The East Konsberg Mining Company, Limited, Bigg's case, 35 Law J. Eep. (n.s.) Chane. 216; Law Eep. 1 Eq. 309. 122. — The directors of a company issued to the allottees of new shares provisional certificates, which provided that on default in payment by a certain day of a second instalment of the moneys payable in respect of such new shares, " the amount paid, together with the rights and privileges ap- purtenant to the certificates, would be forfeited ; " an allottee of new shares to whom such provisional certificates had been issued made such default in payment. The company being wound up : — Held, that he was not a contributory. /»■ re Asiatic Banking Corporation, Ex parte Collum, 39 Law J. Eep. (n.s.) Chauc. 59 ; Law Eep. 9 Eq. 236. 123. — An amalgamation of one company with another had been agreed upon between the direc- tors of the two companies, on conditions, one of which was the voluntary winding-up of one com- pany. The directors of the company proposed to be wound up had power, under the articles of as- sociation, to accept surrenders of shares on, such terms as they might think fit, and an offer was made by the directors to shareholders, who might, if they remained on the register, impede the pass- ing of a resolution to wind up the company, of an option to have their allotments of shares cancelled : — Held, that such offer was not a fraudulent abuse by the directors of their power ; and that it was not fraudulent on the part of such shareholders to obtain their release from the position of share- holders in contemplation of a winding-up of the company, such winding-up being proposed in view, not of the insolvency of the company, but of the more beneficial working of its business in combina- tion with another company. — Held, also, that the circumstance that a meeting of shareholders had passed a resolution in favour of accepting sur- renders of shares from shareholders desirous of retiring, did not curtail the directors' independent right to exercise their power under the articles of accepting surrenders. In re The London and Mediterranean Bank, Limited, ex parte Joseph Wright, 37 Law J. Eep. (n.s.) Chanc. 529. Shareholders are entitled to proper notice of business proposed to be transacted at meetings to which they are summoned ; but it is not neces- sary that the terms of the notice should follow precisely the terms of the Companies Act, 1862. Ibid. 124. — A compaijy was formed under the Joint- Stock Companies Act, 7 & 8 Vict. c. 110. The deed of settlement provided that shareholders should cease to be members only on the sate and transfer of their shares to transferees approved by the directors, or by forfeiture on non-payment of calls and that forfeited shares might be sold to raise unpaid calls. The deed also empowered the directors to bring actions against any shareholders refusing to comply with the pro\asions of the deed. and to bring actions on account of anything concerning the rights of the company, and to compromise such actions. Spackman v. Evans, official, manager, and Hughes, creditors' representa- tive of the Agriculturist Cattle Insurance .Com- pany/, 37 Law J. Eep. (n.s.) Chanc. 752 ; Law Eep. 3 E. &L App. 171. The company having sustained losses, certain of the members wished to retire from it or to have it wound up ; but some wished it to continue. In compliance with a resolution passed at a general meeting, under what we know as the Chippenham arrangement, the directors made a call with the avowed object that such members as should elect ' to do so niight, upon paying a certain portion of it, be allowed to forfeit their shares for non-payment of the remainder ; and notice of the resolution was sent to every member. Subsequently, the directors broiigh an action against S, a shareholder, for non-payment of the call, and then they com- promised the action by allowidg him to forfeit his shares, upon paying a sum smaller than would have been his due proportion under the resolution. No special notice of the terms of compromise was given to the other shareholders ; but the balance- sheets showed that many members had retired and had paid large sums on going out, and there had been no steps taken to impeach the arrangement until after the winding-up order, a period of more than twelve years: — Held, by Lord Cranworth, Lord Chelmsford, and Lord Colonsay (Lord St. Leonards and Lord Eomilly dissenting), that the effect of the clauses as to forfeiture was only to make the shares a security for calls ; that it was the duty of the directors to enforce their calls by every means, and that it was a breach of trust to accept, under the pretence of forfeiture, shares known to be valueless in discharge of money due from a shareholder known to be solvent. Ibid. Time alone, without knowledge or notice wiU not grow into proof of acquiescence. Ibid. Members of a joint-stock company are not bound by acts ultra vires of their directors, though beneficial to the company, unless such acts have been expressly ratified by all the shareholders, or unless all, with knowledge or notice, have acqui- esced in what has been done. Ibid. [And see No. 36 supra.] (h) Persons who have been induced to take shares by fraud or misrepresentation, (1) Where there was misrepresentation in the 125. — Prospectuses of a company are always coloured, but if a material fact is stated in them which is untrue, and upon the faith of which a person takes shares, ho is entitled as against the company to require allotment of those shares to be cancelled and his deposit repaid. The remedy for recovering the deposit on shares is by action at law and not by bill in equity. A bill by one of several projectors of an abor- tive company against his co-projectors for repay- ment of moneys expended by him in attempting to carry out the project cannot be maintained; the bill should pray a general account of the expendi- COMPANY (E). 139 ture and a due adjustment between all the pro- jectors. Denton v. Macnid, 35 Beav. 652. 126. — The prospectus of a company stated that more than half the shares constituting the first issue had been subscribed for, and that the com- pany had contracted for the purchase of two estates, upon one of which the vendor had ex- pended a large sum in improvements. In fact, the chief promoter had agreed to take by himself or his ^nominees more than one-half of the number of shares issued, but he had before allotment car- ried such shares into the market, and the direc- tors had not required him to perform his agree- ment. The vendor to the company had not ex- pended any sum in improvements, and, as to one of the estates stated to have been contracted for, the vendor had merely entered into a verbal con- tract with the owner for the purchase thereof : — Held, affirn)ing the decision of Wood, V.C, 36 Law J. Eep. (n.s.) Clianc. 54 ; Law Eep. 3 Eq. 122, that there were sufficient misrepresentations to entitle the plaintiff to have the allotment of shares to him cancelled. Soss v. The Estates In- vestment Companv, limited, 37 Law J. Eep. (n.s.) Chane. 873 ; Law Eep. 3 Chano. 682. 127. — The limited liability Acts have not changed the rights of the creditors nor the liabi- lity of the shareholders. They merely changed the remedy which the creditor previously had, of issuing execution against the shareholder, into a right to obtain satisfaction of his debt by a forced contribution. A contributory under the-Companies Act, 1862, is a person who has agreed to become a member of a company and whose name is on the register. It matters not that his consent was obtained by fraud. The contract between a shareholder who has been deceived by a fraudulent prospectus and the company is voidable, not void, and can only be • avoided subject to the rights of creditors. The Certificate of registration prevents all re- currence to prior matters essential to registratinn, and is conclusive evidence that all previous requi- sites have been complied with. Semble — Liquidators may be appointed at a meeting convoked for the purpose of winding up without special notice, because a company cannot be wound up without liquidators. Persons who have taken shares in a company are bound to make themselves acquainted with the memorandum of association w'.thall reasonable dib'gence, or they will be bound by acquiescence. In re The Seese liiver Silver Mining Comfany, ex f arte Bmith, 36 Law J. Eep. (n.s.) Chanc. 618. See No. 188 infra; and Ships' case, 2 Do Gex, J. & S. 644, considered. Orders of Malins, V.C, 36 Law J. Kep. (n.s.) Chanc. 233, affirmed. Oakes >-. Tnrquand and Harding, and Feek v. The Same, In re Ovcrend, Gumey and Co., lAmitcd, 36 Law J. Eep. (n.s.) Chanc. 949 ; Law Eep. 2 E. & I. App. 325. 128. — What were held to amount to misrepre- sentations, on a railway prospectus, sufficient to entitle a shareholder who applied for shares on the faith of such prospectus to a return of his pay- ments with interest, and ns to the bona fides which ought to be observed towards the public in a prospectus for a public company. See No. 189 infra. TAc Central Railway Company of Venezuela V. Kisch, 36 Law J. Eep. (n.s.) Chanc". 849 ; Law Eep. 2 E. & I. App. 99. 129. — A steam-packet company entered into a contract with the postmaster-general of New Zea- land relating to the mail service of the colony. This contract the government of the colony refused to recognise, on the ground that it was beyond the authority of the postmaster-general. Meantime the company issued a prospectus, giving notice that they were prepared to receive applica- tions for new shares, " in order to enable the com- pany to perform the contract recently entered into with the general government of New Zealand for a monthly mail service between Sydney, New Zea- land and Panama." The plaintiff, after seeing this prospectus, applied for and obtained an allot- ment of shares: — Held, that he was not entitled, upon finding that the mail service contract was repudiated by the colonial government, to recover back the price of his shares, as although the pros- pectus contained an implied statement that the contract was binding upon the colonial govern- ment, yet the misrepresentation was not fraudu- lent, and was not such as to shew that there was a complete difference in substance between the shares which were bargained for and those which were obtained, so as to constitute a failure of considera- tion. Lord Gilbert Kennedy v. The Panama, New Zialand and Australian Eoyal Mail Company et e cmi., 36 Law J. Eep. (n.s.) Q. B. 260 ; 8 Best & S. 571 ; Law Eep. 2 Q. B. 680. 130. — An allottee ctf shares who applied for them on the faith of a prospectus which turned out to be positively false :— Held, on bill against the company seven months after the allotment, entitled to a return of wljat he had paid on his shares, and to have his name removed from the register ; although the prospectus stated that the articles of association were ready for inspection and the facts were truly stated therein. No. 147 infra observed upon, and distinguished on the ground that creditors were interested in thatcasc. Langham v. East Whfd Hose, ^c., Company, 37 Law J. Eep. (n.s.) Chanc. 253. 131. — A shareholder cannot file a bill on behalf of himself and all other shareholders seeking par- ticular relief on his own behalf and also general relief on behalf of the other shareholders. Distinction between a misrepresentation in a prospectus issued before, and one issued after the registration of the memorandum and articles of association. A prospectus contained a statement that certain persons, who had agreed to act as such, were directors of a company, but such persons in i'act refused to act before the allotment of the plaintifl's shares : — Held, that this was not a fraudident mis- representation affording ground for relief. A prospectus, issued after registration of the articles of association of a company, stated that the company would commence operations with ships of a certain class and number : — Held, that inasmuch as the applicant must be taken to have t2 uo COMPANY (E). known that, under the articleg, the directors had power to deal as they pleased with reference to the starting or non-starting of the company, he was not entitled to relief on bill filed against the directors and the company for indemnity in respect of his shares, bnt the bill as to this was dismissed, without costs. Hallows v. Fernie, 36 Law J. Eep. (n.s.) Chanc. 267 ; Law Eep. 3 Chane. 467. . 132. — The right of an allottee of shares to set aside a contract to take shares voidable through misrepresentation, is lost unless he take active steps to avoid such contract on his becoming aware of the facts, and before a winding-up order is made. He has no right to wait the result of litigation OB- the part of another shareholder for a similar object. 77ie Estates Investment Company, ex parte Ashley. Scholey v. Central Railway Company of Venezuela, 39 Law J. Eep. (n.s.) Chane. 3S4; Law Eep. 2 Eq. 263. 133. — A sharfholder in a company who had applied for shares on the faith of the prospectus : — Held, not to be entitled upon bill in equity to be relieved from his shares and liability on the ground of the suppression in the prospectus of the fact that paid-up shares were given to the directors to qualify them ; and promotion money was given to other parties to bring out the company ; the prospectus not containing any misrepresentations. Semble — A delay of three months in filing a bill to be relieved on the above grounds, would be a bar to the relief. Heyman v. European Central Sail- way Company, M. E., Law Eep. 7 Eq. 154. 134. — H, a shareholder, by letter of his solici- tor to the company, repudiated shares, on the ground that he had been induced to take them by misrepresentation, took no further steps, pending a suit by F, another shareholder, to be relieved of his (Fs) shares, conducted by the same solicitor. That suit was compromised upon terms, inter alia, that a class of shareholders (including H and F) should be removed from the register; but there was no proof that H had authorised the solicitor to consent to that compromise. His name re- mained on the register till the winding-up order, which was four months after the date of the letter ; — Held that H was liable as a contributory. In re London and County General Association, Hare's case, Law Eep. 4 Chane. 503. 135. — M applied for shares on the faith of a fraudulent prospectus, and paid the deposit on application, but having ascertained that an im- portant statement in the prospectus was untrue, ho refused to pay the allotment money. He called on the secretary and said that he repudiated the shares, aJld spoke to the same effect at a meeting of shareholders held two months afterwards. He was never sued for the allotment money, but he received a circular from the company (to which he made no reply) stating that, pending proceedings against other shareholders, they did not intend to sue. He took no active steps, however, to have his name E. removed from the register of shareholders. . Nearly two years after the date of his application, the company was ordered to be wound up :— Held, that he was not liable as a contributory. Estates Investment Company, McNeil's case, 39 Law J. Eep, (n.s.) Chane. 822; Law Eep. 10 Eq. 603. Ashley's case. No. 132 ante, distinguished. 136. — It is not incumbent on a shareholder to suspect fraud or institute inquiries where all seems fair and comformable to the statutes. One who took shares in what turned out to be a bubble company, whose memorandum of association stated the capital at 105,000/,, of which 100,000i had been paid up, while in truth nothing had been paid, was : — Held, only liable to contribute such a pro- portion as would be due on his shares if the state- ment had been true. As the company could not have sued him, neither could the liquidator do so. Waterhouse v. Jamieson, Law Eep. 2 Se. App. 29." 137. — A person induced to take shares by mis- representation cannot repudiate the shares if he has attempted to sell them with full knowledge of the facts. In re The Hop and Malt Exchange and Warehouse Company, ex parte Briffffs, 36 Law J. Eep. (n.s.) Chanc. 320; 35 Beav. 273 ; Law Eep. 1 Eq. 483. [See also supra (D) 1, (E) 24.] (2) Where there was variance between prospectus and articles of association. 138. — Alteration of the articles of association of a company between an application for shares and their allotment : — Held, not to invalidate the allotment, such alteration being made under the authority of the Companies Act, 1862, and the objects of the company not being thereby altered. The prospectus of a company stated that the capital consisted of 16,000 shares, of 10/. each ; first issue 10,000 shares. A B applied for shares, which were allotted to him : — Held,, that A B could not resist being put on the list of contributories, on the ground that less than 900 shares had ever been taken. Shares were allotted to A B at a meeting of three directors, and before the nximber necessary to form a quorum had been determined :— Held, that A B could not, upon the company being wound up, insist that the allotment to him was invalid. Ee The English Rolling Stock Co., Lyon's case, 35 Beav. 646. 139. — A person induced to take shares by mis- representation cannot repudiate the shares if he has attempted to sell them after full knowledge of the facts. Ex parte Briggs, in re The Hop and Malt Exchange and Warehouse Company, Limited, 35 Law J. Eep. (n.s.) Chanc. 320 ; 35 Beav. 273 ; Law Eep. 1 Eq. 483. Semble — Where the prospectus of a company states that the articles of association may be seen, a person taking shares will be fixed with know- ledge of the contents of the articles, so far as they are not incompatible with the prospectus. Ibid. 140. — Shares in a limited company were allotted to a person before the memorandum and articles of association were in existence. These differed materially from the prospectus. Upon motion by the allottee, under the Companies Act, 1862, s. 36. Vice Chancellor Wood ordered his name to bo struck off the register of shareholders ; and on appeal, the order was affirmed by the Iiords Jus- tices. In re The Russian VyksounsJcy Iron-works COMPANY (E). 141 CMnpany, Limited, ex parte Stewart] 35 Law J. Eep. (n.s.) Chanc. 738 ; Law Rep. 1 Chane. 574 ; and see Webster's case, Law Eep. 2 Eq. 741. Ko. 146 infra. The Court has, under the Companies Act, 1862, s. 36, a discretionary jurisdiction to remove the names of members of companies from the register, Ibid. Mere lapse of time will not amount to ac- quiescence, nor attempts to sell shares ; bxit receiTing dividends or otherwise acting as a partner would bind the allottee. Ibid. 141. — S had been struck off the register of a joint-stock company, on the ground of a material variation between the memorandum and articles of association and the prospectus, on the faith of which the plaintiff had applied for shares and paid a deposit to the projectors who afterwards became directors. He then filed a bill to recover back the deposit : — Held, that such a bill was not sustainable unless the whole thing was a mere fraudulent contrivance to get money, and no such case being made by the bill, the demurrers of the company and the directors were allowed. Semble — An action would lie. Stewart v. Austin, 36 Law J. Eep. (n.s.) Chanc. 162 ; Law Eep. 3 Eq. 299. 142.— It is a good answer at common law to an action for calls, that the defendant was induced to become the holder of the shares by the fraud of the plaintiffs, that he has never received any bene- fit from the shares, and that within a reasonable time after he had notice of the fraud he repudiated and disclaimed the shares, and gave notice of tho repudiation thereof to the plaintifife. The Bwlch y PlwmLead Mining Company, Limited, v. Baynes, 36 Law J. Eep. (n.s.) Ex. 183 ; Law Eep. 2 Ex. 324. 143. — Where a shareholder takes shares upon the faith of statement contained in a prospectus, he is bound within a reasonable time to ascertain what are the contents of the memorandum and articles of association, and immediately to repu- diate his liability if he considers that there is such a variance between them as to entitle him to withdraw from his contract. In re The Madrid Bank, Wilkinson's case, 36 Law J. Eep. (n.s.) Chanc. 489 ; Law Eep. 2 Chanc. 536. 144. — A applied for shares on September 4, 1 866, in a limited company, which was not at the time incorporated, but had issued a prospectus. The company was subsequently incorporated, its memorandum and articles of association, which extended the objects of the company and the powers of the directors beyond what the pro- spectus had specified, being registered on Sep- tember 11 ; and the shares applied for were allotted to A on October 7. He paid a deposit on application, aud a further sum on allotment. He saw the memorandum and articles of association for the first time in the middle of May, 1866, and on September 27 he gave notice to the company that, on the ground of the variations between the prospectus and the memorandum and articles, he repudiated the sharte : — Held, by the Lords Jus- tices (affirming a decision of Wood, V.C.), that A, by his delay after knowledge of the facts, had waived any right of repudiation which he might otherwise have possessed. In re The Cachar Com- pany, Limited, ex parte Lawrence, 36 Law J. Eep. (N.s.) Chanc. 490; Law Eep. 2 Chane. 412. Lord Justice Cairns. — A person applying, on the faith of a prospectus, for ';hares in a limited company, and by his application authorising the entry of his name on the register as a shareholder, is not at liberty to trust to the statements of the prospectus, but is bound to examine the memoran- dum of association, and after the lapse of a reasonable time from the registration of the memorandum, will be held to have waived such examination. Ibid. 145. — Where there is such a variation between the prospectus of a company and the memorandum of association, as to entitle a person, who has taken shares upon the faith of the former, to rescind his contract, he must exercise that right without delay ; and he is bound, if ignorant of the contents of the memorandum of association at the time of the allotment of the shares, to -inform himself of their contents within a reasonable time. In re The Russian Vy/csounsky Iron-works Com- pany, Limitid, Kincaid's case, 36 Law J. Eep. (n.s.) Chanc. 499 ; Law Eep. 2 Chanc. 412. K applied for shares on the 18th of April, 1866, the company not being then registered. On the 29th of April the shares were allotted. He paid the money due upon allotment on the 11th of May. He also paid a call in April, 1866. In consequence of a variation between the prospectus and memorandum of association, he might have repudiated the shares. He stated that he was ignorant of such variation until after the 25th of April, 1866. He applied on the 18th of July, 186G, to have his name removed from the register of shareholders : — Held, that on the ground of delay, he was not entitled to such relief. Ibid. 146. (1)— T had a right to be struck off the re- gister of shareholders in May, 1866, when he first became aware of the character of the articles of association. He did nothing till after the decision of Stewards case (see No. 140 supra), on the 28th of June. Then he gave notice that he repudiated his shares ; the company replied, that they would oppose any motion by a shareholder to be struck off the register. He made no reply till the end of August; and before Michaelmas Term, the com- pany opened negotiations, which were ultimately broken off: — Held, that he had forfeited by his laches his right to be struck off. In re TheEussian Vyksounsky Iron-works Company, IAmitt,d, Taite's case, 36 Law J. Kep. (n.s.) Chano. 476 ; Law Eep. 3 Eq. 796. Semble — He would have been successful if ha had moved to be struck off immediately after tho decision in Stewarts case (No. 140 supra). Ibid. The company, in their subsequent correspon- dence, treated him as occupying a better position in relation to the question than the ordinary shareholders : — Held, that they wese not entitled to their costs. Ibid. 146. (2) — A shareholder in a company, who ap- plied for shares on the faith of the prospectus, uj. on 112 COMPANY (E). learning of a discrepancy between the prospectus and the articles of asspciation, applied for a return of his deposit upon that ground, but took no stops to have his name romovod for seven months, when ho applied to do so, upon other lately-discovered discrepancies: — Held, that he should not be re- moved from the register, that he could not be allowed to allege new discoveries after he was at arm's length with the company. In re The Bussian Vyksounsky Irun- works Vompany, Limited, White- Jwtise'x case, Law Eep. 3 Eq. 790. 147. — It is the bounden duty of a person who applies for shares upon the faith of the prospectus, to ascertain at the earliest possible moment that the memorandum and articles of association are in accordance with the prospectus. P, on the faith of a prospectus, applied for shares on the 27th of June, 1865, when he could have examined the memorandum and articles of association. In December, 1866, he first ascer- tained that there was what he considered to be a discrepancy between the prospectus and memoran- dum; and in January, 1867, he made an application to have his name removed from the register of shareholders : — Held, that he was too late to be entitled to relief. In re Barned's Banking Com- pany, Peel's case, 36 Law J. Eep. (n.s.) Chanc. 757 ; Law Rep. 2 Chanc. 674. 148. — A company's prospectus stated that the vendors of certain mines proposed to be worked by the company had agreed to sell them for 3,750^., and that the articles of association were ready for inspection.' The articles stated the true agreement by which the vendors were to receive 5,'!50l. Nearly four months after the allotment to him the plaintiff for the first time discovered the mis-state- ment, and asked for a return of the money paid on his shares. A correspondence ensued, and Uie bill was not filed till seven months after the allotment : ■ — Held, that the plaintiff had a right to be relieved from his shares. Langham v. The East Wheal Bose Consolidated Silver-Lead Mining Company, 37 Law J. Rep. (n.s.) Chanc. 263. PeeVs case (last case) distinguished. Ibid. 149.- — Where a petition for winding-up a com- pany has been presented, and subsequently the order for winding up is made upon it ; a share- holder cannot, in the interval between the petition and the order, file a bill against the company and directors for the return of his payments, and rectification of the register by removing his name, on the ground of misrepresentation on the prospec- tus. Kent V. Freehold Land and Brickmaking Company, 37 Law J. Rep. (n.s.) Chanc. 663 ; Law Rep. 3 Chan. 493. 150. — F, a shareholder of a company, who was entitled to have his name removed from the register of shareholders on account of misrepresentation in the prospectus, wrote to the secretary declining to have anything more to do with the company, and requiring the return of his deposit. The deposit was returned, but P's name was not removed from the register. A year and five months afterwards the company was ordered to be wound up. The directors had not express power to compromise disputes, but they had all powers which could be exercised by the company in general meetings : — Held, that F was not a contributory. In re The Canadian Sative Oil Company, Fox's case, 37 Law J. Rop. (n.s.) Chanc. 267 ; Law Rep. 6 Eq. 118. 151. — A person seeking to set aside a voidable contract to take shares in a company, on the ground of misrepresentation, must take . steps for that purpose immediately on discovering the misrepre-- sentation. Ogilvie v. Currie, 37 Law J. Eep. (n.s.) Chanc. 541. In June, 1865, shares in a joint-stock company were allotted to the plaintiff. Towards the end of the same year suspicions arose in his mind, and on the 30th of the following May, he became fully aware that the prospectus, on the faith of which ho had applied for the shares, contained misrepresen- tations ; but he took no steps to repudiate the shares till the 21st of July: — Held, that the delay was such as to disentitle him to repudiate the shares, either as between himself and the creditors of the company, or as between himself and the other shareholders. Ibid. A person who by his own laches has barred his right to repudiate a voidable contract to take shares in a company on the ground of fraudulent misrepresentation, cannot maintain against the directors a bill for damages founded on the same misrepresentations. Ibid. 152. — In May, 1864, a prospectus was circulated proposing to form a company described as a Finance Bank, and it stated eight objects, all more or less within the ordinary business of a banker. S applied for fifty shares in it, and paid deposit. On the 1st of Jude the company was registered, and fifty shares were allotted to S, on which he paid a further sum. In December the company was being wound up, and simultaneously S, having discovered that the objects of the memorandum of association greatly exceeded the objects of the prospectus, applied to the Court of Choncer remove his name from the register. This was opposed by one of the directors whose name was to the prospectus and who signed the memorandum, on the ground that, after six months' acquiescence, S was estopped from disputing his liability : — Held, that the objects of the memorandum went so far beyond the objects of the prospectus that S was entitled to have his name removed, unless estopped by his own laches; and that it was impossible for a director, ,by whose misrepresen- tations L had been deceived into applymg for shares, to set up any laches of S as a reason why he should not be removed from the register. Downes v. Ship, 37 Law J. Rep. (n.s.) Chanc. 642 ; Law Rep. 3 E. & L App. 343. 153. — R filed a bill against a company to be relieved of his shares, on the ground of misrepre- sentation. The company agreed with P, who also asked to be relieved of his shares on the same grounds, to be bound by the result of R's suit. The company was then wound up. Afterwards, a decree was made in R's suit in his favour (See Boss V. The Estates Investment Company, No. 1 26 supra) :— Held, affirming the decision of the M.R., 38 Law J. Rep. (n.s.) Chanc. 318, that P ought to be treated as if he had filed a bill before the winding- COMPANY (E). 143 up, and that his uamo must bo reinuvoJ from the list of ooutributories. In re Tke Estates Inoestmeut Company, I'awle's ease, 38 Law J. Rt'p. (n.s.) Chano. 412 ; Law Rep. 4 Okanc. 497. [See also supra (C) 24.] (3) In other cases. 154. — In February the directors of a banlc issued to the shareholders a circular representing the affairs as extremely prosperous. In May they resolved to issue the whole of the unissued shares, and sent circulai-s offering them to the existing shareholders at ZOl. per share, the amount to be paid on or before the 1st of October; if paid before that time interest at 51. per cent, to be allowed and the allottees to be entitled to a quarters dividend at the end of the year. A shareholder agreed to take twenty-two of these shares on the above terms, and paid the 301. per share. On the 16th September the bank stopped payment, and on the 24th a petition for winding- up was presented, on which an order was subse- quently made : — Held, by the L. J. Turner, affirm- ing the decision of V.O. Kindersley ; dissentiente, the L. J. Knight Bruce, that B was a contributory in respect of the twenty-two shares. Held, by the L. J. Turner, that the misrepresentations in the report could not be regarded as a proximate cause of B's contract to take the shares so as to enable him to avoid the contract. Held, by the L.J. Turner ; dissentiente, the L. J. Knight Bruce, that ' the contract was not that B should purchase the shares on a future day, but become the immediate proprietor of them, subject to the terms as to interest and dividends. Leeds Banking Compayiy , Barrett's case, 3 De Gex, J. & S. 30. 155. — ^Where an agreement for an amalga- mation between A and B companies was declared void and set aside by the Court : — Held, that a shareholder in A company, whose name had, in pursuance and on the faith of the void agreement, been placed by the companies, without com- munication to the shareholder, on the register of the B company, was entitled, as against the credi- tors of B company, to have his name struck off the list of conlributories of that company, though an order for the winding-up of B company had been made. In re Oriental Commercial Bank, Limited, ex parte Malyaster, 38 Law J. Eep. (n.s.) Chanc. 32 ; Law Eep. 7 Eq 273. 156. — A report of directors of a joint-stock company to their own shareholders is not made for outsiders, and a person who had been misled by such a report, and had applied for shares in con- sequence was : — Held, not entitled to repudiate the shares on the ground of misrepresentation. Jack- son T. Turquand, H. L. [See No. 163 infra.] (i) Persons who have held shares as trustees or executors. 157. — Shares in a joint-stock bank were pur- chased by a solicitor in the names of his brother and his clerk, who held the shares as trustees for him ; but there was no fraudulent object in thus concealing tli,o name of the real pui'cliascr. By the company's deed it was provided that no • trusts shoxild bo recognised; and no transfer of shares should be made without the consent of two directors. Upon the winding-up of the company, the official liquidators placed only the names of the two holders of the shares upon the list of con- tributories : — Held, that the beneficial owner was not liable to be placed upon the list. In re The East of England Banking Company, ex parte Bugg, 35 Law J. Eep. (n.s.) Chanc. 43. 158. — Certain reserved shares in a company were allotted in respect of the original shares, and the exeflutcrs of a deceased member accepted new shares allotted in respect of their testator's shares, though he had no power so to &o under his will: — Held, reversing the decision of Kindersley, V.C. 35 Law J. Eep. (n.s.) Chanc. 75 ; Law Hep. I Eq. 225, that the executors must be put upon the list of contributories in their individual capacity in respect of the new shares. Even assuming that under the deed of settlement the executors had no right to acquire or hold the shares in their own right, still their personal liability would follow on acceptance of- the shares unless the contract were set aside. In r«* The Leeds Banking Company, Dobson's case.' Feam- side's and Dean's case, 35 Law J. Eep. (n.s.) Chanc. 307 ; Law Eep. 1 Chanc. 231. 159. — The 30th section of the Companies Act, 1862, enacts that no notice of any trust shall be entered on the register of a company incorporated under the Act ; and, therefore, the' Court vnll not set aside an order made under the 14th section of the 1 & 2 Vict. c. 110, charging shares in a limited company, standing in the name of a judgment debtor, although he be owner of the shares as trustee only, and have no beneficial interest what- ever therein. Cragg v. Taylor, 35 Law J. Eep. (n.s.) Ex. 92 ; 4 Hurl. & C. 158; Law Eep. 1 Ex. 148. 160. — The directors of a banking company being_ empowered to allot shares to existing share- holders, offered certain shares to the executors of a deceased shareholder. The offer was sent to a person who was not one of the executors, but had been in the habit of conducting tlie afEiirs of the survivor of them, and it was accepted by him on his own account, but entered in the books in the names of the executors : — Held, that his acceptance did not constitute a valid and completed contract between such person and the company, and his name was removed from the list of contributories by the Lords Justices, in reversal of an order made by Vice Chancellor Kindersley. (36 Law J. Eep. (n.s.) Chanc. 40.) Bobsoris case, No. 158 supra, distinguished. In re The Leeds Banking Company, ex parte Mallorie, 36 Law J. Eep. (n.s.) Chanc. 141 ; Law Eep. 2 Chanc. 181. 161. — Where a person allows his name to be placed on the register of a joint-stock company, althoiigh he only holds the shares as a trustee, ho cannot say that he is wrongly there, and the fact that he is a trustee for the company makes no difference, for as between him and creditors he will be liable as a contributory, though as between him and the company he will be entitled to be indem- lU COMPANY (E). nified. In re Iinp!Hal Mercantile Credit Associa- tion, Barker's case, Law Rep. 3 Eq. 361. 162. — M, a shareholder in company N, held shares in company T, as nominee and trustee for company N, which was empowered to hold shares in other companies. Both companies were being wound up, and calls were made on M by company T : — Held that M was entitled to be kept in funds by company N to meet these calls, and M was de- clared entitled to stand as a creditor against com- pany N for the amount of the calls, though he had not paid them ; the liquidator of company N to pay M's dividends on such amount to the liquidator of company T. In re National Financial Company, ex parte Oriental -Commercial Bank, Law Eep. 3 Chanc. 791. 163. —Reserved shares in a joint-stock company were offered by the directors to shareholders and the representatives of deceased shareholders. "The shares if taken up, to be paid for on or before the 1st of October next. If paid before that time interest to be allowed," " the shares to be then entitled to one quarter's dividend at the end of the year." Held, that an acceptance of this offer constituted an executed agreement for a present interest in the shares, which made the acceptors liable to contri- bute, though the company was wound up before the day fixed for payment. Jackson and Holmes v. Turquand, the official manager of the Leedi Banking Company, 39 Law J. Eep. (n.s.) Chanc. 11 ; Law Eep. 4 iE. & I. App. 305. Held, also, that executors who accepted such shares, though in their representative character, were personally liable to be put on the list of con- tributories as shareholders in their own right. Ibid. 164. — In a joint-stock company, it is to be pre- sumed that the executors of a deceased shareholder siicceed to all the liabilities as well as all the rights of their testator. The deed of settlement is, thereTore, to be looked at, not to see whether it creates such liabilities, but whether it takes them away. The fact that, by the deed of settlement, executors are not entitled to the full rights of shareholders until 'registration, is no proof of an intention to limit their liabilities as executors. In re Agriculturist Cattle Insurance Company, Baird's case. Law Eep. 5 Chanc. 725. (j) Persons who have held shares on condition. 165. — S wrote to the secretary of a company saying that he was prepared to apply for 2,0U0' shares upon being assured that he should receive contracts for the supply of rolling-stock. Subse- quently an interview took place, after which the secretary wrote to S, saying that the board of directors had agreed that if S took the shares all calls upon them should be placed to account, ' instead of S being called upon to pay them, and tliat S should have the first contract. Upon this S made a formal application for 2,000 shares, en- gaging to pay " all future calls when required ; value in roUing-sfock as arranged ; " and he paid the deposit of II. per share. The shares wore alloltod, but no notice of the allotment was given to S, nor were any calls made upon him. The deposit of 2,000^. was afterwards returned : — Held, that no binding agreement was entered into by S to take the shares, so as to render him liable on the winding-up of the company as a contribu- tory. In re The Boiling-Stock Company of Ireland, Limited, ZH Law J. Eep. (n.s.) Chanc. 818; Law Eep. 1 Chanc 667. 166. — The deed of settlement of a company provided that the directors should allot shares not subscribed for in such manner as they should deem best. Three directors formed a quorum. A dele- gation of the power to two of their number and the manager was held to be invalid. In re TIk Leeds Banking Company, ex parte Cooper Howard, 36 Law J. Eep. (n.s.) Chanc. 42 ; Law Eep. 1 Chanc. 561. A in reply to a circular offering him some re- served shares, accepted them upon a condition. The directors had not their attention called to the condition, and passed no resolution in reference to it; they resolved, however, that shares remaining undistributed should be allotted by two of their number and the manager ; and shortly afterwards the manager wrote to A, saving that the shares accepted by him had been allotted to him. Upon the company being wound up: — Held, that A's name must be removed from the list of contribu- tories in respect of the shares in question, there having been no acceptance of his conditional offer, and there being no mutuality, inasmuch as the shares, if considered as allotted under the resolu- tion, had been improperly allotted. Ibid. 167. — A person who had only conditionally consented to act as a director, bnt who, at the only meeting of directors at which he attended, had joined in signing a cheque as director, was re- moved from the list of contributories, he never having applied for shares, and upon receiving notice of an allotment to qualify him as director, he having refused to receive them, or to act as a director. In re Feninstdar, West Indian and Southern Bank, Austin's case, Law Eep. 2 Eq. 435. 168. — E & Co. applied for 160 shares in a company, and paid a deposit of 10«. per share. This application was made after an agreement with the promoter of the company that they were to receive orders for goods for the use of the com- pany to the amount of 3,000Z. and that they were not to pay any further calls beyond 10s. per share on application and 30s. per share on allotment until all the goods should have been furnished and been paid for in cash. The shares were allotted to E & Co., who paid the 30s. per share, received the share certificates, and were registered as members of the company. No resolution was passed by the company relative to the contract as to paying for calls by supplying goods ; but a subseqxient offer to supply goods and to take a further amount of shares proportionate to the excess of any orders above 3,000^. was laid before tha company and considered by them. No orders had been given for goods when the company was ordered to be wound up : — Held, reversing the decision of one of the Vice Chancellors, that E & Co. were pro- perly placed upon the list of contributories in COMPANY (E). US respect of the ISO shares. In re The Bichmond Hill Hotd Company, Ellcingion's case, 36 Law J. Eep. (n.s.) Chane. 693; Law Rep. 2 Chanc. 511. QuKre — Whether, although contributories so far as regarded creditors, K & Co. on proof of the collateral agreement, would have a right to be in- demnified by the company. Ibid. 16d. — Where there is a conditional application for shares, but an unconditional allotment, there is no contract to take them, and it does not matter whether the condition was mentioned in the letter of application, so that it is proved to have come to the knowledge of the directors before the allot- ment. In re Universal Banking Company, Roger's case and Harrison's case, Law Rep. 3 Chanc, 633, 170. — S offered to take shares in a company in consideration of his being secured a contract for adding to and altering the company's premises. The directors passed a resolution to give him the contract, and on the faith of such resolution he sent a formal application for shares without con- dition, and paid the deposit. The shares were allotted, and notice of the allotment was sent to S, and his name was entered on the register ; but the certificates were never delivered nor was S required to pay any calls. The contract was never given to S on account of the winding-up of the company : — Held, affirming the decision of the Master of the Rolls, that there was a contract to take shares by S only on condition of his obtaining the building contract, that that condition had not been fulfilled by the company nor waived by S, and that, therefore, S's name must be removed from the list of contributories. In, re The Ald- horough Hotel Company, Simpson's case, 39 Law J. Eep. (n.s.) Chanc. 121 ; Law Rep. 4 Chanc. 184. 171. — B, being the local agent of an assurance Company, paid partly by salary and partly by commission on the shares disposed of by him, ap- plied in the usual form for shares in the company, at the same time proposing to pay calls from his commission on shares sold, the object being, by representing himself as a shareholder, to induce other persons to take shares in the , company. Shares were allotted to him accordingly, and he received and signed a receipt for the share certifi- cates. He afterwards attended some of the general meetings of the company, and signed proxies for others, but he never paid the deposit money on application, or the money payable on allotment, or any of the calls. Upon the winding-up of the company he was placed on the list of contributories ; and, upon appeal from the order of one of the Vice Chancellors, — Held, to have been properly so placed. In re The General Provident Assurance Company, lAmited, Bridget's case, 39 Law J. Rep. (k.s.) Chanc. 478 ; Law Rep. 5 Chanc. 805. 172. — A company borrowed 500Z. from A upon the following conditions : A was to apply for 100 shares of 51. each and to pay 5002., and if he should give a month's notice before a certain day, the company was to pay him back bOOl. and interest, and to cancel the shares. A gave the requisite notice and the 500i. was paid back to him, and he transferred the shares to a nominee of Digest, 1865-70. the company. The company had power to receive all the capital unpaid on any share, but had no power to cancel shares or to buy shares. The company was wound up nine years after the trans- fer of the shares:— Held, that A was a contribu- tory in respect of the 100 shares, and liable for the whole of their nominal amount. In re Patent Paper Marmfacturing Company, Addison's case, 39 Law J. Rep. (n.s.) Chanc. 568 ; Law Rep. 5 Chanc. 294. 173.— The articles of a limited company pro- vided that the necessary qualification for a director should be the being registered owner of 60 shares in the company. E was elected a director, signed an application for 60 shares, and drew a cheque for the deposit money thereon,both of which he deposited with the chairman, and secretary of the company, to await his decision whether he would qualify as a director. Meantime, he attended meetings of the board and did certain acts as a director. Sub- sequently, he refused to take any shares, and his cheque was returned to him :-Held, on the winding- up of the company, that he was not a contributory of the company. In re The Imperial Land Credit Company, lAmited, ex parte Eve, 37 Law J. Rep. (n.s.) Chanc. 844. 174. — The plaintiffs had applied for certain shares in a company and paid the deposits thereon into the company's bank to the account of the company. The prospectus stated that all deposits would be returned if no allotment of shares were made. No allotment was made. The plaintiffs, in behalf of themselves and all others who had paid deposits on application for shares, filed a bill against the company, certain of its creditors and the bank, alleging that the deposits had been paid upon a specific trust (namely, to be returned if no allotment was made), and had never belonged to the company, and praying that the bank might be restrained from paying over the deposits to any persons other than tlie depositors. Some of the creditors demurred to the bill for want of equity and misjoinder of plaintiffs : — Held, that the de- posits were assets of the company ; that no spe- cific trust or lien in favour of the plaintiffe had been constituted, and that their remedy was by action at law against the directors. Mbseliy v. Cressey's London and Burton Steam Cooperage Company, Limited, 35 Law J. Rep. (n.s.) Chanc. 360 ; Law Rep. 1 Eq. 405. Held, also, that the bill was not demurrable on the ground of misjoinder, if it could be sustained in other respects. Ibid. Demurrer allowed. Ibid. [And see Nos. 47, 61, infra.] (k) Shares held by other company. 175. — Under the Companies Act, 1862, a com- pany may hold shares in another company. The memorandum of association of a company provided that the object of the company should be, inter alia, to purchase or accept any obligations, bonds, debentures, notes and shares in any foreign or English company, and to negotiate the sale of any such securities : — Held, affirming the decision U m coMPimr - mediate payment of the composition payable to him, with a deduction therefrom by way of dis-. count in consideration of such immediate payment, the surety should be at liberty to repay him- self out of the trust fund the full amount of the composition payable to such creditor, without deducting the sum allowed to the surety for dis- count : — Held also, that this, created no such in- equality as to avoid the deed. Bissell v. Jones and another, 38 Law J. Eep. (n.s.) a.B. 2 ; 9 Best & S. 884 ; Law Eep. 4 Q.B. 49. 20. — A composition deed was expressed to be made between the debtors of the fijst part, a trustee of the second part, and the persons whose names were in the schedule thereto, thereinafter called the creditors, of the third part. The deed recited a proposal to pay the creditors a composi- tion by giving them-pfomissory notes, " which the creditors had agreed to take in full satisfaction and discharge of their debts ;" and^ recited also that the composition to be secured by the notes was payable to the non-assenting and non-executing creditors, and " such promissory notes had been deposited with the trustee to be held in trust for such last-mentioned creditors " : — Held, that thero was , in this deed no inequality other than that which is necessarily incident to a deed where as- senting creditors can bind non-assenting creditors; and that the deed was not bad by reason of it^ containing no provision compelling the trustee to tender the notes to the non-assenting creditors. Blumierg and others v. Rose and another, 35 Law J. Eep. (N.s.) Ex. 144 ; 4 Hurl. & C. 311 ; Law Eep. 1 Ex. 232. 21. — A debtor executed a deed of assignment of all his property and effects to a trustee for the bene- fit of all his creditors, but no creditor executed it, and the deed was not stamped. Subsequently, at a meeting of creditors, a resolution was passed, in pursuance of which a second deed was prepared and executed, to which the trustee of the first deed was a party. By this deed, all the debtors estate and effects were assigned to trustees, and amongst other trusts was a trust out of the pro- duce thereof to pay the costs of the former deed andof the present deed, and then to satisfy the debts of the creditors ratably, subject to certain provi- sions for verifying the amount thereof; and there was also a proviso that no former dividend should be disturbed ; and. it was further provided that if there was anything therein not authorised by the provisions of the Bankruptcy Act, 1861, such un- authorised thing shoiild be obligatory on those persons only who should have assented in writing to the deed : — Held, first, that the first deed, not having been executed by any of the creditors, was to bo considered in the nature of an escrow, and the event in which it was to take effect not having occurred, it did not invalidate the second deed. Secondly, that, though the second deed might con- tain provisions which, if made binding upon non- assenting creditors, would .vitiate it as being un- reasonable, the clause which made those provisions binding only upon assenting creditors deprived them of their unreasonableness, and the deed, being executed honk fide, must be sustained. Ex COMPOSITION BEEDS (A). 171 parte Somervitle, in re Treseider, 36 Law J. Hop. (n.s.) Bankr. 1 ; Law Eop. 1 Chanu. 21. , 22.^-A deed of coraposition was made between a debtor and the several persons who subscribed the schedule thereto, " on behalf of themselves and all and every other the creditors " of tlie debtor, and shewed a clear intention that all creditors should be equally benefited : — Held, that all the creditors were parties, that there was no inequality, and that the deed was good. M'Laren T. Baxter, 36 Law J. Kep. (n.s.) O.P. 247 ; Law Eep. 2 C. P. 559. 23. — ^A composition deed under the Bankruptcy Act, 1861 (containing a covenant with all the cre- ditors for paying the composition, and a release by the parties -of tho first part) was expressed to be made between " the several persons whose names were subscribed and seals affixed, creditors of the debtor on behalf of themselves and all and every other the creditors of the debtor of the one part, and the debtor of the second part : "-^Held, following the last case, McLaren v. Baxter, 36 Law J. Eep. (n.s.) C.P. 247, that all the creditors were parties to the deed, and could sue on the covenant, and that there was, therefore, no inequality. Isaacs V. Green, 36 Law J. Eep. (n.s.) Ex. 253 ; Law Eep. 2 Ex. 352. 24. — A compositiondeed was expressed to be made between the debtor of the one part and all his creditors of the other, and after reciting that the debtor had agreed to pay a certain composition ' by instalments, which the creditors had agreed to accept, it contained a covenant by the debtor with his said several creditors, and each of them to pay the composition, in consideration of which the creditors released him from all actions, debts, con- tracts, agreements, &C.,. reserving the rights which individual creditors might have against other per- sons : — Held, upon the authorityof iay v. Moltram, 19 Com. B. Eep. N.S. 419 ; 12 Jur. N. S. 6, that this was a good deed urder sect. 192 of the Bank- ruptcy Act, 1861. Semble— A creditor could sue on the covenant, although not named in the deed. Greity V. Gibson, 35 Law J. Eep. (n.s.) Ex. 74 ; 4 Hurl. & 0. 28 ; Law Eep. 1 Ex. 11. 25. — ^A composition deed under sect. 192 of the Bankruptcy Act, 1861, was expressed to be made between the debtor of the first part, and " all the creditors" of the debtor of the second part, whereby the debtor covenanted severally with the parties of the second part to pay a composition, in considera- tion of which the parties of the second part re- leased the debtor from all debts, &c. : — Held, on the authority of Gresty v. Gibson, [see the last case], that the deed was valid, and bound non- assenting creditors, since, though not named by name as parties, the description was such that they could be ascertained, and they could, there- fore, sue on the covenant. Reeves and another v. Watts, 35 Law J. Eep. (n.s.) Q. B. 171 ; 7 Best & S. 523 ; Law Eep. 1 Q.B. 412. 26'. — A deed under the Bankruptcy Act, 1861, made between the debtor, a surety,, and " the per- sons whose names were thereto subscribed, and all others the creditors of the debtor," after reciting •■that the debtor Was indebted "to the said several creditors in the several sums of inoneysot opposite tlieir respective names in the schedule thereto," and that it had been agreed by the statutory ma- jority "of the said several creditors" to accept a composition in full satisfaction of their respeotiva debts, — witnessed that, in consideration of the pro- missory notes of the debtor and the surety for the payment of the composition "on the respective sums of money as aforesaid," they, " the said cre- ditors, parties thereto," released to the debtor all actions, suits, debts, claims and demands, and ac- cepted the composition in satisfaction of " the debts due to them specified in the schedule." The debtor and surety also covenanted with " each and every of the creditors, parlies thereto, to pay the com- position upon their respective debts as aforesaid : " — Held, affirming the judgment of the Court of Exchequer, 36 Law J. Eep. (n.s.) Ex. 25 ; 4 Hurl. & C. 613 ; Law Eep. 2 Ex. 21, that the release was absolute, and that there was no inequality, seeing that neither the release nor the covenants were confined to the creditors whose debts were specified in the schedule. Tetley and others, 36 Law J. Eep. (n.s.) Ex. 158 ; Law Eep. 2 Ex. 275. Held, also, that a plea of the above deed (which was executed and registered after the date of the writ), pleaded as a plea to the further maintenance of the action, was a good answer, not only to the debt, but to the claim for damages and costs con- sequent upon the detention of the debt. 27. — A letter of licence, by deed made between a debtor and his assenting creditors, whereby, after a recital that the debtor is indebted to the said creditors in several sums which he is unable to pay, the creditors grant licence to the debtor for twelve months to be free from suit or molestation in person or otherwise, in respect of any debt due from him to the said creditors, and covenant with the debtor that they will not, during that time, sue him in respect of any debt due from him solely or jointly with any other person, and that the deed may be pleaded in bar and discharge of any action, suit, judgment, or execution, is not a deed capable of binding non-asseuting creditors of the debtor by force of the Bankruptcy Act, 1861. Held, per Kelly, O.B. and Martin, B., that such a deed, as it contains no provision for the benefit of the creditors, is unreasonable, and therefore not binding on a non-assenting creditor. Held, per Martin, B.,'Channell, B. and Pigott, B., that a letter of licence does not come within the description given either in s. 192, ors. 194 of the Bankruptcy Act, 1861. Latham v. Lafone, 36 Law J. Eep. (n.s.) Ex. 97 ; Law Eep. 2 Ex. 116. 28. — A composition deed, by virtue of which the statutory majority of creditors agreed to accept a composition, payable by instalments, at the ^nd of two, four and six months respectively, contained a proviso empowering the trustees to pay those creditors whose composition did ncJt exceed Wl. in one sum at such time as they should think fit: — Held, that this provision was unequal and unPOMSonable. Thompson and ethers v. Knight, 36 Law .1. Rep. (n.s.) Ex. 30 ; 4 Hurl. & C. 622 ; Law Eep 2 Ex. 42. z 2 172 COMPOSITION DEEDS (A). 29. — A plea set out a composition deed, under the Bankruptcy Act, 1861, containing a covenant by the creditors, limited by each creditor to his own acts, to indemnify the debtor from payment, of any sum of money relating to any bill of exchange, promissory note, or other security or securities which the debtor might have given to the creditors respectively : — Held, that the cove- nant invalidated the deed, and that the defect was not cured by an averment in the plea that there were no creditors other than assenting creditors, to whom the covenant could apply. Oldia v. Armston, 36 Law J. Eep. (n.s.) Ex. 181 ; Law Eep. 2 Ex. 406. (ii) Amount and nature of compositio-n. 30i — A composition deed contained a covenant by a debtor to pay his creditors one shilling in the pound, and a release, by them conditional on his performing his covenant. The debtor was in reality able to pay his creditors seven shillings in the pound. The deed was duly registered under the Bankruptcy Act, 1861, s. 192, and the Bank- ruptcy Amendment Act, 1868. The requisite majority in number and value of the creditors assented. The one dissentient was a judgment creditor who was prevented by the deed from levying execution. For more than seven months he took no steps, but eventually moved to cancel the registration of the deed: — Held, that whether the assenting creditors did or did not know that the debtor was able to pay seven shillings in the pound, the deed was fraudulent and could not bind a non-assenting creditor. Held also, that nothing having been done or omitted by the non-assenting creditor, by which the debtor or any other person had been or could be prejudiced, mere delay was not laches ; and that, the deed being in the nature of a record of the Court, the registration must be cancelled, and the judgment creditor be allowed to issue execu- tion. Ex parte Williams, in re C. A. Pullen, 39 Law J. Eep. (n.s.) Bankr. 1 ; Law Rep. 10 Eq. 67. 31. — A debtor covenanted, by a deed which contained no assignment of property, to pay his creditors a composition of 2s. 6d. in the pound, amounting to IS21., when he had at the time in his possession property which he had purchased a short time previously for 6761., and for part of which, sold by him after the date of the deed, he received 120^. in cash and 180^. in bills. An order of Mr. Commissioner Winslow, granting leave to a judgment creditor, who had not as- sented to the deed, to issue execution, notwith- standing the execution of the deed by a suificient majority of the creditors, and its registration, was upheld by the Lords Justices, on the ground, that, under the circumstances, the assent of the majority must be considered to have been obtained, either by mala fides or from motives of charity, and that in neither case was the deed binding on dissen- tients. In re Cowcn, ex parte Foster, 36 Law J. Eep, (N.s.)_Bankr. 41 ; Law Eep. 2 Chanc. 563. The majority of creditors are constituted, by section 192, the judges as to the propriety of the arrangement with the debtor ; and the Court will not sit in review of the mere amount of the com- position which the majority have fairly thought it reasonable to accept. But the Court will not hold the minority bound by an arrangement which appears not to be substantially bon4 fide, and for the benefit of all the creditors. Ibid. 32. — A deed of arrangement under the 192nd section of the Bankruptcy Act, 1861, containing no cessio bonorum, but postponing payment of the creditors' debts for two years, and giving to the creditors no advantage beyond a covenant to pay in full at the expiration of that period, is not ne- cessarily invalid ; and where there is no fraud or inequality among the creditors, the Court will not judge of the reasonableness of the deed. At the date of the deed the company was still going, but was shortly afterwards ordered to be wound up : — Held, reversing the decision of Wood, V. C, 36 Law J. Eep. (n.s.) Chanc. 718 ; Law Eep, 4 Eq. 666, that as the deed provided only for ex- isting debts, the future calls were not within its scope, and the official liquidator was not precluded by the deed from proceeding against the debtor. In re The Sichmond Hill Hotel Company, King's case, 38 Law J. Eep. (n.s.) Chanc. 541 ; Law Eep. 3 Chanc. 10. 33. — To a declaration on the common counts the defendant pleaded a composition deed under statute 24 & 28 Vict. c. 134, s. 192, setting it out verbatim. The deed purported to have been made on the 14th November, 1865, between the several persons whose names were subscribed and seals afSxed in a schedule, being creditors of the debtor, on behalf of themselves and all and every other the creditors of the debtor of the -first part, and the debtor of the second part, and recited that the debtor was indebted, &c., and had agreed to pay a composition of 2«. in the pound, such com- position to be paid to all and every the creditors of the debtor, whether executing the deed or not, on the 21st November inst., and witnessed that in pursuance of the said agreement, and in considera- tion of the paymefit of such composition to the said several creditors, the parties of the first part accepted the composition in satisfaction of their debts, and released the , debtor ; and it was lastly agreed that those presents were intended to operate as a deed of composition within the provisions of the Bankruptcy Act, 1861, and that so soon as the statutory majority should have executed or in writing assented to it, it was intended that it should be registered under the 192nd section, in order that the debtor might obtain the protec- tion of the Court, as provided by the 198th section. After the usual covenants in respect of the assent to the deed of the statutory majority, its attestation and registration, the plea concluded by alleging that on the said 2l8t November, 1865, being after action, the defendant was ready and witling and then tendered and offered to pay to the plaintiff the composition, and that he refused to receive it ; readiness and willingness to pay it, and that the defendant brought it into Court : — Held, on demurrer — 1. That the plea was good, and stated a defence COMPOSITION DEED (A). 173 Brising after action within tho meaning of statute 15 & 16 Vict. c. 76, ». 68, and that no formal cornmencement in the case of such plea is neces- sary. 2. That if the defence had heen so framed as to embarrass the plaintiff, he should have apphed to a Judge at chambers to strike out or amend the plea ; but that such matter is no ground for demurrer. 3. That the deed was good, and the provisions of it reasonable, both in respect of the remedy of the creditors upon the deed, and the way in which the composition was secured to them. 4. That the recital of the agreement by the debtor to pay the composition amounted to a covenant. 6. That it was competent to any creditor to sue upon the deed. 6. That there was nothing unreasonable in the provision that the composition should be payable within 28 days from the execution of the deed, although statute 24 & 26 Vict. u. 134, b. 192, cl. 4, allows that nimiber of days for registration. Brooks \. Jennings, H. & B. 414 ; Law Rep. 1 C. P. 476. 84. — Where, under a deed of arrangement, it appears that the debtor retains for his own bene- fit part of his property, the Court will, on behalf of the dissenting minoritj', closely inquire into tho bona fides of the bargain made with him by the majority of his creditors. An ofScer in the army, being indebted in an amount which would have been covered by the price of his commission if sold, retired on half -pay, thereby receiving about half the value of his commission, and executed a composition deed to pay 10«. in the pound, which was assented to by the statutable majority of his creditors. No meeting of creditors took place : — Held, that the deed was not binding upon the dissenting minority. In re Deacon, 38 Law J. Rep. (n.s.) Bankr. ; 3 Law Rep. 4 Chanc. 87^ (iii) Bona fides. [See last case.] 35. — To a plea, setting up a composition deed, the plaintiffs replied, on equitable grounds, that the deed was not executed or assented to by them ; . that the defendant at the time the deed was made was in possession of available assets sufBcient for the payment of a much larger composition than that agreed upon ; that the agreements in the deed were not bonft fide made for the equal benefit of all the creditors ; that the said agreements were made solely from motives of benevolence and kindness to and for the defendant, and for his sole and only benefit, and without any just regard to the rights or interests of the other cre- ditors, and to give the defendant' a release and discharge from his debts on the payment of the composition ; that such composition was only a nominal composition, and wholly dispropor- tioned to the assets of the defendant which were available to the payment of the said creditors, their debts and demands: — Held, on the autho- rity of In re Cowen, ex j^arte Fostir, [see No. 31 supra], and .Tgreeing with that decision (Han- nen, J', hsesitante) that the replication was good and an answer to the plea. Hart and anotlier v. Smith, 38 Law J. Rep. (n.s.) Q. B. 25 ; 9 Best & S. 563; Law Rep. 4a.B. 61. 36. — To a declaration containing the common money counts, the defendant pleaded that by a composition deed entered into by himself and four-fiflhs in number and value of his creditors, under the provisions of an Act of the Legislative Council of New South Wales, he was released from all actions, &c., and that the deed had been executed by one of the plaintiffs in respect of the cause of action in the declaration mentioned. A replication upon equitable grounds, after setting out the deed, alleged that the defendant agreed with certain of the creditors, other than the plain- tiffs, in consideration of their respectively execu- ting the deed, to give them certain pecuniary and valuable benefits and preferences over the other creditors ; that thereby he induced the said credi- tors to execute the deed, which execution was procured without the knowledge or consent oT the plaintiffs, and in fraud of the deed and of the plaintiff: — Held, upon demurrer to this replica- tion, that it was an answer to the plea, inasmuch' as a composition deed cannot be binding, if it is not executed in good faith between the debtor and his creditors. Dauglish and others v. Tennent, 36 Law J. Rep. (n.s.) a. B. 10 ; 8 Best & S. 36 ; 1 Law Eep. 2 Q. B. 49. (iv) Provisions for payment of costs, ^-c. 37. — A provision in a deed of assignment of a debtor's estate to trustees for the benefit of his creditors, that the trustees shall stand possessed of the estate upon trust in the first place to de- fray the expense of preparing and registering the deed and procuring the assents of the creditors to it, is not unreasonable so as to prevent the deed from binding a non-assenting creditor, the condi- tions of the 192nd SHCtion of the Bankruptcy Act being otherwise complied with. So there is nothing unreasonable in empowering the trustees to determine the amount of dividend to be from time to time paid to the creditors, and pay such dividend in such place and in such man- ner as they shall think fit. Jacobson v. La'mert, 36 Law J. Rep. (n.s.) Ex. 221 ; Law Eep. 2 Ex. 394. 38. — The defendant entered into a deed of ar- rangement which recited that by a previous deed between the defendant, his then creditors, and inspectors, these creditors granted him, during three months from the execution of the deed, licence to carry on his business of proprietor of a colliery, and he covenanted with the inspectors to execute such assurances ae they should think necessary to raise money upon the security of the colliery for the purpose of carrying on and work- ing it, and it was agreed that the inspectors should have power to mortgage the colliery, and should apply the proceeds of working it, in the first place, in payment of the costs of the deed, and all costs incidental to the arrangement with the creditors, and of and incidental to the carrying out of the trusts and provisions, thereof. It further recited 174 COMPOSITION DEEDS (A). that expenses had boon incurred, with the sanction of the inspectors, in carrying out the trusts and provisions of the deed, in defending proceedings by creditors after it had been registered, and that the costs of certain of these proceedings had been advanced and had not been re-paid to the person advancing them. The defendant then, by the second deed, assigned his property in trust for the benefit of his creditors, " after payment of the costs of the former deed, and all costs referred to as having been incurred by the inspectors, or with their sanction, for the benefit of the defendant's estate " :^THeld, first, that although some of these costs appeared to have been incurred after the term of three months mentioned in the first deed, there was notliing. to shew that the working of the colliery under inspectorship was to stop at the end of this term; secondly, that the provision for the full payment of these costs in the second deed did not render it invalid, as it was a provision to which the creditors might reasonably have as- sented, as there was, at any rate, ground fol con- tending that the effect of the former deed was to create an equitable lien on the defendant's estate for the amount of these costs. Mtzpatricfi v. Bourne, 37 Law J; Eep. (n.s.) Q. B. 265; 9 Best & S. 187 ; Law Eep. 2 Q. B. 446. (v) Generally as affecting creditors' rights. 39. — A clause in a deed of arrangement under ' the Bankruptcy Act, 1861 , rendered it lawful for the trustees to require debts to be verified by solemn declaration, and subjected those creditors who should not comply with such requisition within two months to the loss of all benefit, dividends and advantages under the deed, — their dividends to fall into the general estate for the benefit of the creditors not making default : — Held (dubitante Martin B.), that this clause was unreasonable and JDvalidated the deed. CUddings and another v. Penning, 35 Law J. Eep. (n.s.) Ex. 191; 4 Hurl. & C. 498 ; Law Eep. 1 Ex. 325. 40. — By a deed of assignment of a debtor's property to trustees for the benefit of his creditors, it was provided that the trustees might sell on credit to the debtor, without security, and that if they paid dividends without notice of any par- ■ticular creditor, the dividends were not to be disturbed: -—Held, that such provisions were reasonable, and did not invalidate the deed. Grecnberg r. Ward and another, 35 Law J. Eep. (n.s.) C. p. 316 ; Law Eep. 1 C. P. 585. 41. — By a deed purporting to be made according to the Bankruptcy Act, 1861, s, 192, two partne^rs assigned their joint and separate estate to trustees upon trusts, for the distribution and management of the estate, with power, at their discretion, to carry on the business of the late firm, to enter into contracts for the sale of the estate and good- will, to make such advances out of the estate or the proceeds of it as should seem to them expe- dient, to employ the partners or either of them to assist in managing and carrying on the business, during such period as the trustees should tbink fit to carry it on, and a provision " that the trustees or trustee should be indemnified, protected and saved harmless by or out of the joint and separate estates and effects of the partners, and each of them, or otherwise, by the creditors, according and in proportion to the amount of their respective debts against or in respect of all transactions and personal engagements, matters and things whatso- ever which they or any of them should lawfully do, or cause to be done, or enter into, or order, or direct, in or concerning the management or eon- duct of the businesses of the partners, by virtue of or in pursuance of the deed ; and that the credi- tors, and every of them, their and his heirs, ex- ecutors, administrators and assigns, should and would, from time to time and at all times, allow and confirm the same in all respects " : — Held, that the deed was not binding upon a dissenting creditor as section 192, of the Bankruptcy Act, 1861, did not include deeds which not only dealt with the estate of the debtor, but imposed a per- sonal liability on non-assenting creditors. Wing- field and others v. Nicholson, 37 Law J. Eep. (n.s.) Q.. B. 155 ; 9 Best& S. 261 ; Law Eep. 3 Q. B. 450. 42, — A debtor made an assignment of his pro- perty to trustees for the benefit of creditors. It was provided by the deed, that any creditor not assenting thereto within three months should be excluded from the benefit of the deed, and also that it should be lawful for the trustees to require the amount of any debt to be verified by solemn declaration, or in such manner as to them should seem .expedient: — Held, that this last provision rendered the deed void against a non-assenting creditor. Hickmott v. Simmonds, 35 Law J. Eep. {■s.s.) Chanc. 680 ; Law Eep. 2 Eq. 462. 43. — By a deed expressed to be made between the defendant of the first part, E Gr, on behalf and with the assent of the creditors of the defen- dant parties thereto, of the second part, and the several persons, &c. "who are creditors of the defendant," of the third part, the defendant cove- nanted with E G and all his said creditors to pay a composition of -Ss. in the pound, by two instal- ments, and assigned all his estate and effects unto the. said E G, with a proviso that until default should be made in payment of the instalments, the defendant should hold and enjoy the estate and effects thereby assigned, and deal with the same without interruption from the said E G or ■ any of the creditors ; and with another proviso that the said E G might at any time enter on the defendant's premises and take an inventory of his effects. There was a further proviso, that in case of default in paying the instalments, the estate should be administered as if the defendant had been adjudicated a bankrupt. In consideration of this, the creditors released the defendant from all debts, &c. : — Held, that it was no valid objec- tion to this deed that while it professed to assign all the debtor's effects to the trustee, it at the same time provided for the debtor remaining in possession of his property and dealing with it as he. liked. For the 7th condition of the 192nd section does not mean that the debtor's property must be given up ; but that if there is property to bi^ given up, it must be given up, according to the COMPOSITION DEEDS (A). 175 deed in order tliat the non-assenting creditors may be bound. Held, also, that the deed was not bad for not reserving the claims against sureties, as it did not appear that there were sureties ; or for the release being in consideration of the debtor's covenant only ; and that as the release was absolute, a plea setting up the deed was not bad for not averring a tender of the composition. Johnson v. Barvatt, 35 Law J. Eep. (tr.s.) Ex. 15 ; 4 Hurl. & C. 16 ; Law Eep. 1 Ex. 66. 44. — In a trust deed, expressed to be made be- tween a debtor and his creditors, the debtor cove- nanted to pay his creditors a composition upon the amount of their respective debts. The creditors, in consideration of the covenant, &c., released the- debtor " from all cause and causes of action and suit, contracts, damages, claims and demands whatsoever, which .they then had, or at any time or times thereafter should or might have or be entitled to against the debtor, by reason- or on accoimt of any debt or debts, sum or sums of money, bills, bonds, notes, securities for money, contracts, provisoes, agreements, reckonings, ac- counts, dealings, or transactions whatsoever, from the beginning of the world to the date of the deed" : — Held, that the release must be restrained by the words of the whole instrument, and would apply only so as to relieve the debtor from debts and provable claims which had accrued at the time of the execution of the deed ; and therefore that the deed was not unreasonable. Huzelgrove v. House, 35 Law J. Hep. (n.s.) Q. B. 1 ; Law Eep. 1 0. B. 101. - 45. — A provision in a composition deed that the debtor shall pay the composition agreed on " as soon as the trustee shall certify that the deed has been executed or assented to by the statutory majority of the creditors," is unreasonable, as it renders necessary for the acquirement of the non- assenting creditor's rights under the deed another condition, in addition to those on which his obli- gations arise under the statute. Bowlnois and another v. Mann, 35 Law J. Eep. (n.s.).Ex. 68; Hurl. & C. 9 ; Law Eep. 1 Ex. 28. 46. — A clause in a deed of assignment under the Bankruptcy Act, 1861, by which the trustee is empowered to require any creditor of the debtor to verify the nature and amount of his debt, with full particulars, by statutory declaration, " or otherwise as the trustee may think fit," has not the effect of depriving the creditor who fails to produce proof to the satisfaction of the trustee of all benefit under the deed, and such clause is therefore reasonable. The statutable majority of creditors have power to bind the minority in giving a discretion to the trustees under the deed as to the mode in which they shall manage the debtor's estate, and as to the time when and the manner in which they shall sell it. The judgment of the Court of Common Pleas, 34 Law J. Eep. (n.s.) C. P. 198, reversed. Coles V. T journeyman tailor, to his nephew, who carried on the same trade and under the same name within- the proscribed limits. Upon bill filed by the pur^ chaser: — Held, that this was a breadi of the- covenant, and injunction granted accordingly. Newling v. Dohdl, 38 Law J. Eep. (n.s.) Chanc. 111. 6. — A restrictive covenant that the covenantor will not carry on a. certain business in his own name or that of any other person is not violated-' by his acting as manager'at a weekly salary to another person carrying on the same business;. MUn Y. Taylor, 39 Law J. Eep. (n.s.) Chanc. 627 ; Law Eep. 10 Eq. 52. (2) Me of beer. 7'. — Upon a purchase of land from the plain- tiffs, the defendant by the deed of conveyance- Covenanted with the plaintiffs that the land con- veyed and the buildings thereon should not be- used as- a " beerhouse, inn, or public-house for the- sale of spirituous liquors." Subsequently the de- fendant obtained a licence for the sale of beer nott to be drunk on the premises, and commenced the sale of beer by retail in pursuance of such licence" in a house erected on ttie land : — Held, on a mo^ tion for injundion, that the sale of beer by retail' not to be drunk on the premises was nota broach' of the defendants' covenant. The London and North'Western Sailway Company v. Garnett, 39' Law J. Eep. (n.s.) Chanc. 25 ; Law Eep. 9 Eq. 26. 8.— A person, by taking out an Excise licence'- for the sale of beer not to be druuk on the pr&- B B.-2- 212. COVENANT (B). mises, does not break a covenant not to use hia house as a public-house for the sale of beer. Fease v. Coatee, 36 Law J. Eep. (n.s.) Chanc. 57 ; Law Bep. 2 Eq. 688. 9. — A covenant by deed executed in 1854, not to carry on upon certain premises the " trade or calling of an hotel or tavern keeper, publican, or beer-shop keeper, or seller by retail of, wine, beer, spirits, or spirituous liquors : " — Held, not to be violated by a grocer selling wines and spirits across the counter by retail, in bottles only, and not to be consumed on the premises, under a licence granted under statute 24 & 25 Vict. c. 21, s. 2, on the ground that at the date when the covenant was entered into, this would not have been a selling by retail. Jcynes v. Bone, 39 Law J. Eep. (n.s.) Chanc. 405.; Law Eep. 9 Eq. 674. (3) As to user of land. 10. — The owner of building ground upon which houses of uniform height and depth had been built, sold it in plots, and conveyed each plot in fee, subject to a perpetual rentcharge ; and each purchaser covenanted with the grantor that there should be no trees nor any building whatever in the garden that should exceed the level of the parlour floor : — Held, affirming the decision of the Master of the Eolls, 35 Law J. Rep. (n.s.) Chanc. 190 ; 35 Beav. 243 ; Law Rep. 1 Eq. 499, that it was a breach of the covenant to erect any building above the prescribed height extending beyond the back of the house, though the ground upon which such building was erected had never been used as a garden, Held, also, that the plaintiff had not waived his right to complain of such breach of covenant by a passive acquiescence in other breaches not mate- rially affecting him. Held, also, that the owner of one plot was en- titled to maintain a suit for breach of covenant against the owner of another plot, without making the other owners parties. Western v, M'Dermot, 36 Law J. Eep. (n.s.) Chanc. 76 ; Law Eep. 2 Chanc. 72. 11. — A landowner who was covenanted in the usual form that neither he nor his " assigns " shall build upon his land, is discharged from his cove- nant after selling the premises to a railway com- pany under their compulsory powers, as the com- pany become assignees of the land, not by the voluntary act of the former owner, but by compul- sion of law. In an action of covenant by lessee against lessor it was alleged and admitted on the record that the defendant had covenanted that neither he nor his " assigns " should or would, during the term, per- mit to be built any messuage, &c., on a paddock fronting the demised premises ; that the paddock had been purchased by a railway company, and conveyed to them by the defendant under the compulsory powers of their special act, and that they had erected buildings on the ground contrary to the covenant. It was also stated that the buildings, &o., were not such as it was necessary or compulsory for the company to erect on the land in question : — Held, that the defendant was not liable, as the railway company could not be taken to be assigns within the contemplation of the parties to the covenant, and it made no dif- ference whether the company were required or empowered to take the land. The jjlaintiff was, therefore, one of a class of persons injured by_ the construction of the railway, for whom the legisla- ture had provided no compensation. Saili/ v. Sir C. De Orespigny, 38 Law J. Eep. (n.s.) Q. B. 98 ; 10 Best & S. 1 ; Law Eep. 4 Q. B. 180. ((f) For immordl pwrpoie. 12, — The lessee of a house which had been notoriously used for many years as a brothel, as- signed his term absolutely to a purchaser for value, knowing that the rent and premium would be paid out of the profits of the immoral trade carried on there. Among the lessee's covenants contained in the original lease was a covenant to deliver up the premises in good repair at the expiration of the term, and also not to permit the same to be used as a brothel. At the termination of the lease the lessor compelled the lessee to pay a sum of 65?. for dilapidations and certain arrears of rent. The lessee submitted to the payment, and claimed over against the estate of his assignee under a covenant contained in the assignment for indemnity in re- spect of all lessee's covenants : — Held,' that the assignor was not entitled to recover, the whole transaction and every obligation arising out of it being tainted with immorality. Smith v. White, 35 Law J. Rep. (n.s.) Chanc. 454 ; Law Eep. 1 Eq. 626. (B) Covenants etinning vtith the land. 13. — 'Ifhe owner of freehold and copyhold lands adjoining each other surrendered the copyhold lands to a grantee, who covenanted for himself, his heirs and assigns, with the grantor, his heirs and assigns, that the grantor should have full power to mine, under his own freehold lands without paying com- pensation for any injury which might be sustained by the copyhold portion and buildings erected thereon, in consequence of the removal of the sup- port. The plaintiff was the assignee of the grantee, and the defendant was the assignee of the grantor ; and compensation was sought by the plaintiff for damage resulting from the sinking of his land, in consequence of the mines excavated under the de- fendant's land : — Held, that the grantee had no power to disclaim the right to compensation so as to bind the lord of the manor without his consent, and that the covenant did not run with the land. Bichards v. Harper, 35 Law J. Eep. (n.s.) Ex. 130 ; 4 Hurl. & C. 56 ; Law Eep. 1 Ex. 199. Semble — ^Per PoUock, C.B., if the land had not been copyhold, the grantee's covenant would have run with the land. Per Martin, B. and Pigott, B. secus. 14. — A demise of certain premises for the pur- pose of being used as a beer-shop and public-house, contained a covenant by the lessor, for himself and his assigns, not to Tsuild, erect, or keep, or be in- terested or concerned in building, erecting or keep- ing, any house for the sale of spirits or beer within half a mile of the demised premises: — Held, that the covenant did not run with the land , and could COVENANT (C), (E). 213 not therefore be sued upon by an assignee of the lease. Thomas v. Hayward, 38 Law J. Rep. (n.s.) Ex. 175 ; Law Eep. 4 Ex. 311, 15. — Action brought by the plaintiff as lessor against the defendant as assignee of a lease by deed, upon a covenant contained in the deed, by which tie lessees covenanted that they, their exe- cutors, administrators or assigns, or any of them, would not assign over, under-lease or under-let, or otherwise part with the possession of the demised premises without first obtaining the consent in writing of the lessor: — Held, that this was a cove- nant which ran with the land, and therefore that the defendant was liable for assigning over the premises without first obtaining a licence to do so. Williams v. Earle, 37 Law J. JJep. (n.s.) Q. £. 231 ; 9 Best & S. 740 ; Law Hep. 3 Q. B. 739. 16. — A, being the owner of a building estate, sold a plot of it to B who, by the conveyance, entered into restrictive covenants with A as to tie mode of using the land. A afterwards con- tracted for the re-purchase, and the land was conveyed by B to C as mortgagee of A. During the interval, A sold several other plots of the same estate to various persons, but it did not appear whether he entered into any arrangement with them as to the user of the laud. The mort- gagee foreclosed : — Held, affirming the decision of the Vice Chancellor of the Duchy of Lancaster, that the laud was not bound by the restrictive covenants entered into by B ; and the land being sold without any condition as to these covenants, the title was forced upon the purchaser. Keates V. Lyon, 38 Law J. Eep. (n.s.) Chanq. 357 ; Law Eep. 4 Chanc. 218. 17. — A deed of partition was executed in 1 794, of land 'protected from the sea by a wall which skirted tie land of one of the part-owners. The deed contained a covenant that the expenses of maintaining the sea-walls should be borne by the parties to the deed, their heirs, executors, and administrators, in proportion to their acreage. Part of the land was liable to scots for the repair of other sea-walls, and had been purchased by tlie present owners under conditions which precluded them from inquiring into the deed of 1794: — Held, that they were, from the position of their land, put on inquiry as to their liability to repair all sea-walls which protected it, and were liable to contribute to the expenses of repairing the wall.' Morland v. Cook, 37 Law J. Eep. (n.s.) Chanc. 825; Law Eep. 6 Eq. 252. Semble — Such a covenant runs with the land. Ibid. Pyery. Carter, 1 Hurl. & N. 916; 26 Law J. Eep. (n.s.) Ex. 258, approved, notwithstanding Suffield V. Breton, 33 Law J. Eep. (n.s.) Chanc. 249. Ibid. [And see Game Laws, 1.] (O) Covenants rtjnnino with thb keversion. 18. — The benefit of a covenant to repair in a joint demise by tenants in common runs with the entire reversion only ; therefore, the representa- tives of all the tenants in common on a lease so jointly made by them must join in suing for a breach of such covenant. Thompson and others V. Hakewdl, 35 Law J. Eep. (n.s.) C. P. 18. 19. — demised to the defendant, for a term of years, the exclusive right and licence to shoot, kill, and take game upon certain of his lands, together with the use of a cottage for the occu- pation of a keeper. There was also a covenant by the defendant that he would leave the estate as well stocked with game in all respects as the same was at the time of the commencement of the term. The defendant entered upon the occupation and occupied for the term, during which C assigned his reversion to the plaintiff. The plaintiff having brought an action against the defendant in respect of a breach of the above covenant to leave the estate well stocked with game, it was held that the demise was a demise of an incorporeal here- ditament ; that the covenant was one which would pass to the assignee of the reversion ; and that the action would lie at the suit of the plaintiff. Hooper v. Clark, 36 Law J. Eep. (n.s.) Q. B. 79 ; 8 Best & S. 150 ; Law Eep. 2 Q. B. 200. (D) Covenant foe Title : bight op pnECHASEB TO, 20. — An estate was being sold, with the appro- bation of the Court, by trustees of a settlement under a power of sale and exchange contained in the settlement to raise a sum to which, in the events which had happened, the tenant for life was entitled : — Held, that the tenant for life must enter into covenants for title. Earl Poulett v. Hood, 37 Law J. Eep. (n.s.) Chanc. 224; Law Eep. 6Eq. 115. 21. — A testator devised real estate upon trust for sale, and to divide the proceeds among his children equally^ A sale of such real estate having been made under a decree of the Court, not for the payment of the testator's debts, but for the division of the proceeds among the parties beneficially en- titled thereto ; — Held, that the purchaser was not entitled to covenants for title from those parties. Cottrell V. Cottrell, 35 Law J. Eep. (n.s.) Chanc. 466 ; Law Eep. 2 Eq. 330, (E) Breach of Covenant, (1) Covenant to repair. 22. — The plaintiffs, as assignees of G, a bank- rupt, sued the defendantas executor of J H. The first count of the declaration stated that E H de- mised certain premises to G, and covenanted to put all the premises forthwith in repair, and during the term maintain in repair the main walls, &e., and the steam-engines, &c., by the fair and reason- able wear and usage thereof; that the reversion became vested in J H ; and that though E H had not put into repair, J H had not done so or main- tained in repair according to the covenant. To the first breach, for not putting in repair, the defendant pleaded, first, that a reasonable time for performance elapsed in the time of E H, and he broke the covenant ; secondly, that not only was this so, but that G brought an action .against J H 2U ■COVENANT (E). and one E, as executors of E H, for such breach, and recovered compensation. Held, that there could be but one breach of the covenant as to putting in repair, and that as such breach had occurred in the time of E H, these pleas -were good. Coward and another v. Gregory, 36 Law J. Eep. (n.s.) C. P. 1 ; Law Eep. 2 C. P. 183. , To the second breach, for not maintaining in repair, the defendant pleaded, first, that Gr brought an action against J H, as an assignee of the rever- sion, for not maintaining in repair, and recovered compensation ; and that the want of repair com- plained of was only a continuance of that for which the former action was brought; secondly, that there had been such recoveries by action as men- tioned in the pleas to the first breach' and the preceding plea to the second breach, and that & did not expend the sums recovered on the pre- mises or put them in repair, and that if he had done so no breach would have occurred : — Held, that the breach was continuing ; that the former recovery went in mitigation of damages, and not in bar, even on equitable grounds ; and that the pleas were therefore bad. Ibid. The defendant also pleaded to the second breach, that the default arose from G- not keeping a cove- nant to maintain in repair all except what the landlord was to maintain, to which the plaintiff replied that the landlord had never put ii) repair : •^Held, that the putting in repair was a condition precedent to the tenant's covenant coming into force, and that therefore the replication was good. The defendant also pleaded to the second breach, that the want of repair was not occasioned by fair and reasonable wear and usage : — Held, that these words only applied to the steam-engizies, &c-., and that therefore the plea was bad. Ihid. The second count of the declaration alleged that G recovered a judgment (still unsatisfied) against J H, as executor of R H, de bonis testatoris, and that J H had committed a devastavit to the amount of the judgment. The defendant pleaded that E H had appointed J H and one E his executors, and thut they both acted as such ; that T H during his life always had sufficient assets ; that E, who was still living, had ever since had the same : — Held, that the plea was bad. Ibid. (2) Covenant not to assign. 23.— The lease of a farm contained (amongst others) a covenant by the lessees, " that they would not assign or otherwise part with possession of the premises without the written consent of the lessor" (the plaintiff), with a proviso that " in case the lessees should fail in the observance or perform- ance of any or either of the covenants and agree- ments, on his or their part contained, &c.," it should be lawful for the lessor to re-enter. The lessees sold their interest in the lease to W, and the lessor in -a letter consented that W. should shovild take the farm " on the same conditions and in accordance with the lease." W entered and took possession of the farm, but no assignment of the term was executed to him : — Held, affirming the decision of the Queen's Bench, 38 Law J. Eep. (n.s.) Q. B. 289 i 9 Best & S. 755 ; Law Eep. 4 Q. B. 634, that there was no such breach of the covenant not to assign without the written consent of the lessor, so as to enable the plaintiff to main- tain ejectment, first, because W appeared to have entered into possession at the instance of the plaintiflT rather than of the lessees, and, secondly, because the consent to the assignment did not prohibit the lessees from parting with possession of the premises till a lease had been executed. West V. Dobb, 39 Law J. Eep. (n.s.) Q. B. 190 ; 10 Best & S. 987 ; Law Eep. 6 Q. B. 460. Semble— Per Kelly, C.B., and Channel!, B., that the alleged breach of covenant was no for- feiture, as the proviso f6r re-entry applied only to a default in the performance of an affirmative and not of a negative covenant. Ibid. [And see No. 15 supra.] (3) Covenant not to permit sale on premises. 24. — At the trial of an ejectment for breach of a covenant contained in a lease whereby the lessee covenanted for himself and assigns not to permit any sale by public auction to take place on the demised premises without the consent in writing of the lessor ; it was proved that the lessee, after mortgaging the premises, executed an assignment of his goods and chattels, and that the trustees, under this assignment, sold the goods by auction upon the demised premises. The Judge having directed a nonsuit on the ground that the plaintiff was not called to prove that there was no assent to the sale, and that there was no evidence that the lessee knew of or permitted the sale :— Held, by the Court of Exchequer Chamber, that the nonsuit was right ; by Kelly, C.B., Martin, B., and Pigott, B., on the ground that the lessee having parted with possession of the premises there was no evidence that the sale took place with his coBsent, or that he had any power to interfere with it ; by Willes, J., and Brett, J., upon the ground that there was no evidence that the sale was without the consent of the plaintiff; by Ghannell, B., and Cleasby, B., that on either ground the nonsuit was right. Toleman v. Port- bury and others. 39 Law J. Eep.. (n.s.) Q. B. 136 ; Law Eep. S Q. B. 288. (4) Covenants for title and guiet enjoyment. 25. — The plaintiff being in occupation of pre- mises under a lease from J F, which would expire on the 4th of December, 1864, obtained from J P a reversionary lease for twenty-one years and twenty-one days, to commence from the said 4th. of December, 1864, on payment of a premium. In November, 1863, J F died. It then turned out that he had no power to granb this reversion- ary lease, and thereupon F V, who was entitled to the premises on the death of J F, refused to ratify it, and the plaintiff was obliged to accept a lease from F V, to commence on the 25th of De- cember, 1864, for seven years only; at a greater rent. The plaintiff brought an action against the executor of J F on a covenant for quiet enjoy- ment contained in the void Icnse : — Held, that the plaintiff was entitled to be indemnified for'what COVENANT (F)— CRQWN GEANTS. 21S he had lost by the breach of covenant, and that under the circumstances the diiferonce between the value of the two leases might be used as a test of the amount of the damages he was entitled to. Lock V. Furze, 35 Law J. Eep. (n.s.) C. P. 141 ; H. & E. 379 ; Law Eep. 1 0. P. 441. 26. — Covenants for title and quiet enjoyment do not extend to protect a puiehaser against de- fects of title, whidi the recitals in his own pur- chase deed are sufficient. Therefore, where a vendor who, under a will, had only a fee subject to an executory devise over which ultimately took effect, sold and conveyed to a purchaser as if absolutely entitled, though the covenant for quiet enjoyment by the vendor ex- tended to meet adverse claims by persons claiming under the vendor's testator, and incumbrances, estates, &e. created by such testator, yet as the will was recited in the purchaser's conveyance : — - Held, that there was no breach of the covenant, which could' not protect the purchaser against his own misconstruction of the written instrument under which he took. Hunt v. White, 37 Law J, Eep. (n.s.) Chanc. 326 ; Law Eep. 6 B^. 32. [And see Lease, 13.] (F) DiSCHAHGE FBOM AITO WaTVEB OF COVENANTS. 27.^An estate was sold in lots, each lot con- sisting of a house and some adjacent land. The fee was conveyed to the purchasers, who covenanted respectively with the vendors that the front or elevation of the houses should not be altered with- out the vendor's consent in writing, and that the premises should not be used as a public-house, beer-shop, temperance hotel, &c. : — Held, that the vendors had not waived their right to insist upon the observance of this covenant by forbearing for periods of six and nine months respectively from taking proceedings against two of the purchasers who sold beer upon their premises, but in such a ■way that the sale was not visible to the occupiers of the other houses. Mitchell v. Sheward, 35 Law J. Eep. (n.s.) Chanc. 393 ; Law Eep. 1 Eq. 641. [And see No. 14 ante.] Covenant for guiet enjoyment: action In/ person claiming under lessor. [See Bauaqes, 9.] Implied covenant for title : agreement to grant lease. [See Action, 3.] Implied covenant : assigntnent of debt. [See Dbbtoe and Ckbditob, 3.] CEIMINAL LAW. £See the various titles (rf Offences ; also titles Indictuent, Misdemeanou.] [The Criminal Law Procedure Act, so far as relates to larceny and embezzlement, amended, 31 & 32 Vict. c. 116. The same in the Courte of Scotland, 31 & 32 Vict. e. 95. Defects in the administration of the Criminal Law removed by 30 & 31 Vict. c. 35. The law as relates to crimi- nal lunatics amended by 30 & 31 Vict. c. 12.] CEOWN. ■ [Statute 29 & 30 Vict. o. 62 repealed 14 & 15 Vict. c. 76.] Privilege of RoyaX residence. The privilege of exemption from the execution, of legal process which attaches to royal residences is based solely on the principle that the personal dignity and comfort of the Sovereign should not be interfered with ; and, though actual personal resi-' dence is not necessary to confer it, the privilege, does not extend to the precincts of a palace such as that of Hampton Court, the occupation of which as a royal residence has been clearly and unequi- vocally abandoned, which has been appropriated to uses practically inconsistent with the personal residence of the Sovereign, and which the Sove- reign has shewn no intention of using again as a residence ; so held, by Lord Chelmsford and Lord Colonsay, aflSrming the judgment of the Court of Exchequer Chamber, 37 Law J. Eep. (n.s.) Ex. 150 ; and that of the Court of Exchequer^ 'Z6 Law J. Eep. (n.s.) Ex. 157 ; the Lord Chancellor dis- senting on the ground that the case could not be substantially distinguished from Winter v. Miles, 10 East, 678, and 2'he Earl of Strathmore v. Laing, 2 Wilson & Shaw, Scotch Appeals, 6, where the privilege was held to extend to Kensington and Holyrood Palaces respectively. The Attorney Gene- ral V. Dakin and others, 39 Law J. Eep. (n.s.) Ex. 113 ; Law Eep. 4 E. & I. App. 338. CEOWN GEANTS, 1. — ^A grant made by the Crown to the inhabi- tants of a parish is good ; though such grant can-, not be made by private individuals. Willingale V. Maitland, ^ Law J. Eep. (n.s.) Chanc. 64 i Law Eep. 3 Eq. 103. Grants by the Crown in. derogation of forestal rights are good grants, though they might not be good except made in derogation of such rights. 2. — The endowments of several of the Eegius professors of a college havinglieen increased under the provisions of 3 & 4 Vict. c. 1 1 3, but no increase having been made in the endowment of one of them, which was very inadequate, and the powers of that statute having ceased, the Lord Chancel- lor, representing the Queen as Visitor, sanctioned an increase of endowment out of the revenues on the petition of the college. In re Christ Church, Law Eep. 1 Chanc. 526. 3. — In 1850, while Natal was included within the see of Capetown, a Crown grant of land on which a church was built was made to the Bishop of Capetown and his successors in that see in trus(j for the English church at Pietermaritzburg, in the colony of Natal. In 1853, the see of Capetown was dissolved, and Natal was erected into a sepa- rate diocese, the Bishop of Capetown resigning,, and being re-appointed to the new and curtailed" see of Capetown, and Dr. Colenso being appointed Bishop of Natal. In 1863, the Bishop of Cape- S16 OEUELTY— DAMAGES (A). town toot possession, and excluded the Bishop of Natal from the use of the church ; whereupon tlie latter brought ejectment, and the Supreme Court of Natal decided in eflfect that Dr. Colenso and his successors ip the see of Natal, and not the bishop of the new see of Capetown, was, according to the true meaning of the grant, the corporation sole for the purposes for which the grant was made. But held, on appeal, first, that the corporation to be capable of taking under the grant must be the cor- poration described in it, and have existed at the time ; and that neither of these bishops came within the terms of the grant of 1850, or conse- quently took any estate under it ; secondly, that the Bishop of Natal had, as against the Bishop of Capetown, full and free right to the un- interrupted use of, and access to, the church. Bishop of Capetown v. Bishop of Natal, 38 Law J. Hep. (n.s.) p. C. 58 ; Law Eep. 3 P. 0. 1. Croum Lands: Austrdia. [See Coionial Law, 33.] Patent: Petition of right. [See Patent, 27.] CRUELTY. [See DiTOECE (G).] CROWN CASES RESERVED. The Court for the Consideration of Crown Cases Reserved will only consider qiiestions of law which shall have arisen on the trial of the prisoner. The Queen v. Clark, 36 Law J. Rep. (n.s.) M. C, 16 ; LawEep. 1 C. C. R. 54.. Where a man was indicted for a misdemeanor and pleaded guilty, the Court declined to consider whether he ought to have been indicted for a felony on the same facts. Ibid. CURTESY. ee Baeon akd Feme.] CUSTOM. (A) Vaiiottt of. (B) Construction of. (C) Evidence op. (A) Validity of. To trespass on plaintiff's land in the manor of L a justification was pleaded, under a custom of the manor of L, for the inhabitants of the parish of L in and adjacent to the said manor to enter upon the said land at all seasonable times in the year for the purpose of exercising and training horses : — Held, that such a custom is bad in law. Sowerhy v. Coleman and others, 36 Law J. Eep. (n.s.) Ex. 57 ; Law Rep. 2 Ex. 96. [And see Stock Exchakoe; Attachment, 8 Beokbe, 3; Chuech and Ci.eegt, 10, 18 Commons, 3,4; Eishbet, 2; Inclosdee, 2,3 moetgage, 25.] (B) Constbuction of. [See Maeine Insueance, 36.] (C) Evidence of. [See Anchobage ; Chuech and Cleegt, 19 ; Copyhold; Sbippino (A) 18, (H) 2.] CUSTOMARY FREEHOLD. [See Copyhold.] CUSTOMS. [See Revenue.] CY-PRES. [See Will, Constbuction (I) (^).] DAMAGES. (A) When eecoveeable. (B) Measube and ceitbeion of. (a) Default in delivery. (i) Of goods. (2) Of possession of land. (6) Misrepresentation. (1) Of authority to contract. (2) Of quality of things sold, (C) Excessive Damages. (D) Remoteness of Damage. (E) Special Damage. (A) When eecoveeable. 1. — Where, on an agreement for sale of a house, it was stated that as earnest the purchaser had paid to the vendor the sum of bOl., to be allowed in payment on completion, but to be returned if vendor should not fulfil the agreement, "and if the said purchaser should fail to perform his part of the agreement, the deposit-money shall become forfeited in part of the following damages ; " and if either party should refuse to perform any part of the agreement, such party should pay to the other of them "the sum of 50Z., hereby mutually agreed upon to be the damages ascer- tained and fixed on breach hereof," the purchaser refused to complete : — Held, that the 601. was liquidated damages, and not penalty, and that the vendor was entitled to recover, the purchaser not having paid his deposit, but given an I U. Hinton v. Sparkes, 37 Law J. Rep. (n.s.) C. P. 81 ; Law Rep. 3 C. P. 161. 2. — The defendants for a commission agreed with the plaintiff to accept bills of exchange DAMAGES (B). Sir- drawn upon them by a house at Alexandria, against grain consigned to England, and to pay the bills at maturity, being in the mean time placed in funds by the plaintiff, from the proceeds of the sale of the grain. The defendants accord- ingly, accepted bills to a large amount, and were placed in fiinds to meet them by the plaintiff, but afterwards, and before the bills came to maturity, the defendants stopped payment and gave notice to the plaintiff that they should not pay the bills. The plaintiff thereupon obtained an advance from a third person, for the purpose of taking up the bills, paying a commission for the advance. He incurred expenses in telegraphing to Alexandria, for information respecting the holders of the bills, and for telegraphic replies from Alexandria. He also paid for the noting and protesting of the bills. In an action brought by the plaintiff against the defendants to recover damages for the defendants' breach of contract, the defendants paid into Court the amount claimed for the noting and protesting, and the jury gave a verdict for the plaintiff for the amount of the commission paid for the advance and the telegraphic expenses. Upon a rule to enter a nonsuit or verdict for the defendants upon the ground that such damages were not recover- able : — -Held, that they were recoverable. Per Kelly, C.B. — By the analogy of actions brought against banks for not paying customers' cheques, the amount given by the jury might be given as general damage. Per Martin, B., and Pigott, B. — The damage for which the verdict was given was special and not general damage, but it was special damage arising naturally from the defendants' breach of contract, and therefore was recoverable. Prehn v. The Eoyai Bank of Liverpool, 39 Law J. Eep. (h.s.) Ex. 41 ; Law Eep. 5 Ex. 92. [And see Negligence.] Jurisdiction in Equity to award damages. [See Injunction, 41, 42 ; Election, 9 ; Specific Peefoemance, 32 ; Patent, 29, 40 ; Peaotice in EftuiTT (Q).] On, breach of promise to marry. [See Maeeiage, 4.] On. stoppage of bank: letters of credit. [See Company (G) 42.] Assessing damages: money paid into Court. [See Libel, 16;] (B) Measuee and ceiteeion of. (a) Default in delivery.. (1) Of goods. 3. — Any one buying a chattel for special and extraordinary purposes unknown to the vendor, though he cannot upon breach of the contract to deliver it at the appointed time recover as damages the amount lost by the failure of his design, is still entitled to recover what he might have made if he had been able to use the chattel for the ordinary and customary purposes for which it is adapted. Oory and others v. The Thames Iron- works and Ship-building Company, lAmited, 37 Digest, 1863-70. Law J. Eep. (n.s.) Q. B. 68 ; Law Eep. 8 Q. B. ■ 181. 4. — After breach of a written agreement to supply goods, the seller wrote to the buyer dis- claiming any liability for the breach, but offering to deliver the goods at some future time. The buyer, acting upon the proposal, waited several • months and then bought other goods in place of those contracted for : — Held, affirming the Court of Queen's Bench, 36 Law J. Eep. (n.s.) Q. B. 175 ; 7 Best & S. 855 ; Law Eep. 2 a. B. 275, that the buyer might recover from the seller the difference between the contract price and the price, of the substituted goods, though this price was greater than that of such goods when the contract- was first broken, and that the Statute of Frauds did not apply, as there was evidence for a jury that the buyer had waited at the seller's request, without entering into a fresh contract. Ogle v. , Lord Vane, 37 Law J. Eep. (n.s.) Q. B. 77 ; 9 Best & S. 182 ; Law Eep. 3 Q. B. 272. [And see Caeeiee, 26 ; Company (G), 20 ; Feauds, Statute of, 4 ; Shipping (F), and Stoppage in Teansitu, 3.] (2) Of possession of land. 5.— Where the lease of a house was sold by auction, the conditions of sale providing that pos- session should be given on the completion of the purchase, and the vendors, who were mortgagees of the property and entitled to convey it, failed to give possession because of their unwillingness to incur the expense of an ejectment against the mortgagor, who refused to quit the premises: — Help, affirming the judgment of the Court of Queen's Bench, 37 Law J. Eep. (n.s.) Q. B. 145 ; 9 Best & S. 85, that the ordinary rule limiting the damages in sales of real property did not apply, and that the purchaser could recover, not only the amount of the deposit and the expense of examining the title, but the loss of the profit on a re-sale of the pre- mises, and the cost of the conveyance to the sub- vendee. Engell v. Fitch and others, 38 Law J. Eep. (n.s.) Q. B. 304; 10 Best & S. 738; Law Eep. 4 Q. B. 659. (5) Misrepresentation, (1) Of authority to contract. 6. — The defendant professing to be agent for the owners (he being one of them) of an estate, entered into a contract of sale of it to the plaintiff; some time afterwards he wrote to say that there had been some misunderstanding, that he thought he was authorised to sell, but that it appeared that the parties interested took a different view ; the owners refused to complete, and sold the estate for a larger sum than that offered by the plaintiff, The plaintiff then brought an action against the owners, when, in answer to interrogatories, they (including the defendant) swore there was no authority, but the plaintiff still prosecuted the action on the ground that an advertisement, stating that to treat and view the property applications were to be made to the defendant, was sufficient authority, and iv.'is non-suited ; he then brought FF 218 DAMAGES (C), (D). an action against the defendant for misrepresenta- tion of authority: — Held, that he was entitled to recover as damages, first, the cost of investigating title ; secondly, the costs of the previous action up to the time of the answers, and a reasonable time to consider them, but not beyond ; thirdly, the difference between the contract price and the market value, of which the price for which the estate sold was prim4 facie evidence; but could not recover loss on cattle, &e., bought on contem- plation of the completion of the purchase. &odwm V. Francis, 39 Law J. Eep. (n.s.) C. P. 121 ; Law Eep. 5 C. P. 296. 7. — The plaintiff was the holder of a nearly expired lease of certain premises for 2 1 years. The defendant, professing to act as the agent of the landlord, agreed with the plaintiff that the land- lord should renew the lease. The plaintiff then assigned to B the residue of the lease and all in- terest under this agreement. The landlord refused to grant the new lease because the defendant acted without authority, and B had to leave. The plain- tiff brought a suit in Chancery for specific per- formance, in which the landlord and the defendant swore there was no authority, and the bill was dismissed, B then brought an action against the plaintiff, and recovered damages and costs, and the plaintiff afterwards brought the present action : — Held, first, that in the absence of its appearing that the defendant had not persisted in his repre- sentation and told the plaintiff not to bring the suit, the plaintiff was entitled to recover the costs of the Chancery suit; secondly, that the plaintiff was entitled to a sum arrived at by capitalising the difference between the rent the plaintiff was to have paid and the actual annual value of the premises, as and for the value of the term ; hut, thirdly, that as in the particular case a re-sale was not in the contemplation of the parties, the plaintiff could not recover the damages and costs in B's action. Spedding v. Nevell, 38 Law J. Eep. (n.s.) C. p. 133 ; Law Eep. 4 C. P. 212. [And see Sale of Goods, 4.] (3) Of quality of thing sold. 8.— The defendant sold to the plaintiff a cow which he knew to be infected with a contagious disease, falsely representing to the plaintiff that ,she was free from disease, and the plaintiff, be- lieving the representation to be true, put the cow in a shed with other cows of his own, which became thereby infected with the disease and died : — Held, that in an action against the defendant for fraudu- lently representing the cow to be free from disease, the plaintiff was entitled to recover, in addition to the purchase-money he had paid for the cow, the value of the other cows he had lost by reason of their so becoming infected, such damage being the natural consequence of the plaintiff acting on the defendant's representation as if it had been true. MuUett v. Mason, 35 Law J. Eep. (n.s.) C. P. 299 ; H. & E. 779 ; Law Bep. 1 C. P. 559. (C) Excessive DAMiGES. . — The defendant by indenture demised to the plaintiff, first, a messuage at the yearly rent of 80^., secondly, a piece of garden ground in the rear of an adjoining messuage- at the yearly rent of a peppercorn ; and the indenture contained a cove- nant for quiet enjoyment without interruption by any one claiming from or under the defendant. The plaintiff built a conservatory upon the piece of ground secondly demised. An action of trespass was brought against him by a person who occupied the adjoining messuage under a demise by the de- fendant of prior date to the plaintiffs. The plain- tiff wrote more than once to the defendant, inform- ing him of the action ; but the defendant sent no answer. The plaintiff then defended the 'action, and the defendant appeared as a witness at the trial on his behalf; but a verdict was obtained against the plaintiff, with 40s. damages and costs. He thereupon sued the defendant for breach of covenant, and obtained a verdict ; and in assessing the damages, the jxiry included the costs of the action which he had defended, the cost of the con- servatory, and 102^. for the value of the piece of ground : — Held, upon motion to reduce the damages, that the plaintiff, receiving no reply to his letters informing the defendant of the action of trespass, was justified in considering the defendant's silence as an authority to him to defend the action ; and that although the rent paid by the plaintiff for the land was nominal, it was for the jury to estimate its real value to the plaintiff; and that the verdict must not be disturbed. Solph, v. Crouch, 37 Law J. Eep. (n.s.) Ex. 8 ; Law Eep. 3 Ex. 44. (D) Eemoteness of Damage. 10.— ;A passenger by a railway carriage was ordered to leave it by the company's servants under circumstances which did not justify them in what they were doing ; and it appeared that upon leaving the carriage he left a pair of race-glasses upon the seat, which, as the train proceeded -with- out him, were lost : — Held, that the loss of these glasses was not the natural result of the wrongful act, and that the plaintiff could not recover their valne. Glomrv. The London and South-Western Eailway Company, 37 Law J. Eep. (n.s.)Q,. B. 57 ; Law Eep. 3 Q. B. 25. 11. — The declaration stated that, in considera- tion that the plaintiff would bring his ship to the defendants' dock at a certain time, the defendants promised to dock her therein, and that the plaintiff brought her to the dock at the time appointed, but that the defendants refused to admit her into the dock, by reason whereof she grounded out- side the dock when the tide ebbed, and was damaged. E-vidence was given that the dock-gate could not be opened because a chain had broken, and that the plaintiff was informed of this immediately on the arrival of his ship opposite the dock. There was conflicting evidence as to the reason for the ship remaining in the river opposite to the dock- gate till she grounded. The jury were asked, first, whether there was a place of safety to which the ship could have been taken before the tide ebbed ; and, secondly, whose fault it was that she was not taken there ^the DAMAGES (D)— DEBTOR AND CEEDITOR (A). 219 captain's or the pilot's. They rBturned no answer to the first question, and replied to the second, that neither the captain nor the pilot was to blame. Held, by Martin, B., that the damages consequent upon the ship taking the ground were not too re- mote to he recovered by the plaintiff. Held, by Pollock, C.B., Channell, B. and Pigott, B., that without more assistance from the jury the case was not ripe for the decision of the Court, Wilson V. The Newport Dock Company, 35 Law J. Rep. (n.s.) Ex. 97 ; 4 Hurl. & C. 232 ; Law Rep. 1 Ex. 177. Hadley v. BaxendaU, 9 Ex. Rep. 341 ; 23 Law J. Rep. iN.s.) Ex. 179, discussed. Ibid. 12. — The defendants were Commissioners under an Act of Parliament for improving the drainage of the fen lands, and in consequence of their negligence, the western bank of a cut made by them under their Act gave way, and through the breach in the said bank the waters of a tidal river overflowed the low lands lying west of the cut. The plaintiff was possessed of land on the eastern side of the cut, the water from which land used to drain to the west side through a culvert of the defendants, which by their Act of Parliament thoy were to maintain open for a free passage of such water. After the bank had given way, but before the wat«rs of the flood had reached the culvert, the plaintiff stopped up the culvert, but the occupiers of lands on the west side of the cut, considering that the stopping of the culvert would be injurious to their lands, by preventing the great body of advancing water from finding an outlet there, removed the stoppage, and the result was that the flood waters passed through the culvert from the western to the eastern side of the cut, and reached and inundated the plaintiff's land. In an action by the plaintiff for the damage sustained by his land being so inundated : — Held, that the plaintiff was entitled to recover such damage, notwithstand- ing it arose in part by the opening of the culvert after the plaintiff had stopped it up, as such damage was the natural result of the defendants' negligence. Collins v. The Middle Level Commis- sioners, 38 Law J. Rep. (n.s.) C. P. 236; Law Rep. 4 C. P. 279. 13. — The defendants' vessel, through the negli- gence of their servants, took the ground, and becoming unmanageable in consequence, was driven against and damaged the plaintiffs' sea- wall. She could not be removed from her position against the wall without being broken up. During the time occupied in landing the cargo, which was done with reasonable care, speed, and diligence, further damage was done to the wall by the vessel bumping against it. The declaration stated in the first count that the vessel was wrecked by the negligence of the defendants' servants, and there- by injured the plaintiffs' wall ; and in the second count that the defendants' vessel had been wrecked and driven against the wall, and did and was continuing to do injury to it, and that by reasonable care the defendants might have prevented her from doing and continuing to do further injury to the wall : — ^Held, that the plaintiffs were entitled to recover on the first, but not on the second count. The Lords Bailiffs and Jurats oj- Romney Marsh v. The Corporation of the Trinity House, 39 Law J. Rep. (n.s.) Ex. 163; Law Rep. 5 Ex. 204. [And see Master and Servant, 2 ; Nequoenoe, 11, 23, 36.] (E) Speoial Damage. [See Slander.] DEBENTURES. [See Company (C) 17, (F) 9, (G) (/) ; Railway Company, 10.] DEBTOR AND CREDITOR. (A) Of the Cbeditoe. (a) Creditors in general. (6) Judgment creditors. (c) Special debt : how constituted. (B) Assignment of Debt. (C) Speclal Aokeement and dealings between Debtoe and Cebditob. (D) Discharge of Debts. (a) Sy release. (b) By acceptance of new debtor. (E) Tktjst and Composition and Inspectob- SHip Deeds. (F) Feaudulbnt peepeeence. (G) Impeisonment foe Debt. [And see Banxeuptcy.] (A) Of the Cbbditoe. (a) Creditors in general. [See Bankbtjptcy.] (6) Judginent creditors. [See Judgment.] (c) Specialty debt : how constituted. 1. — Although, where a man, owing a simple contract debt, executes an instrument under seal which admits the debt, the debt is not thereby converted into a specialty debt, yet if, by such deed, he agrees to give a security which would create a specialty debt, in the present instance a mortgage, that converts the debt into a specialty debt. Saunders v. Milsome, Law Rep. 2 Eq. 673. 2. — A- trustee executed a deed acknowledging that he had trust money in his hands, and that he intended to secure it on property in which he had a reversionary interest. The deed contained no covenant to pay the money. In the administration of the trustee's estate, it was held, by Stuart, V.C., that the money due under the deed was. a specialty debt, and ought to be proved for accord- ingly. But held, on appeal, by Cairns, L.J., in reversal of the "Vice Chancellor's order, that, having regard to the absence of a covenant in the deed to repay the debt, and to the fact of the existence of fp2 220 DEBTOE AND CBEDITOK (B), (D). an antecedent liability on the part of the trustee to pay, and also to the principle of construction laid down in Courtney v. Taylor, 6 Man. & Gr. 851 ; 7 Scott, N. S. 749; 12 Law 3. Kep. (n.s.) C. P. 330 ; and Adcy v. Arnold, 2 De Gex, M. & G. 432, the debt had not been converted by the deed into a specialty debt. Brook v. Harwood, Isaacson \. Harwood, 37 Law J. Eep. (n.b.) Chano. 209 ; Law Eep. 3 Chanc. 225. 3. — Where a debt is assigned with the usual power of attorney to sue in the assignor's name, there is an implied covenant by the assignor not to thwart the remedy of the assignee against the debtor, and it is a breach of such covenant for the ajssignor to release the debtor from an arrest under bailable process at the suit of the assignee, though such arrest has been made for a larger sum than actually due. Gerard v. Lewis, 36 Law J. Eep. (n.s.) C. p. 173 ; Law Eep. 2 C. P. 305. (B) Assignment of Debt. 4. — A promise to pay money when the debtor receives the proceeds of a debt due to him from a third person, is not like a promise to pay out of the proceeds, and does not constitute an equit- able assignment so as to charge the debt in the hapds of such third person. In either case such a promise is provable by parol evidence. Field V. Magaw, Law Eep. 4 C. P. 660. (C) Special Agreements and deaxings between Debtor and Creditor. 5. — ^H was indebted to T and S on several accounts, to ascertain which, three several suits were pending against him. In one suit a final decree was made fixing the liability of H on one account, and ordering him to pay by a day named. He wished for further time, and it was agreed be- tween him and T and S that the terms of the order as to payment should be varied, H agreeing not to appeal against the final decree already made in the one suit, to admit the amounts claimed in other two suits, and, on a, certain day, to pay a fixed sum and to execute a mortgage,, for secur- ing the payments in a particular manner, of another sum ; and T and S agreed thereupon to take a less sum than they claimed, but with the proviso that, if H made any default, they should be at liberty to recover their whole debt. H paid the sum fixed, and executed a mortgage for thp other sum, but not on the day named, and by con- sent the terms of the mortgage were varied ; but it contained a fresh proviso, that the arrangement then made was, if its terms vi^re broken by H, not to prejudice the existing rights of T and S. H again made default, and, when T and S claimed their whole debt, he pleaded that the proviso was a condition in the nature of a penalty ; that the condition had been waived, and the penalty could not be enforced in equity : — Held, varying the order of Chelmsford, L. C, and Turner, L. J., 36 Law J. Eep. (n.s.) Chanc. 388 ; Law Eep. 2 Chanc. 255, that, as there was money already due upon contract, the proviso in the agreement to take part of it, and that, in certain events, the whole debt should revive, was a stipulation which ought to be enforced, and was not a penalty against which relief should be granted in equity ; and the varia- tion in the subsequent consent was not a waiver of the rights existing under the original agree- ment, as no new claim or right was thereby created. Thompson and another v. Hudson, 38 Law J. Eep. (n.s.) Chanc. 431 ; Law Eep. 4 E. & I. App. 1. 6. — A, the agent of B, to whom he had lent money, effected policies on B's life, and paid from time to time the premiums upon them. A, in a me- morandum kept by him, charged B's account with the premiums, but there was no evidence that this account was ever communicated to B, or that B was aware that the premiums were being charged against him. Under these circumstances : — Held, in reversal of James, V.C., that the policies could not be treated as between A and B's estate, as having been effected by A for B's benefit, and as held by him in trust for B's estate. Bruce v. Garden, 39 Law J. Eep. (n.s.) Chanc. 334; Law Eep. 5 Chanc. 32. (D) Discharge op Debts. (a) By release, 7. — A, being indebted to B, entered into an agreement not under seal, for the repayment of the money, B to hold a policy on A's life as secu- rity. B died, and her executors reckoned the debt among her assets, and paid probate and legacy duty upon it. Communications took place between the debtor and the executors on the one hand, and the executors and the residuary legatees on the other hand, as to not enforcing the debt upon payment by the debtor of the probate and legacy duty thereon. The debtor did in fact pay such duties, and the executors withdrew their claim on the policy, but neither was the agreement surrendered to A nor cancelled, nor was any release of his debt executed. On appeal : — Held, by Lord Justice Turner, that the communications amounted to an agreement to release the debt, and that the payment of the duties was sufficient consideration ; Lord Justice Knight Bruce not dissenting, but doubting whether, looking at the difference between the amount of the debt and the duties, there was a sufficient valuable consid- eration. Taylor -v. Manners, 3a Law J. Eep. (n.s.) Chanc. 128 ; Law Eep. 1 Chanc. 48. By receipt of executor. [See Executor, 14.] (i) By acceptance of new debtor. 8. — A lent to B & C divers sums of money to be expended in executing certain works for which B & C were contractors. B & C during the period in which these advances were being made trans- ferred all their contracts to a company, which undertook to indemnify them against all liabilities incurred by them in respect of the contracts. The money advanced by A was actually expended by the company in the manner contemplated. A re- fused to acknowledge the company as the borrowers of the money, and required the promissory notes which were given for repayment to be made by B & C, which was accordingly done. About a year DEBTOE AND CEEDITOE (E), (G)-DEED (A), (B). 221 later A accepted from the company interest upon the loan up to date. Beyond a few letters relative to the amount of interest,-^ no communication took place between A and the company: — Held, that upon the company being wound up, A could not claim to be a creditor of the company for the amount of the notes, as he had not accepted the company as his debtors. In re Smith, Knight and Co., Limited. Gibson's case, 38 Law J. Eep. (k.s.) Chanc 673 ; Law Eep. i Chanc. 662. [And see cases collected under Company, Amalgamation.] (E) Tktjst and Composition and Inspeotoeship Deeds. [See Composition Deed.] (F) EEAtJDULENT PrEFEEENCE. [See Bankeuptcy (A) 1-18.] (Gr) Impeisonment poe Debt. 9. — A solicitor may be imprisoned for default in payment of a balance ordered to be paid on a common order to tax his bill of costs. In, re A B, 39 Law J. Eep. (n.s.) Chane. 169. 10.— By the Debtors Act, 1869, Part 1, im- prisonment for debt is abolished, but there is ex- cepted from the enactment, first, default in payment of a penalty, &c. ; secondly, default in payment of any sum recoverable summarily before a Justice or Justices of the peace. By 12 & 13 Vict. c. 45, B. 5, upon any appeal to Sessions the Court may prder the party against whom the same shall be decided to pay costs, such costs to be recoverable in the manner pointed out by s. 27 of 11 & 12 Vict. c. 43. By the latter section, if the statute give costs and liie Sessions order them, the order must direct them to be paid to the clerk of the peace, &c., and if they are not paid, the clerk of the peace is to grant a certificate to that effect, and upon production thereof to a Jnstice, a warrant of distress may issue, and in default of distress, a warrant for commitment to prison. Upon appeal to Quarter Sessions against an affiliation order, the order was quashed, with costs, and the respondent, in default of distress, com- mitted to prison : — Held, that as the word "re- coverable" was used by the Act, 12 & 13 Vict. c. 45, in alluding to the proceedings under 11 & 12 Vict. c. 43, s. 27, for enforcing the payment of costs, the right to these costs must be taken to be a right to a sum of money recoverable summarily before a Justice of the peace, within the exception in the Debtors Act, and the respondent was there- fore not protected from imprisonment. The Queen V. Pratt, 39 Law J. Eep. (n.s.) M. 0. 73 ; Law Eep. 6 Q. B. 176. 11, — ^An order for payment of costs constitutes a debt within the Debtors Act, 1869, capable of being enforced by committal to prison for a term not exceeding six weeks, in default of payment by instalments. Hewitson v. Sherwin, Law Eep, 10 Eq. 53. DECLARATION OF LEGITIMACY. [See Legitimacy Declaeation Act.] DECLAEATION OP TITLE. [See Land E:^gistey Act.] The Court after investigation being satisfied with the title of a petitioner to a house in London, ordered under the above-mentioned Act— 1. That the declaration estabUshing the petitioner's titla should be made at the end of three months ; 2. That the security required by section 9 should be. 40/. ; and 3. That notice of the order should be advertised three times, at three days' interval, in three London newspapers. In re Boberts, 39 Law J. Eep, (n.s.) Chanc. 888 ; Law Eep. 10 Eq. 402. (B) DEED. (A) Execution ot. (a) AoknowledgTnent of mjirried woman. VAiroiTY of. (a) Deed between htesband and wife. (b) Undiee influence. (e) Frandident conveyance. (^d) Inadeguacy of consideration or mistakd (C) CONSTEUCTION of. (a) Ambiguity. (4) What property passes. {c) What estate is created. (D) C0STODY op Title Deeds. (A) Execution op. (a) Acknowledgment by married woman. [See Baeon and Feme, 23-26.] (B) Validity of. (a) Deed between husband and wife. 1. — Deed between husband and wife improperly obtained from the husband, through the wife's solicitor, who took a benefit under it, set aside vrith costs, to be paid by such solicitor. Deed by which a husband makes a provision for his wife in case of a future separation is radically defective. A delay of nine years in seeking to set aside a deed; — Held, under the circumstances, accounted for. Procter v. BoUnson, 35 Baav. 329. DECEIT. [See Damages, 8, and Compant (0) 42.] (6) Undue influence. [See that title.] (c) Fraudulent conveyance. 2. — A person being indebted to five persons as well as many others, and being aware that a writ of execution was about to be executed by one of the other creditors, executed a mortgage substan- tially comprising the whole of his property in favour of the five creditors. Under the mortgage 222 BEEIJ (0), (D). deed, the debtor was to remain in possession until default should be made in payment of the five debts at the expiration of six months, or until execution should be issued against his property: — Held, that the deed was not void within the statute 13 Eliz. c. 6. Alton v. Harrison, Foyser v. Harri- son, 38 Law J. Eep. (n.s.) Chauc. 669 ; Law Eep. 4 Chane. 622. It malses no difference as regards the Act, 13 Eliz. c. 5, whether or not a deed executed in cir- cumstances such as the above comprises all the property of the debtor. Ibid. (d) Inadequacy of consideration or mistake. [See Voluntary Deed and Jurisdiction in Equity, 4.] (C) Construction of. (a) Amhiguity. 3, — In 1801, by a deed since lost, after reciting the conveyance to the defendants by A, by a deed of even date, of certain land in consideration of an annual rent of 105Z. to be paid "to Aor the person or persons to whom the freehold or inheri- tance of the premises thereby released should for the, time being belong in case the said deed had not been made," the defendants covenanted, " to and with A and the person or persons to whom the freehold or inheritance of the said heredita- ments and premises thereinbefore recited to be re- leased should for the time being belong," to pay the said rentcharge. In 1827, by another deed, reciting that above mentioned, and that A was dead, and that " the freehold and inheritance of the hereditaments and premises mentioned and comprised in the said deed of 1801, oif the said rentcharge or yearly sum of 105^. ; was vested in B, and that the rentcharge had been duly paid to A during his life, and to B after his death, the de- fendants proceeded to ratify and confirm the deed of 1801, and declared that it should be good, valid and effectual to all intents and purposes according to the true intent and meaning thereof, notwith- standing its loss. The plaintiff afterwards be- came entitled, under a conveyance from B, to all his interest in the rentcharge. An action having been brought by the plaintiff for certain arrears of the rentcharge: — Held, that it appeared with sufficient clearness, looking at the whole of the deed of 1801, that the operative words were in- tended to designate as the grantees of the rent- charge the same person or class of persons that was referred to in the recitals of that deed, namely, A and the person or persons to whom the freehold or inheritance of the said hereditaments and pre- mises would have belonged in case the said deed had not been made ; and that any difficulty which might have arisen in determining the persons who after A's death would have answered this descrip- tion was surmounted by the deed of confirmation, by which the defendants declared that the rent- charge had become vested in B, whose title the plaintiff had, and that the plaintiff was therefore entitled to recover. Gwyn v. The Company of Proprietors of the Neath Canal Navigation, 37 Law J. Eep. (n.s.) Ex, 122 ; Law Eep. 3 Ex. 209. (i) What property passes. 4. — A grant of a mine was made to L by deed, with map indorsed ; the southern boundary being described in the deed as " a straight line drawn fi'om J V's house" to a certain boundstone ; and the description of parcels concluded vrith these words, " which said premises are particularly de- lineated by the map on the back hereof." On this map the line appeared to be drawn from the north- east corner of J V's house. L brought an action of trespass against E for working through this southern boundary, and taking the plaintiffs ore. At the trial, parol evidence was admitted to shew that J V's house was wrongly placed on the map, and that if corrected the line would run to the south of J V's house, and the whole question was left to the jury: — Held, by Lords Cranworth, L.C., and Chelmsford (Lord Westbury dissenting), that, though it was properly a question of evidence for the jury to identify and determine the position of J V's house, it was a question of construction for the Judge to decide what was the true meaning of the deed ; that in so doing the Judge was bound to look at the map, and that he ought to have directed the jury that the true boundary line was that drawn from the north-east corner of J V's house when identified and correctly placed. Zyle and another V. Richards and others, 35 Law J. Eep. (n.s.) a.B. 214 ; Law Eep. 1 E. & I. App. 222. Babbits. [See Warren.] Mortgage in fee passing leasehold interest, [See Mortgage.] (c) What estate is created. 5. — Where the description by a boundary of a portion of an estate in a deed of conveyance is ambiguous, but the quantity was stated to be " about 50 acres," and by one construction of the described boundary the quantity would be 82 acres, and by another construction equally pro- bable the quantity would be 51 acres, the Court, reversing the decision of the Court below, adopted the latter construction. Herrick v. Sixhy, Law Eep. 1 P. 0. 436. (D) Custody of Title Deeds. 6. — E F J,- being tenant in tail of certain lands, &c., in the county of York, derived under the will of P B, and being also entitled in fee tff the L estate in the county of York, suffered a recovery of the estates derived from P B to such uses as he should appoint ; and by a marriage settlement reciting P B's will, the recovery, and the intention to settle the estates in the county of York herein- after mentioned and intended to be conveyed ; and he appointed the estates derived from P B, " and all other the freehold hereditaments, if any, in the county of York, of or to which he was then seised or entitled," &c. : — Held, that the L estate was not included in the settlement by the general words. Jenner v. Jenner, 35 Law J. Eep. (n.s.) Chanc; 329 ; 1 Law Eep. Eq. 361. 7. — Laud was conveyed by deed to the use of A, his heirs and assigns, for ever, but if he should die without issue then to the use of B:— Held, DEFAMATION— DISO-EDERLY HOUSE. 223 that A took an estate tail. Morgan v. Morgan,&% Law J. Rep. (n.s.) Clianc. 493 ; Law Eep. 10 Eq. 99. 8. — Semble — A covenant to surrender copyholds does not stand in the same position (with reference to the doctrine in Shelley's case) as executory in- terests generally. Minton v. Kirwood, 37 Law J. Rep. (n.s.) Chanc. 606; Law Rep. 3 Chanc. 614. 9. — ^Portionists obtained a decree against the tenant for life of the egtates on which the portions were directed to be raised by terms of years, that the portions should be raised by mortgage of the terms, and that tenant for life should produce title deeds, leases, &c., which he did, but afterwards he took the title deeds and leases out of the jurisdic- tion, whereupon he was ordered to deposit them with the Clerk of Records and Writs, which he did. The mortgage was effected, and tenant for life applied for delivery out of the title deeds and leases. The Court refused to order the delivery out, but on consent of the mortgagees, the • order was made on his giving security for their safe custody andproduction at reasonable times. Jenner V. Morris, 3 De Gex, F. & J. 45 ; Law Rep. 1 Chanc. 603. DEFAMATION. [See Libel ; Slandee.] DEMONSTRATIVE LEGACY. [See Legacy (E).] DEMURRAGE. [See Shipping.] DESCENT. 1. — The descendants of one child of an attainted person may trace a heritable descent to the descen- dants of another child of such attainted person. even though the marriage, of which such children were the issue, took place abroad after the attain- der. Viscount Kynnaird v. Leslie, 35 Law J. Rep. (n.s.) C. p. 226; H. & R. 521; Law Rep. 1 0. P. 389. 2.-7-B, the owner of customary freeholds derived by descent ex parte matemS., conveyed his estate to N aijd his heirs and assigns absolutely, and surrendered the lands into the hands ol the lord to the use of N, his heirs and assigns, who on the same day was admitted. On the same day N executed a deed of trust which witnessed that the conveyance was made to W, that he and his heirs should be seised of the lands upon trust for such persons as B by deed or will should appoint, and in default for B, his heirs and assigns. This pro- cess was necessary to give B the power of devising : — Held, that the descent, ex parte matern&, was not broken by the conveyance and declaration of trust. Nanson v. Barnes, Law Eep. 7 Eq. 250. [And see Copyhold, 2.] DESERTION. [See Divorce (H) 35—42.] DEVISE. [See Administeation ; Copyhold, 8 ; Easement, 3 ; Evidence, 16 ; Scotch Law, 8 ; Vendoe and PuRCHASEE, 29 ; Will, Construction (A) 5, 1 6 ; (E) 8, 13 ; (F) 1, 2, 13, 31 ; (I) 5, 6, 7, 10, 21 ; (M) 24 ; (E) 1.] DISCOVERY AND PRODUCTION OF DOCUMENTS. [See Practice in Equity (GG.)] DISENTAILING ASSURANCE. Tenant in tail by deed enrolled granted unto and to the use of trustees on trust to sell. The trustees disclaimed: — Held, that the deed operated as a common law grant, defeated by the disclaimer, and that the entail was not barred. , A disentailing deed, which fails to operate as a conveyance, cannot bar an entail. Peacock v. Kastland, 39 Law J. Rep. (n.s.) Chanc. 634; Law Eep. 10 Eq. 17. DISORDERLY HOUSE. 1, — A conviction on an indictment for keeping a disorderly house will be supported, although there is no evidence of any indecency or disorderly con- duct being perceptible from the exterior of the house. The Queen v. Bice and Wilton, 35 Law J. Rep. (N.s.) M. C. 93 ; Law Rep. 1 C. C. R. 21. 2. — A place duly and honestly registered as a place of public worship (though that worship be not according to any established or usual form), in which no music but sacred music is performed or sung, where nothing dramatic is introduced, where the discourses delivered are intended to be instructive and contain nothing hostile to religion,, where the' object of the promoters may be either to advance their own views of religion, or as they allege "to make science the handmaid of religion," is not a place ' ' used for public entertainment or amusement" within 21 Geo. 3. c. 49, s. 1. The fact that payment is required for admission to a reserved portion of the place, the doors being open gratuitously, doifs not deprive the promoters of the protection of 1 W. & M. sess. 1, c. 18, con- tinued by section 8 of 21 Geo. 3. c. 49. Baxter 224 DISSENTERS— DIVOECE AND MATRIMONIAL CAUSES. V. Langley, 38 Law J. Eep. (n.s.) M. 0. 1 ; Law Eep. 4 C. P. 21. [And see Injunction, 8.] DISSENT EE3. 1. — A congregation of Protestant dissenters was endowed, by deeds Testing in the trustees of the society freehold and leasehold hereditaments and premises upon certain trusts for its benefit. The deeds contained (inter alia) a trust " to permit and Buffer the minister or pastor for the time being of the congregation to have the use or occupation of a house," or " to pay the rents and profits thereof to such minister or pastor, as the same should be- come due or payable, for so long a time as such minister or pastor should from time to time be and continue minister or pastor of the society or congregation, and officiate as such, and no longer, to and for his and their own use and benefit." Neither the deeds nor the rules and regulations of the society contained any provision as to the mode of ascertaining the will of the congregation upon the dismissal of a minister or pastor; and the only specific grounds stated for his refusal were either immorality or heterodoxy. The defendant, the Eev. S C G, was unanimously elected by the congregation one of their co-pastors. Some time after his election the congregation became dissatis- fied with the mode in which he discharged his duties, and dissensions ensued. Ultimately a meeting of the congregation was held, and a resolu- tion passed by a majority of the members present at it, that the Eer. SCO should be dismissed. No special ground was assigned for his dismissal, He questioned the legality of the meeting, and denied the power of the majority of the congrega- tion or of those present at the meeting to remove him, except for immorality or heterodoxy, neither of which was imputed to him. He further claimed the right to hold his office of co-pastor, and to officiate as such and take the emoluments of the office for his life. The majority of the trustees then filed a bill to have it declared that he was properly dismissed from his office, and for an injunction to restrain him from interfering with the property and the services in the chapel of the congregation : — Held, that the defendant, the Eev. S C G, was not entitled to preach or officiate in the chapel of the society against the will of the majority of the trustees and of the congregation ; that he must be restrained from so doing and in other respects, as prayed by the bill ; and that he must pay the plaintiffs their costs of their suit. Cooper v. Gor- don, 38 Law J. Eep. (n.s.) Chanc. 489 ; Law Eep. 8 Eq. 249. 2. — The Court refused, at the instance of trus- tees of a religious body to restrain the minister of the congregation from officiating, where the pro- ceedings, by which he had been dismissed, had not been in the opinion of the Court fairly and pro- perly conducted. Bean v. Bennett, 39 Law J. Eep. (n.s.) Chanc. 674 ; Law Eep. 9 Eq. 625. DISTRESS. For tithe rentcharge. [See Tithe.] For rent, including-intereet, and premiumi on policy. [See Mortgage, 2.] For rent after registration of com/position deed. [See Landloed and Tenant, 8, 10, 11.] By landlord after notice from vestry to pay rent to th&m. [See Metbopous Local Management Acts, 4.] Distress warrant for rates under Local Act. [See Justice of the Peace, 9.] Eight to distrain. [See Landloed and Tenant, 9 et seq.] On goods of third person. [See Landloed AND Tenant, 13.] [And see Fixtuees.] DISTRICT RATE. [See Rate, 1 1 ; Public Health Act (K) ; Meteo- poLis Local Management Acts (B).] DI70RCE AND MATRIMONIAL CAUSES. (A) Jurisdiction. (B) Legitimacy Declaration Act. (C) NuLLiTT OF Marriage. (a) Defect in the contract, ifi) Defect in the parties. (1) Insanity. (2) Impotence and malformation. (i) Generally. (ii) Evidence of. (iii) Inspection. (c) When suit maintainable. (1) Lapse of time. (2) Death of one party, (D) Dissolution of Maeeiagb. (o) When the suit is atid is not maintain- able. (1) Adultery coupled with cruelty. (2) Adultery coupled with deser- tion. (3) Agreement not to sue, (4) Discretion of Court. (6) Insanity of respondent. (6) Effect of (E) Judicial Separation. (a) When the suit is and is not maintain- able. (5) When granted in suit for dissolution, (c) Seversal of decree. (P) Restitution of conjugal eights. (a) Defence to suit for. (b) Abandonment of suit. (G) Ceublty. (a) Bj/ the husband. (1) Generally. (2) Undue exercise of authority. (3) Wilficl communication of c^' (i) By the wife. DIVORCE AND MATBIMONIAL CAUSES (A). 225 (H) Desertion. (a) What amounts to. (b) Offer to return to cohabitation. (1) Effect of. (2) Ettidence of. (c) Effect of deed of separation, {d) Agreement by wife to live apart, (I) CONl^IVANCE AND COULUSION. (o) Connivaivie and candvct condwAng to (1) By the husband. (2) By the wife, (i) Collusion. (K) Parties to suit. (aj Lunatic respoifdent. (b) Co-respondent. (L) Pleading. (a) By Queen's Proctor intervening. (b) Separation deed in suit for Judicial separation. (c) Beforming pleadings. [See (M) Amend- ment.] ((?) Irregularity: misnomer. (M) Amendment. (a) Of petition. (6) Of answer. (c) Of decree or order. (N) Evidence. (a) Of the parties. [See (0) Witness.] (i) Admissions. (c) Depositions. {d) Proceedings in other suits. («) Of marriage, if) Of adultery. Q) Of bigamy, (h) Of identity. (i) of respondent' s faxndties on petition for alimony. (0) Witness. (a) Competency. (b) Examination and cross-examination, (1) On petition for alimon/y. (2) In suit for dissolution. (P) Alimony. (a) Pendente lite. (1) When granted. (2) When refused. (3) When and how long payable. (i) Permanent cdimony. (1) When allowed, or refused. (2) Amount of. (3) Horn payable. (c) Maintenance for children. (Q) Children : Custody op. (a) Given, to husband. (6) Given to wife. (c) Given to third party. ((?) In suits for restitution. (K) Eectification op Settlement. (a) What deeds may be rectified. (6) Under what circumstances. (c) For whose benefit, {d) To what extent. Digest, 1865-70. (S) Practice. (a) Petition. (1) Amendment. (2) Dismissing. (3) Effect of dismissal: estoppel. (4) Title of affidavit in support, (b) Citation: service of. (c) Appearance. , (1) Non-appearance : effect of. (2) Leave to appear. (d) Answer : petition for alinwny. (e) Particulars. (/) Evidence : leave to give. Q) Trial of causes. (1) Directions as to mode of trial. (2) By affidavits, (3) Byjwry. (A) Proceedings at trial. (1) Confirmation. (2) Hearing in camerA. (3) Right to reply. Si) New trial, k) Decrees and Orders. (1) Form of. (2) Amending. (3) Service of. (4) Making decree absolute. (5) Ground for refusing, (i) Damages. (1) Application of. (2) Speedy payment of. (m) Attachment. {n) Sequestration. (o) Appeal. (1) To ;;*«/«;; Cowrf. (2) To the House of Lords. (T) Costs. (a) Cy i^ wife. (1) Under tlie 159th Eule. (2) Petitioning in two suits. (3) Of unsuccessful suits. (4) /» suit for dissolution electing to take decree for separation. (5) Non-payment of, by husband. (6) Objection to bill ^ costs, (J) Against wife. (c) Against co-respondent. . ((i) 2b co-respondent. (e) Against petitioner. (/) Q/ Queen's Proctor intervening, (g) Of other party intervening, {h) Of appeal to the House of Lords, (i) Bules as to. (k) Proctor's lien. [Powers and Procedure of the Divorce Court amended 29 Viet. c. 32 ; and provisions relating to appeals from that Court, 31 & 32 Vict. c. 77.] (A) Jurisdiction. 1. — The petitioner, after a decree nisi had been granted in her favour, applied to the Court by a further petition for a permanent allowance under the 20 & 21 Vict. c. 85, b. 32. This last petition was presented in compliance with the directions of the 95th and following rules, which, together with GG ■ 22C DIVOECE AND MATBIMONIAL CAUSES (B), (C). others, wore issued in December, 1865, under the Bole authority of the Judge Ordinary. It was objected that those rules were invalid as having been authorised by the Judge Ordinary alone, and not by the majority of the Judges of the Court for Divorce, and that the 95th and following rules wore erroneous, because the word "decree" in sect. 32 of 20 & 21 Vict. c. 85, meant the decree nisi, and not the decree absolute: — Held, that as since the passing of 23 & 2i Vict. e. 1 44, the Judge Ordinary can exercise all powers and authority whatever, which could before have been exercised by the full Court, he is authorised to issue new rules ; and that the words " such decree" in the 32nd sect, of 20 & 21 Vict. c. 85, mean the decree by which the marriage is dissolved, that is, the decree absolute ; in which, therefore the order for permanent allow- ance must be incorporated. Charles v. Charles, 36 Law J. Bep. (n.s.) P. ifc M. 17 ; Law Eep. 1 P. & D. 260. 2. — The petitioner applied to the Court for Divorce to dissolve his marriage by reason of his wife's adultery with A. A pleaded that the peti- tioner had himself been guilty of adultery with his wife's sister. The Court held that this charge was proved, and dismissed the petition. The peti- tioner again applied to the Court to dissolve the marriage by reason of his wife's adultery with B and C. Neither the respondent nor either co-re- spondent filed answers to the petition. The Queen's Proctor intervened, and pleaded the former judg- ment, and also the adultery with the respondent's sister ; the jury before whom the issue was tried found that the petitioner had not committed adul- tery with his wife's sister : — Held, that the former judgment must be receivisd as conclusive evidence of the adultery of the petitioner ; but that, under the special circumstances of the case, the Court was justified in the exercise of its discretion in making a decree nisi to dissolve the marriage. Conradi v. Conradi and others, 37 Law J. Eep. ,(n.s.) p. & M. 65 ; Law Eep. 1 P. & D. 614. 3. — A, being a minister of the Mormon church, ■was married in the territory of Utah, United States, by the high priest of that sect, and in ac- cordance with the matrimonial law of theterritory. He, having been sent on a mission beyond the territory, whilst his wife remained at Utah, re- nounced the errors of Mormonism, and was ex- communicated by the authorities of Utah, who also declared his marriage void, whereupon the respondent and the co-respondent intermarried. It was proved that polygamy is recognised and encouraged amongst the Mormons : — Held, that as the contract of a polygamous union does not carry with it those duties which it is the office of the marriage law in this country to assert and enforce; such unions are not within the reach of that law', and the parties to such unions are not entitled to its remedies, adjudication and relief. Hyde v. Hyde and Woodmansee, 35 Law J. Eep. (n.s.) P. & M. 67 ; Law Eep. 1 P. & D. 130. - , \ 4. — The Court is not bound by the practice of the Ecclesiastical Courts in suits for dissolution of marriage, and in siich suits it has no power, even with the consent of all parties, to order th^ cause to be heard in earner^. C — v. C — , 38Xaw J. Eep. (N.3.) p. & M. 37; Law Eep. 1 P. & D. 640. (B) Legitimacy Declabation Act. [See that title.] (C) NUXLITY OF MaEBIAGB. (a) Defect in the contract. 5. — Since the passing of the statute 19 & 20 Vict. c. 110, all analogy between a marriage by banns and one by notice to the registrar, under the Eegistration Acts, has been effaced. The attempt at securing the cons.ent of parents or friends to a marriage of the latter class by publicity has been relinquished, and the procurement of actual consent substituted in the same manner as has always been used in marriages by licence. The due notice therefore required by the statute is a notice con- forming to the formalities by the statute provided, and will be sufficient, even although the contents thereof in respect of the christian names or resi- dence and otW details are not strictly true or accurate. Holmes v. Simmons, 37 Law J. Eep. (n.s.) p. & M. 58; Law Eep. 1 P. & D. 523. It is doubtfid whether the marriage of a minor can be declared null and void by reason of undue publication of banns if there be no parent or guar- dian whose consent or dissent can be given to such marriage. Ibid. (6) Defect in the parties. (1) Insanity. 6. — In deciding whether a party was competent to enter into a contract of marriage, the question for the consideration of the Court will be whether there was health or disease of mind at the time. If disease be shewn, the Court Has no means of gauging the extent of the derangement consequent upon that disease, or of affirming the limits within which the disease might operate to obscure or divert the mental power. Hancock, falsely called Peaty, v. Featy, 36 Law J. Eep. (n.s.) P. & M. 57 ; Law Eep. 1 P. & D. 335. Where proceedings have been instituted to annul a marriage by reason of the lunacy of one of the parties, not being under age, by a guardian as- signed to the lunatic for that purpose, and in the course of the suit it is alleged that the lunatic has since recovered her faculties, and is then in a sound state of mind, the Court will not make a decree at the instance of the guardian until that question is settled. Ibid. The next-of-kin having delayed three years , in instituting the suit, and the respondent having been put to much expense in the meantime in maintaining the alleged lunatic, the Court refused to make any order as to costs. Ibid. (2) Impotence and Malformation. (i) Generally. 7. — The impotence of one of the parties to a DIVORCE AND MATEIMONIAL CAUSES (D). 227 marriage does not render the marriage void but pnly voidable. The validity of such a marriage can only be questioned in the lifetime of both of the parties and by the party who suflers an injury from it : — Heldt accordingly, that the next-of-kin of a deceased married woman could not oppose the grant of administration to heir husband on the ground of his impotence. P — v. 8 — and others, 37 Law J. Rep. (n.s.) P, & M. 80. (ii) Eindence of, 8. — In a suit of nullity by reason of the hus- band's impotency, the surgical report stated that the physical appearances of the wife were such that she might have had regular connection with her husband during cohabitatipn. The wife dur- ing the two years' cohabitation, had not complained to her family on this matter, and had separated from her husband by reason of his alleged violence. The respondent aJErmed on oath that the marriage had been consummated. The Court declined to pronounce the marriage invalid on the unsupported oath of the party seeldng to be relieved from its obligations. Z7— , falsely coiled J~, v. J — , 37 Law J. Rop. (n.s.) p. & M. 7 ; Law Rep. 1 P. & M. 460. [And see infra, No. 12, and Bvidencb, 68.J (iii) Inspection. 9. — As a general rule, a decree of nullity of marriage on the giound of malformation will not be granted unless the esistence of incurable mal- formation is proved by a medical man who has examined the person of the respondent. In a suit of nullity on the ground of the mal- formation of the woman, the respondent (who was abroad, and who, in consequence of her address being unknown, had not been personally served) had not been examined by the medical inspectors or other medical men. The Court suspended its decree, in order that the petitioner might have an opportunity of procuring such an examination, if the respondent should come to England. T — v. M — , fdlsdy caUinff herself C — , 35 Law J. Rep. (h.s.)P.&M. 10; Law Rep. IP. & D. 31. lO.— In a suit for nullity of marriage by reason of malformation the respondent refuses to comply with the order for inspection. The Court declined to issue an attachment against her till after the hearing, but intimated that the attachment would issue forthwith if she attempted to remove out of the jurisdiction. B — v. L—^, falsely called 5 — , 38 Law J. Rep. (n.s.) P. & M. 36 ; Law Rep. 1 P. & D. 639. (c) When suit maintainabh. (1) Lapse of time. IJ, — After a cohabitation of fourteen years, a woman presented a petition in the Court for Divorce and Matrimonial Causes for a decree of nullity of marriage, on the ground of the man's impotence. The report of the inspectors and the medical evi- dence shewed that the woman was virgo intacta et apta viro, and that there was no apparent defect or malformation in the man. The Court was Batisfled that the marriaga haJ never been com- pletely consummated, but was not satisfled that th» non-consummation arose from the incapacity of the man, and, therefore, dismissed the petition :^- Held, by the House of Lords, reversing the decree of the Court below, 34 Law J. Rep. (n.s.) M. & A. 81 ; that the woman was entitled to a decree that the marriage was null and void, on the ground that the cohabitation hAd been for a much more lengthened period than was required to raise the presumption against a husband, and that the Onus was thrown upon the respondent, either of dis- proving the facts, or of shewing, by clear ?,nd satisfactory evidence, that the result was attribu- table to other causes than his own impotency, Lewis, falsely called Hayward, v. Hayward, 35 Law J. Rep. (n.s.) P. & M. 1 06. 12. — In a suit of nullity, by reason of the- im- potence of the husband, the evidence of the wife was entirely unsupported by the medical witnesses. The parties had resided together without any com- plaint by the wife on this matter for eight years, and the separation was then enforced by the hus- band. The Court held that the charge was not made out, and dismissed the petition. Tiaiemor, falsely called Ditohfield, v. DUohfield,. 36 Law J. Rep. (n.s.) p. & M. 61. (2) Death of one peurty. 13. — The validity of a marriage cannot be ques- tioned on the ground of impotence after the death of one of the parties to the- marriage. A. v. B. and another, Law Rep. 1 P. & D. 559. (D) Dissolution of Marriage. (a) When the suit is and is not maintainable^ (1) Adultery eowpledvyith cruelty. [See (G) Ceubltt.]' (2) Adultery cowpled with desertion, [See (H) Deseetion..] (3) Agreement not to sue. 14. — An agreement for good cansideration thafc the petitioner in a suit for dissolution of marriage- will -withdraw from the suit is binding, if it has. not been obtained by fraud or duress. Sterbini v. Sterbini, 39 Law J. Rep. (n.s.) P. & M. 82. 15. — In 1860 a wife filed a petition for disso- lution of marriage, on the ground of adultery and! cruelty. When the cause came on for- trial, it was; -withdra-wn from the jury by agreement of the pai^ ties, the petitioner undertaking not to institute- other pro :eedings in the Divorce- Court. In 1863 the wife instituted a fresh suit for dissolution of marriage, on the ground of adultery and cruelty-, the acts of misconduct alleged in the petition being, with the exception of some acts of adultery and cruelty committed prior to the first petition and not included -within it, and of some acts ot adultery of later date, the same as those cllarged in the first petition. The respondent pleaded the- agreement in bar. Upon application by the peti- tioner for directions as to the mode of trial, the' Court had refused to make any order, upon the ground that the institution of the second suit ■« as. OG 2 228 J)IVOECE AND MATEEMONIAL OAtJSES (E). a gross breach of good faith, and a violation of .the agreement by which the petitioner had surren- dered irrevocably any legal right to relief in Jespect of misconduct prior to the first petition : — Held, by the House of Lords, that the suit could not be sustained, inasmuch as it was founded in part upon acts which had occurred before the date of the first petition, and which were released by the agreement. Eowley v. Bowley, 36 Law J. Rep. (n.s.) p. & M. 110 ; Law Eep. 1 H. L. Sc. 63. (4) Piseretion of Court. 16. — The discretion vested in the Court by s. 31 of 20 & 21 Vict. c. 85, will almost invariably be exercised by refusing to dissolve a marriage on the ground of the wife's adultery if she has been deserted by the petitioner. Teatman v. Yeatman and Smamell, 39 Law J. Eep. (n.s.) P. & M. 77. n, — The marriage took place in 1844. In 1848 the husband was guilty of incestuous adul- tery, and in 1850 he and the wife separated. Yielding to the entreaties of her mother, the wife abstained from instituting her suit until after her mother's death, which occurred in 1868: — Held, to constitute unreasonable delay, but decree granted on consideration of all the circumstances of the case. Newman v. Newman, 39 Law J. Eep. (n.s.) p. & M. 36 ; Law Eep. 2 P. & D. 67. 18.— On the trial of the husband's petition for dissolution of marriage by reason of the wife's adultery, the jury found that the petitioner had also been guilty of adultery. The adultery was long antecedent to the wife's misconduct, and it did not appear that it was known to her until after the filing of the petition. The Court held, that mere lapse of time would not justify the exer- cise of the discretion (which must be a regulated discretion, and not a free option subordinated to no rules) vested in it under section 31 of the sta- tute, and refused a decree. Th6];e are eases in which the discretion may be fitly exercised in favour of a petitioner. But in ^ cases where the adultery has no special circum- stances attending it, and no special features placing it in some category capable of distinct statement and recognition, the Court ought not to assume to itself a right to grant or withhold a divorce upon the inere footing of the petitioner's adiiltery being, utider the whole circumstances of each ease, more or less pardonable or capable of fexcuse. Morgan v. Morgan and Forier, 38 Law J. Eep. (n.s.) p. & M. 41 ; Law Eep. 1 P. & D. 644. 10. — The petitioner satisfied the Court that she had been terrified by the threats and ill treatment of her husband into leading a life of immorality, contrary to her own will and desire : — Held, that it was a fit case for the Court to exercise the dis- cretion given to it by the statute 20 & 21 Vict. c. 85, o. 31, and to pronounce for a dissolution of the tnarriage, the adultery and cruelty of the husband having been proved, notwithstanding the acimitted prostitution of the petitioner during the marriage. Coleman v. Coleman, 35 Law J. Eep. (n.s.) P. & M. b7; Law Eep. 1 P. & D. 81. (5) Insanity of respondent. 20. — In a suit for dissolution of marriage on the ground of the wife's adultery, the respondent having been at the time of the service of the citation and having since continued unfit from mental incapacity to answer the petition and duly instruct her attorney, the Judge Ordinary made an order staying farther proceedings until she should recover. Upon appeal to the full Court : — Held, by the Judge Ordinary and Keating, J., that the insanity of the respondent, so long as it should continue, would be a bar to the suit, and therefore that the order ought to be affirmed. Held, by Kelly, C.B., that the Court had power only to stay the proceedings so long as there might be a reasonable probability that the res- pondent would recover, but that when her .recovery became hopeless the petitioner ought to be allowed to proceed, and therefore that the order ought to be rescinded. Mordaunt v. Mordaimt, Cole aiid Johnstone, 39 Law J. Eep. (n.s.) P. & D. 67 ; Law Eep. 2 P. & D. 109. {b) Effect of Effect of foreign divorce on English mar- riage, [See Inteenational Law.] [See Conflict of Laws, 3 ; Conflict of Laws, 2, 3, 4.] (E) Judicial Separation. (a) When the suit is or is not maintainable. [See (G) Cruelty and (H) Desertion.] (6) When granted in suit for dissolution. 21. — Although in a suit for dissolution of mar- riage the Court may grant a judicial separation where the evidence is sufficient to warrant such a decree only, yet it will not do so, but will dismiss the petition if the petitioner has been guilty of misconduct for which the Court, acting under the 31st section of the 20 & 21 Vict. c. 85, is of opinion that the petition should be dismissed. Boreham V. Boreham, 35 Law J. Eep. (n.s.) P. & M. 49 j Law Eep. 1 P. & D. 77. 22. — The adultery of the respondent having been proved, and also cruelty and misconduct on the part of the petitioner which conduced to such adultery, the Court refused to allow a prayer for judicial separation to be substituted for that of dissolution of marriage, in order that the evidence of the misconduct of the petitioner should be expunged. It is doubtful whether the principles of compen- satio criminis and par delictum, as laid down in the Ecclesiastical Courts, are any longer applicable to matrimonial suits under the Divorce Acts, by which greater restrictions have been placed on the relief to be granted in such cases. Lempriere v. Lempriere and JHoebel, 37 Law J. Eep. (n.s.) P. & M. 78 ; Law Eep. 1 P. & D. 669. (c) Beversal of decree. 23. — A wife presented a petition to the Court, praying for a judicial separation from her husband DIVORCE AND MATRIMONIAL CAUSES (r),"(G). 229 "by reason of his cruelty. A copy of the petition, S,s also the usual citation, were personally served upon the husband ; but he did not enter an appear- ance or take any part in the proceedings, except that on one or two occasions he attended before the Judge in chambers on some questions as to the wife's costs. The Court, on the hearing of the petition, decreed a judicial separation. About six months afterwards the husband presented a peti- tion for the reversal of such decree, by reason of its having been made in his absence. In this peti- tion he stated the circumstances under which he absented himself on that occasion, and denied the acts of cruelty alleged by the wife. To this the wife demurred, on the ground that the absence of the petitioner, who had been duly served with the process of the Court, in the suit prosecuted against mm by his wife, was not such an absence as is intended by the statute 20 & 21 Vict. c. 85, s. 23 : — Held, that the absence referred to in the statute is not an absence from want of notice, but a simple non-appearance ; that the petition for reversal must contain the reasons for such absence, as well as a denial of the charges made against the peti- tioner in the first petition ; and that the sufficiency of such reasons will form a material question for the consideration of the Court at the hearing. Phillips V. Phi/lips, 35 Law J. Eep. (n.s.) P. & M. 70; Law Rep. 1 P. & D. 169. (F) Restitution of Conjugai, Rights. (a) Defence to suit for. 24. — In a suit for restitution of conjugal rights brought by the wife, the husband answered, that the separation was by mutual agreement, as evidenced by a deed of separation executed by the petitioner, and that subsequently the petitioner committed adultery : — Held, that the deed was properly introduced into the answer to shew under what circumstances the parties separated. Anques V. Angms, 35 Law J. Rep. (n.s.) P. & M. 93 ; Law Rep. 1 P. & D. 176. 25. — In a smt for restitution of conjugal rights the Court will not reject,' on demurrer, an answer which contains only facts which apparently do not constitute a case of legal cruelty. Stace v. Stace, 37 Law J, Rep. (n.s.) P. & M. 51. (A) AbandonTnent of suit. 26. — The answer to a petition for restitution of conjugal rights charged adultery, and prayed for a judicial separation. At the trial, the petitioner abandoned his prayer for restitution, and offered no evidence : — Held, first, that such abandonment did not take away the respondent's right to go for a judicial separation. Secondly, that the evidence of the parties was admissible upon the question of adultery, there being no " suit or proceeding instituted in conse- que'nce of adultery" within the meaning of 14 & 15 Vict. c. 99, sect. 4, Blackbome v. Blackborne, 37 Law i. Rep. (n.s.) P. & M. 73 ; Law Eep. 1 P. & D. 563. (G) Cbvklty. (o) By the husband. (1) Generally. 27. — The petitioner charged her husband with adultery and cruelty, and prayed for a dissolution of their marriage. The respondent denied both the adultery and cruelty, and further stated that the petitioner had habitually treated him with insolence and neglect, set his orders and wishes at defiance, and for two years wilfully absented herself from his residence. On an application that the answer be amended by striking out the latter part: — Held, that it was properly introduced, as explanatory of the violent conduct attributed to the respondent. Hughes v. Hughes, 36 Law J. Rep. (n.s.) P. & M. 94 ; Law Rep. 1 P. & D. 219. ' 28. — -The essential feature of cruelty (such as, when coupled with adultery, will entitle a wife to a divorce) is, that there must be actual violence of such a character as to endanger personal health or safety, or there must be a reasonable appre- hension of it. Decree of the Judge Ordinary, 36 Law J. Rep. (n.s.) P. & M. 30 ; Law Rep. 1 P. & D. 295, affirmed. Milford v. MUford, 37 Law J. Rep. (n.s.) p. & M. 77 ; Law Rep. 1 P. & M. 716. (2) Undue exercise of authority. 29. — If force, whether physical or moral, is systematically exerted to compel the submission of the wife in such a manner, to such a degree, and during such length of time, as to break dowll her health and render serious malady imminent, the interference of the law cannot be justly with- held, by any Court which affects to have charge of the wife's personal safety. Per Channell, B., with the concurrence of Hannan, J., affirming the proposition as above . laid down by the Judge Ordinary — The object of the Matrimonial Court in exercising its jurisdic- tion in decreeing judicial separation for cruelty, is to free the injured consort from a cohabitation which has been rendered, or which there is immi- nent reason to believe will be rendered, unsafe by the ill-usage of the party complained of. It is obvious that the modes by which one of two married persons may make the life or the health of the other insecure are infinitely various, but as often as perverse ingeniiity may invent a new manner of producing the result, the Court must supply the remedy by separating the parties. The most frequent form of ill-usage which amounts to cruelty is that of personal violence ; but the Courts have never limited their jurisdiction to such cases alone. And a wife does not lose her title to the protection of the Court merely because she has proved unable to bear with perfect patience amd with unfailing propriety of conduct the ill-usage of her husband. Kelly v. Kelly, 39 Law J. Rep. (n.s.) p. & M. 28; Law Rep. 2 P. & D. 59. 30. — The wife being seriously ill, was advised by her medical attendant to leave home for a time. The husband refused. Having become worse, she left homo without his consent, and stayed away some months, which she passed with her relations. 230 DIVORCE AND MATRIMONIAL CAUSES (H). On her return homo she was deposed by her hus- band from her natural position as mistress of his house ; she was deprived of the use of money entirely ; all that she required had to be put down on paper, and her husband provided it if he thought proper. Having refused to tell her hus- band on one occasion of going into town every- where that she had been, an interdict was placed on her going out at all ; those whom she desired to see were forbidden the house, and she was prohibited from writing any letters unless the husband saw them before they were posted. Under this treatment her health again broke down: — Held, an undue exercise of marital authority, and to constitute legal cruelty. Kelly V. Kelly, 39 Law J. Kep. (n.s.) P. & M. 9 ; Law Eep. 2 P. & D, 31. (3) Wilful communication of disease, 31. — A husband who has communicated to his wife a venereal disease will be presumed, in the ab- sence of evidence to the contrary, to have been aware of the state of his health at the time, and therefore to have done the act wilfully. Brown v. Brown, 35 Law J. Eep. (n.s.) P. &M. 13; Law Eep. 1 P. & D. 46. 32. — If a husband, knowing that he is affected with the venereal disease, has connection with his wife, that is an act of such utter recklessness of the health and comfort of his wife, that, if the disease be communicated to her, it amounts to cruelty in the eye of the law. Board/man v. Boardman, Law Eep. 1 P. & D. 233. 33. — To the husband's petition for restitution of conjugal rights the wife pleaded cruelty, viz., the wilful communication of an infectious disease. The husband denied the charge, and on examina- tion by medical men no trace of disease could be found upon him : — Held, by the full Court (Willes, J. dissentiente), first, that it devolved upon the respondent to establish aifirmatively that the pe- titioner, having the disease himself, knew, either from medical advice or from the obvious character of the symptoms, that he had a disease, that it was an infectious disease, and that it existed in such a state and form that connection with his wife was at least distinctly dangerous ; secondly, that in the absence of actual proof of the exjstence of disease in the petitioner, it was incumbent on the respondent, in the medical evidence adduced in support of her charge, to lay the foundation for a scientific conclusion which should take the place of such proof, and from which the jury could argue with reason, first, to the charge of knowledge, and through that to the charge of wilfulness ; and thirdly, that the verdict of the jury having, in ab- sence of such actual or scientific proof, been for the respondent, the petitioner was entitled to a now trial, the respondent's costs in the previous trial being first paid by him. Morphett v. Mor- phett, 38 Law J. Eep. (n.s.) P. & M. 23 ; Law Eep. 1 P. & D. 702. (6) By the wife. 34. — A jxidicial separation granted on the ground of the wife's cruelty, although the parties bad continued to live together in the same house until the hearing. Ji'orth v. Forth, 36 Law J. Eep. (N.s.) P. & M. 122. Semble — That in a suit by a husband for judicial separation on the ground of cruelty, the question is not simply whether the husband's safety is en- dangered, but the Court will also consider the interest of the wife, and whether her conduct may not endanger her safety by provoking the husband to retaliate, A judicial separation on the ground of the wife's cruelty, will not be decreed, except on the condition that the husband makes some reasonable provision for her maintenance. The husband will not be required to give a bond with sureties to secure the payment of such provision. Ibid. (H) Desertion. (a) What amounts to. 35. — A husband who permanently puts an end to cohabitation with his wife against her consent is guilty of desertion, although he may continue to support her. The words "desertion without cause," in section 25 of 20 & 21 Vict. c. 85, means " desertion without reasonable cause," and are equivalent to "desertion without reasonable ex- cuse. Yeatman v. Yeatman, 37 Law J. Eep. (n.s.) P. & M. 37 ; Law Eep. 1 P.-& D. 489. Semble — That conduct short of a matrimonial offence sufficient to found a decree of judicial separation, may be a sufficient cause to bar a de- serted wife of all remedy for the desertion. In- firmity of temper on the part of a wife, unless shewn in some marked and intolerable excess, is not a reasonable cause for desertion. Ibid. 36. — The husband was provfed to have left hia wife, with an expressed intention not to return to cohabitation with her ; and for many years he had not provided her with a maintenance or a home. On the two or three occasions on which he saw her during this period, his sole object was to obtain her money : — Held, that the separation could not be taken to be by mutual consent, because the wife in her letters, written after the desertion, made use of casual expressions, wrung from her by his misconduct, purporting that she did not desire to see him or that he should visit her. Meara V. Mrara, 35 Law J. Eep. (n.s.) P. & M. 33. 37. — No one can desert who does not actually and wilfully bring to an end an existing cohabita- tion. If cohabitation has ceased to exist by mutual consent of the parties or by the adverse act of either (as where the wife having instituted" and failed in a suit for divorce, the husband kept aloof and took no steps towards resuming cohabitation) desertion becomes impossible to either -until theii; common life and common home has been resumed. The refusal by either party of the other's request to resume conjugal relations does not constitute desertion. Fitzgerald v. Fitzgerald, 38 Law J. Eep. (n.s.) p. & M. 14 ; Law Eep. 1 P. & D. 694. 38. — A husband, whilst living apart from his wife, under circumstances which did not constitute desertion, suddenly broke off all communication with her and formed an adulterous connection with another woman : — Held, that these facts DIVORCE AND MATRIMONIAL CAUSES (I). 23 1 shewod that the husband had rosolv«d to abandon his wife, and thorofore constituted desertion. Gatehouse v. Gatehotise, 36 Law J, Hep. (n.s.) P. & M. 121 ; Law Eop. 1 P. & D. 331. (i) Offer to return to cohabitation, (1) Effect of. 89. — Immediately after their marriage in 1846, A and B proceeded to Jamaica, where A (the hus- band) had an appointment. B (the wife) came to England at the end of the year in consequence of ill health, and corresponded with and received an allowance from A until 1851. In 1851 A wrot9 requesting her to return to Jamaica, stating at the same time that if she did not she would hear no more of him. B replied that she was too unwell to return to the island and remained in England. From 1851 to 1856 she neither heard nor received any allowance from A. In 1856 she communicated with him through a friend, the result being an ar- rangement for the continuance of the allowance, but she at no time expressed any desire to return to him. In 1860 A wrote to say that he could no longer pay the allowance, and all communication ceased between them : — ^Held, that after the defi- nite offer made by A in 1851, B should have been able to shew that she subsequently sought a ' renewal of the cohabitation, and, that the circum- stances under which she and A continued to live separate did not constitute desertion on his part. Keech v. Keeoh, 38 Law J. Eep. (n.s.) P. & M. 7 ; Law Eep. 1 P. & D. 641. (2) Evidence of. 40. — In a suit by a wife for judicial separation, on the ground of desertion, the husband traversed the desertion. On the trial of the cause the hus- band gave evidence that he had several times offered to return to the petitioner before the period when her right to judicial separation had accrued. On cross-examination he was asked whether when he made the offers he was not living in adultery with another woman ? The question was objected to, but was allowed on the ground that it was material to shew whether the offer was made honk fide. Mallinson v. Mallinson, 35 Law J. Eep. (n.s.) p. & D. 84 ; Law Eep. 1 P. & D. 93. (o) Effect of deed of separation. 41. — Where the parties have separated volun- tarily under a deed of separation, such separation will not be converted into desertion merely because one of the parties does not fulfil all the terms of the bargain he entered into with the other on parting. Orabb v. Grabb, 37 Law J. Eep. (n.s.) P. & M. 42; Law Eep. 1 P. & D. 601. (d) Agreement by wife to live apart. 42. — The wife agreed, shortly after the mar- riage, in consideration of a sum of money paid to her by her husband's father, not to insist upon her right to live with him. Subsequently she filed a petition for restitution of conjugal rights, but was unable to serve it on her husband, who left the country. On his return to England she again applied to him, but in *ain, to provide a common home, and to renew the cohabitation : — Hold, in a suit by the wife for dissolution of thff marriage, that the wife having agreed to live apart from her husband, and cohabitation never having been resumed after such separation, the husband was not guilty of desertion. BucJcmaster v. Buck- master, 38 Law J. Eep. (n.s.) P. & M, 73. (I) Connivance and Collusion. (a) Connivance and conduct conducing to adultery. (1) By the husband. 43. — If an intimacy springs up between a mar- ried woman and a man of such a character as to be dangerous to her honour, and the husband knows so much of it as to perceive the danger, and yet purposely or recklessly disregards it, he is guilty of wilful misconduct which may conduce to adultery. Bering v. Bering and Blaktley, 37 Law J. Eep. (n.s.) P. & M. 52 ; Law Kep. 1 P. & D. 631.. 44. — The "wilful neglect or misconduct" which, by the 31st section of the 20 & 21 Vict. c. 85, is made a bar to the husband's right to a decree is not that neglect or misconduct which may have led to any particular act of adultery after the wife's lapse from virtue, but the neglect or misconduct which has directly conduced to her. fall. St. Paul V. St. Paul and Farquhar, 38 LaW J. Eep. (n.s.) p. & M. 57 ; Law Eep. 2 P. & D. 93. 45. — The petitioner, having married a woman of loose character, in a short time separated him- self from her without reasonable cause, and in- duced her to reside away from her friends in a place where she was especially liable to tempta- tion : — Held, that he had been guilty of misconduct, which conduced to adultery, and that the petition must be dismissed. Baylis v. Baylis, Teevan and Cooper, 36 Law J. Eep. (n.s.) P. & M. 89 ; Law Eep. 1 P. & D. 395. (2) By the wife. 46. — Husband and wife agreed to live separate and apart. The agreement was silent as to the future life of the husband, but it was alleged tha^ when it was entered into the wife was aware that he was living with another woman, and that the understanding was that the intimacy was to bo continued : — The Court investigated the circum- stances under which the agreement was made, and being satisfied that the wife had not connived at the husband's adultery, decreed judicial separa- tion on jier petition. Ross v. Boss, 38 Law J. Eep. (N.s.) P. & M. 49 ; Law Eep. 1 P. & D. 734. To constitute connivance on the part of the wife it is not necessary that there should be a willing consent to the adultery of the husband. She may be unwilling to consent to his living with another woman; but if under pressure of circumstances; short of force in the nature of duress, she should withdraw her scruples, that would amount to connivance. 232 DIVORCE AND MATEIMONIAL CAUSES (K), (M). (4) Collusion. 47. — If it be shewn that a husband has pro- mised his wife to commit adultery in order that she may obtain a divorce, and the wife follows a course the husband has indicated to watch him, and adultery takes place subject to that under- standing, and evidence is obtained accordingly, the Court will hold that the parties are acting collusively, and will dismiss the petition. Todd V. Todd, 35 Law J. Eep. (n.s.) P. & M. 34 ; Law Hep. 1 P. & D. 121. 48. — A husband having obtained a decree nisi in a suit in which neither of the respondents appeared, the Queen's Proctor intervened, and (inter alia) charged collusion between the peti- tioner and the respondent, and that material facts had not been brought before the Court: — Held, by the Court, on reversing the decree and dismissing the petition, first, that the fact that the husband before and after the institution of the suit had had frequent interviews with his wife, and had then given her money, and urged her not to oppose the suit, established collusion ; secondly, that the fact that the husband had been in the habit of going with his wife and the co-respondent to places of amusement, and of allowing her to dance frequently with the co-respondent there, and then leaving her in the care of the co-respondent, was conduct conducing to the adultery, and as such was a material fact which ought to have been brought before the Court. Barnes v. Barnes and Grimwade, (The Queen's Proctor intervening) 37 Law J. Rep. (n.s.) P. & M. 4 ; Law Eep. 1 P. & D. 505. A wife being entitled to alimony pendente lite, the voluntary gift of money by a husband to her during the progress of a suit by him for a divorce, does not per se prove collusion. Ibid. (K) Parties to Suit. (a) Lunatic respondent, [See No. 6 supra.] (b) Co-respondent. 40. — "Where the only evidence that a wife has committed adultery with a man is the wife's state- ment, the husband will be excused from making that man a co-respondent. Jinking v. Jinking, 36 Law J. Eep. (n.s.) P. & M. 48; Law Eep. 1 P. & D. 330. 50. — A husband petitioning for a divorce must obtain leave to proceed without making a co-res- pondent, although the petition only charges adul- tery with a person unknown. Fitt v, Pitt, 37 Law J. Eep. (n.s.) p. & M. 24 ; Law Eep. 1 P. & D, 464. (L) Pleadino. (a) By Queen's Proctor intervening. 51. — In a suit for dissolution of marriage by reason of the adultery of the respondent and co- respondent a decree nisi was made. Subsequently certain parties intervened and filed affidavits, and two questions were directed to be tried by a special jury, namely, whether the petitioner had connived at the adultery of the respondent, and whether the decree nisi had been obtained by collusion. After- wards the Queen's Proctor obtained leave to intervene, and, without filing affidavits, pleaded collusion, that material facts had not been brought to the knowledge of the Court, connivance, and misconduct which conduced to the adultery: — Held, that when the Queen's Proctor has obtained leave to intervene, he may plead any material ' facts in addition to the plea of collusion ; and that it is not necessary he should elect to proceed under the first or second part of the 23 & 24 Vict, c. 144, s. 7, and vary his proceedings accordingly. Dering v. Dering and Blakeley, 37 Law J. Eep. (n.s.) p. & M. 35 ; Law Eep. 1 P. & D. 631. 52. — The petitioner in a previous suit had asked for a dissolution of his marriage by reason, of the adultery of his wife, and the co-respondent in that suit alleged incestuous adultery against the petitioner. The adultery of the petitioner and the respondent having been proved in that suit, the petition was dismissed. The petitioner then filed a second petition with the same prayer, but the acts of adultery charged against the wife wore with other men than the co-respondent of the first suit. The Queen's Proctor intervened, and pleaded the incestuous adultery of the petitioner, and, fur- ther, that by reason of such incestuous adultery having been proved, the previous petition had been dismissed. The petitioner demurred to the last part. of the answer of the Queen's Proctor, on the ground that he would not be debarred from pro- ceeding in this suit, or for contending for his inno- cence of the incestuous adultery charged by reason of the judgment given in the first suit. The Court overruled the demurrer. The question whether the decree in the former suit was admissible in evidence in this, and if so, whether such evidence would be conclusive, cannot be decided on demurrer, but must be determined at the hearing when the evidence is tendered. Conradi v. Conradi and others, 36 Law J. Eep. (n.s.) p. & M. 68 ; Law Eep. 1 P. & D. 391. (i) Separation deed in suit for judicial separation. 63. — In answer to a charge of cruelty and a prayer for judicial separation, the respondent may allege that the parties have been living apart i&der the sanction of a deed executed by them, not as a direct bar to the suit, but as a fact, amongst others, to shew that the petition was not presented with a bonS, fide intention to obtain protection, but for a collateral purpose. Williams v. Williams, 35 Law J. Eep. (n.s.) P. & M. 85 ; Law Bep. 1 P. & D. 178. (e) Beforming pleadings. [See (M) Amendment.] {d) Irregularity: misnomer, [See No. 138 infra.] (M) Amendment. («) Of petition. 54. — The petitioner filed a petition for alimony. MVOECE AND MATBIMONIAL CAUSES (N). 233 in which she set forth certain property which she asserted she held to her separate use, and the respondent answered the petition on oath. The Court consequently permitted the petitioner to amend her petition for alimony, by adding thereto allegations of further income of the respondent, and a denial of the greater part of the income she had attributed to herself in her petition. Harker V. Harker, 37 Law J. Rep. (n.s.) P. & M. 11. 55. — A claim for damages having been formally withdrawn, the Court refused to allow it to be re- instated in the petition, the petitioner having failed to show that it was withdrawn in error, or that an altered state of circumstances had arisen which would justify its reinsertion. Sykesv. Sykes and Smith, 38 Law J. Rep. (n.s.) P. & M. 12. 56. — The wife petitioned for a dissolution of her marriage, by reason of the husband's adultery and cruelty, and proved both charges. The decree nisi was suspended at her request, and subse- quently she asked to be allowed to amend the petition, by substituting a prayer for judicial separation. The respondent opposed the altera- tion, and alleged that the petitioner herself had been guilty of adultery. The Court granted liberty to the respondent to file affidavits in sup- port of the charge ; and no affidavits being filed, allowed the petition to be amended as prayed. Mycock V. Mycock, 39 Law J. Rep. (n.s.) P. & M. 56 ; Law Rep. 2 P. & D. 98. 57. — On the hearing of her petition for dissolu- tion of marriage, the wife proved the adultery of her husband, but failed to establish the charge of desertion. The Court allowed her subsequently to amend her petition by adding a charge of cruelty, but intimated that strict proof would be required to support it. Parkinson, v. Parkinson, 39 Law J. Rep. (N.S.) P, & M. 21 ; Law Rep. 2 P. & D. 27. (A) Of answer. 58. — The wife having instituted a suit against her husband for restitution of conjugal rights, he filed a separate petition praying for a dissolution of his marriage by reason of his wife's adultery. On an application, on behalf of the wife, to be allowed to reform her answer in the suit for disso- lution, and to add a prayer to it for restitution of conjugal rights, the Court held that a decree of restitution is not a relief for desertion, as contem- plated by the statute 29 & 30 Vict. c. 32, s. 2, and that, therefore, such an addition would be useless. And the Court further held, that the suit for resti- tution should be stayed until that for dissolution had been disposed of. Drysdale v. Drysdale. Brysdale v. Drysdale, Corbet and Gane, 36 Law J. Eep. (n.s.) p. & M. 39 ; Law Rep. 1 P. & D. 365. 59. — An application was made to the Court to amend an answer by adding to it a fresh charge of adultery. Notice of the intended application was served upon the opposite party the evening previ- ously. The facts in issue were appointed to be tried by a common jury, at the sittings then in progress : — Held, that the rules as to notice were not applicable. Although the opposite party has only four days fallowed (Rule 36) to amend his answer to such Digest, 1865-70. amended petition or answer, the Court will, if it be advisable, direct that the cause shall not be heard until the expiration of ten days from that on which the amended answer was filed. Hitch- cock V. Hitchcock, 36 Law J. Rep. (n.s.) P. & M. 40. (c) Of decree or order. 60. — A decree nisi by mistake mis-stated the place where the marriage was solemnised. On motion, the Court ordered it to be amended. Skeats V. Skeats and White, 35 Law J. Rep. (n.s.) P. & M. 47. 61.— In making an order under 20 & 21 Vict. c. 85, s. 45, and 22 & 23 Vict. e. 61, B. 5, the Court failed per incuriam to give the husband (the peti- tioner) the interest in the wife's property which it intended. Before the error was discovered the order was acted on by the petitioner, and appealed against by the respondent. The Court held, that it had power to amend the order so as to carry out its original intention, and intimated that it would follow the practice of the Court of,Chancery, which varies its orders, but not without re-hearing when the order has passed and been entered as a decree. The matter was accordingly re-heard, and fresh circumstances having been brought to the know- ledge of the Court the parties were directed to attend at chambers that the order might be drawn anew. Cavendish y. Cavendish and Bochefoucauld, 38 Law J. Rep. (n.s.) P. & M. 13. (N) Evidence. (a) Of the parties. [See (0) Witness and No. 8.] (A) Of admissions. 62. — In a suit by a husband for dissolution of marriage, the only evidence of the respondent's adultery was admissions made by her. The Court being satisfied that the admissions were genuine, and that there was no ground to suspect collusion, dissolved the marriage. Williams v. Williams and Padfield, 35 Law J. Rep. (n.s.) P. & M. 8 ; Law Eep. 1 P. & D. 29. (c) Depositions. 63. — A requisition was issued to the Judges of a foreign Court to take the evidence of certain witnesses residing within their jurisdiction. In- terrogatories and cross-interrogatories were at- tached to the requisition, and were before the Judge who examined the witnesses, but he only put such questions and in such form as he thought proper. The agents on both sides were present at the examination, and did not object to ask that further questions should be put to either of the witnesses: — Held, that the depositions might be read. Hitchins v. Hitchins, 35 Law J. Rep. (n.s.) P. & M. 62 ; Law Eep. 1 P. & D. 153. {d) Proceedings in other suits. [See Nos. 2, 52, supra.] 64. — On a petition for a dissolution of marriage by reason of the adultery and cruelty of the res- pondent, the second charge was established by the HH 234 piVOECE AND MATEmOUIAL CAUSES (O). production of a previous decree for judicial separa- tion on account of cruelty and by proof of the identity of the parties. Bland y. Bland, 36 Law J. Eep. (n.s.) p. & M. 104 ; Law Eep. 1 P. & D. 237. (e) Of marriage. 65. — In a suit by a husband for dissolution of marriage the only evidence of the marriage was that the petitioner and the respondent had, in May, 1850, left England together for the purpose of being married at Gretna Green, that they shortly returned and stated that they "had been married, and lived together for many years as man and wife: — Held, sufficient evidence of the marriage. Patrickson v. Patriokson, 36 Law J. Eep. (n.s.) P. & M. 48 ; Law Rep. 1 P. & D. 86. (/) Qf adultery. 66. — The only evidence in support of a charge of adultery against a husband in a suit for judicial separation was the testimony of the supposed para- mour, a woman of loose character. The Court declined to decide, upon this e^ndence, whether or not adultery had been committed, but held that the charge had not been established with a sufficient certainty to enable it to pronounce a decree, and dismissed the petition. Ginger v. Ginger, 36 Law J. Eep. (n.s.) P. & M. 9 ; Law Eep. 1 P. & D. 37. [And see Evidence, 17.] ig) Of bigamy. 67. — The Court will allow bigamy to be proved by affidavit where there has been a conviction, if tlie witnesses who would prove it reside at a dis- tance from London, and oral proof would be ex- pensive. Macartney v. Macartney, 36 Law J. Kep. (n.s.) p. & M. 38 ; Law Eep. 1 P. & D. 269. (h) Of identity. 68. — In an undefended suit for dissolution of marriage, the only evidence as to the identity of the respondent was that of the petitioner himself. The Court refused to act on it without corrobora- tion. Harris v. Harris and Milton, 39 Law J. Eep. (n.s.) p. & M. 86 ; Law Eep. 2 P. & D. 77. (i) Of respondent s faculties on petition for 69. — The wife petitioned for alimony pending her suit for judicial separation. The respondent, who carried on the business of a quack doctor at Kingston-on-Hull, filed no answer. The Court, in order to save expense, allowed the respondent's faculties to be proved by affidavit ; but required that notice should be served on the respondent that the affidavits had been filed in the Eegistry, and that it was intended to asli the Court to allot alimony upon them. Mumby v. Mumhy, 38 Law .T. Bep. (n.s.) P. & M. 72 ; Law Eep, i P. & D. 701. (0) Witness. {a) Competency. [See No. 41 supra.] 70,— The proviso in 32 & 33 Vict. c. 68, s. 3, that " no witness, whether a party to the suit or not, shall be liable to be asked, or bound to an- swer, any question tending to shew that he or she has been guilty of adultery," does not render inadmissible the evidence of a witness that he or she has committed adultery. The witness may claim the protection of the statute or give the evidence, but a party to the suit cannot object to its admission. Hehblethwaite V. Hehblethwaite, 39 Law J. Eep. (n.s.) P. & M. 15; Law Eep. 2 P. & D. 29. 71.— The 2nd section of 29 Vict, c 32, which empowers the Court to grant a judicial separation when prayed in an answer to a suit for dissolution of marriage, has not altered the law of evidence. Where, therefore, an answer to a suit for disso- lution of marriage on the ground of adultery charges cruelty, and prays for a judicial separation, the evidence of the parties upon the question of cruelty is inadmissible. Bland v. Bland and Stor- mont, 37 Law J. Eep. (n.s.) P. & M. 74 ; Law Eep. 1 P. & D. 513. (b) Examination and cross-examination. ( 1 ) On petition for alimony. 72. — A wife may subpoena and examine her husband in support of her petition for alimony. Anderson v. Anderson, 37 Law J. Rep. (n.s.) P. & M. 64 ; Law Eep. 1 P. & D. 512. 73. — A wife when she is entitled to examine witnesses in support of her petition for alimony may subpcena her husband as a witness. Jennings v. Jennings, 35 Law J. Eep. (n.s.) P. & M. 12; Law Eep. 1 P. & D. 35. 74. — The wife iiled her petition for alimony pendente lite. The husband filed no answer thereto : — Held, that he was not entitled to cross- examine witnesses called in support of the petition. Constable v. Constable, 39 Law J. Eep. (n.s.) P. & M. 17 ; Law Eep. 2 P. & D. 17. (2) In suit for dissolution. 75. — in a defended suit for dissolution of mar- riage, the Court will not allow the petitioner to be examined under the 43rd section of 20 & 21 Vict, c. 86, for the purpose of explaining his conduct, where the matter requiring explanation is one as to which the respondent, . if a. competent witness, would have been able to give evidence. Baylis v. Baylis, Teevan and Cooper, 36 Law J. Bep. (n.s.) P. & M. 130. 76. — A co-respondent from whom damages are claimed, who has appeared but has not filed an answer, cannot at the hearing cross-examine the petitioner's witnesses, nor adiess the jury upon the question of damages. He is, however, entitled to be heard upon the question of costs ; and when the decree has been pronounced, he will, as to that question, be allowed to recall and cross-examine DIVORCE AND MATRIMONIAL CAUSES (P). 235 the petitioner's witnesses, and also address the Court. Lyne v, Lyne and Blackney, 37 Law J. Rep. (n.s.) p. & M. 9 ; Law Rep. 1 P. & D. 608. 77. — Suit by wife for dissolution on ground of adultery and cruelty (imparting venereal disease). Queen's Proctor intervenes, alleging collusion and adultery of wife. The wife was examined under the above section, to prove the cruelty, and the husband was examined on the same issue : — Held, that the Queen's Proctor was entitled to cross- examine both parties on the issues raised by him of collusion and adultery of wife, although he had not traversed the allegation of cruelty. Boardman V. Boardman, Law Rep. 1 P. & D. 233. (P) Alimony. (a) Pendente lite. (1) Wi^n granted. 78. — On an application for alimony pendente Ute on the husband's answers, from which it ap- peared that he was a master mariner and a part- owner in a sailing vessel, but that he had not had any employment for three months, the Court, nevertheless, allotted alimony on the average of his earnings during the previous- three years. Thomp- son V. Thompson, 37 Law J. Rep. (n.s.) P. & M. 33 ; Law Rep 1 P. & D. 553. 80. — ^The Court refused to rescind an order for alimony pendente lite on an allegation, supported ■by affidavits, that the wife was maintaining herself by prostitution ; the wife in her affidavit denying the truth of the allegation, and the charge of pros- titution being the main question in the suit. Patch v. Patch, 38 Law J. Rep. (n.s.) P. & M. 27. (2) When refused. 81. — Alimony pendente lite refused to a wife, who, for some time before the institution of the suit had been, and still was, supporting herself in service. George v. George, 37 Law J. Rep. (n.s.) P. & M. 17. 82. — Order for alimony pendente lite refused, on the ground that the wife was shewn to have been given by her husband since the commence- ment of the suit a sum sufficient for her support pending suit. Coombs v. Coombs, 36 Law J. Rep. (N.s.) P. & M. 21 ; Law Rep. 1 P. & D. 218. 83.— Where husband and wife have been living separate for some years before the wife institutes her suit, and the wife is able to support herself by her own exertions, the Court will not allot alimony pendente lite. Burrows v. Burrows and George v. George, Law Rep. 1 P. & D. 555. 84. — The Court refused to make an order for alimony pendente lite, after a decree nisi had been obtained for a dissolution of marriage on account of wife's adultery, her petition for alimony and subsequent proceedings thereunder having been needlessly delayed. Noblett v. Nobktf, Law Rep. 1 - P, & D. 651. (3) When and how long payable. 85. The wife obtained a decree nisi for the dissoliitioh of her marriage by reason of her hus- band's adultery and cruelty, with costs. Subse- quently the Queen's Proctor intervened, and proved that the petitioner had been herself guilty of adultery, and the petition was dismissed. Alimony had been allotted pendente lite : — Held, that the wife was entitled to be paid by the husband ali- mony up to the day on which her adultery had been proved, and costs, only to the extent of the money paid into the Registry to meet the expenses of the suit. Whitmore v. Whitmore, 35 Law J. Rep. (n.s.) p. & M. 39 ; Law Rep. 1 P. & D. 96. 86.^The respondent in a matrimonial suit cohabited with and was supported by the co-res- pondent for some time after the filing of the peti- tion and the service of the citation. In allotting alimony pendente lite, the Court ordered that the alimony should run from the date at which the respondent ceased to cohabit with the co-respondent, instead of from the service of the citation. Holt v. Holt and Davis, 38 Law J. Rep. (n.s.) P. & M. 33 Law Rep. 1 P. & D. 610. (b) Permanent Alimony. (1) When allowed or refused. 87. — If the husband can prove that hia wife has sufficient means of support independent of him, even although they be derived from the co- respondent, she will not be entitled to an allot- ment of alimony. Madan v. Madan and De Thoren, 37 Law J. Rep (n.s.) P. & M. 10. 88. — The Court refused to grant to the re- spondent, the wife, alimony out of her husband's ^the petitioner's) income, which was small, the wife's father having promised before her marriage to pay her 1001. a year, and having to that time paid such sum once in each year. Eaton v. Eaton, Law Rep. 2 P. & D. 51. 89. — The only apparent income of the husband being a ' rentcharge, payable to trustees, but it being altogether discretionary with them what, jf anything, they should pay the husband ; the Court, on judicial separation at suit of the wife, decreed alimony to continue until the respondent satisfied the Court' that payment of the rentcharge had ceased. The alimony not being paid, the Court granted a general sequestration against the goods of respondent, but refused a sequestration against the rentcharge in the hands of the trustees. Clinton v. Clinton, Law Rep. 1 P. & D. 215. (2) Amount of. 90. — In allotting permanent alimony in suits for judicial separation, the Court is bound by the practice of the Ecclesiastical Courts, and cannot allot a larger proportion than one moiety of the joint income, although the greater part of the fortune may have come from the wife. Haigh v. Haigh, 38 Law J. Rep. (n.s.) P. & M. 37 ; Law Rep. 1 P. & D. 709. 91. — The wife during the coverture became en- titled to a small estate of inheritance. On the dissolution of the marriage on her petition, by reason of the husband's adultery and cruelty, the Court ordered that he should pay to the wife an annuity to the amount of two-thirds of the rents, HH 3 236 DIVOECE AND MATEIMONIAL CAUSES (Q). and secure such annuity on the property. George V. George, 38 Law J. Rep. (n.s.) P. & M. 34 ; Law Eep. 1 P. & D. 555. Quaere — ^Does the husband's interest in the wife's freehold estates continue after the termina- tion of the coverture by a dissolution of the mar- riage. Ibid. 92. — If the husband receives a larger salary by reason of the increased expense of his position, the wife will not be entitled to the usual propor- tion of such income. Louis v. Louis, 35 Law J. Eep. (n.s.) p. & M. 92 ; Law Eep. 1 P. & D. 230. 93. — The wife obtained a decree for judicial separation, on the ground of the adultery of the husband, who was of very profligate habits. The father and sister of the respondent offered to take charge of the two children of the marriage, daughters, and to bring them up in a manner suit- able to their position in life. The Court declined to deprive the mother of the custody of the children, and, in addition to perma- nant alimony at the rate of one-third of the joint ' income (798/.), ordered that the respondent should contribute 30/. a year towards their maintenance and education. Milford v. MUford, 38 Law J. Eep. (n.s.) p. & M. 63. (3) How payable. 94, — An ordey for the payment of alimony to the wife's solicitor or proctor will not be made except upon the written application of the wife. When alimony is so paid, the solicitor is not entitled to charge for receiving it. Margetson v. Margelson, 35 Law J. Eep. (n.s.) P. & M. 80. (c) Maintenance for children. [See supra, 93.] (Q) Childeen, Custody of.] (ffl) Given to husband. [See infra, 96, 106.] (6) GHven to wife. 95. — Where a suit by the husband against the wife for dissolution on the ground of adultery is pending, and the husband had taken away her children of tender age, and placed them with a stranger, and the wife's health was suffering from the separation, the Court ordered the custody of the children to be given to the mother pending the suit; distinguishing this case from Cartlidge v. CartMge, 2 Sw. & Tr. .167, and 31 Law J. Eep. (n.s.) p. & M. 85. Barnes v. Barnes and Beau- mont, 38 Law J. Eep. (n.s.) P. & M. 9 ; Law Eep. 1 P. & D. 463. 96. — In a case in which the wife had obtained a judicial separation by reason of the desertion of lier husband, the Court ordered that the children of the marriage under the age of sixteen years should remain in her custody until further orders. MaUinsony. Mallinson, 36 Law J. Eep. (n.s.) P. & M. 84 ; Law Eep. 1 P. & D. 221. 97.— The Judge Ordinary having granted a decree dissolving the marriage between the parties, OQ the petition of the wife, farther ordered that on certain conditions, and after due notice, she, should have access to her children. The respon- dent for a time removed himself and one child beyond the jurisdiction of the Court, and on his return denied to the petitioner access to the child on the terms laid down by the Court. On the suggestion that he was again about to leave this country, and in consideration of the approaching vacation, the Court ordered that the child should be delivered up to its mother forthwith, and that she should have the custody of it until the fifth day of the following term. Portugal v. Portugal, 35 Law J. Eep. (n.s.) P. & M. 103. 98. — Where judicial separation had been de- creed at the suit of the husband, on the ground of cruelty, and afterwards the wife moved for leave of access to the children of the marriage, the husband will not be saddled with the costs of the motion, unless he had refused reasonable access since the decree of judicial separation. Bacon v. Bacon, Law Eep. 1 P. & D. 167. (c) Given to third 'party. 99. — When a marriage has been dissolved on the ground of the misconduct of the husband, the Court, although it may deem him unfit to have the care of the children of the marriage, will not de- prive him of his legal right to their custody in favour of the wife if she also is unfit to be in- trusted with them. In such a ease it will give the custody of the children to some third person. Chetwynd v. Chetwynd, 35 Law J. Eep. (n.s.) P. & M. 21 ; Law Eep. 1 P. & D. 39. The Court, in exercising the power given to it by 22 & 23 Vict. c. 61, s. 6, of altering marriage set- tlements, will take into consideration the fortune of the wife, the ability of the husband, and the conduct of the parties. Ibid. After a marriage has been dissolved on the ground of the husband's adul tery and cruelty, ap- plications for the custody of tie children were made by both the parents, and also by the rela- tives of the husband who had been allowed to intervene and be heard upon the question. An application was also made by the petitioner for an alteration of the marri:ige settlements. The Court, being of opinion that neither of the parents was fit to have the care of Ihe children, ordered that the interveners should have the cus- tody of them, the parents being allowed reijsonable access. With respect to the settlements, estimat- ing the husband's annual income, after paying the wife's outstanding debls and the cost of the suit, at 1,159/., of which 943/. was the income of settled property, to which the wifehad contrilrated 3,000/., it ordered that out of the settled property 200/. a year should be paid to the interveners for the maintenance and education of the childreii, and 250/. a year to the wife dum casta et sola vixerit. Ibid. (d) In suits for restitution. 100. — The Court has no power in suits of restitution of conjugal rights, to make any order as to the custody of children of the marriage. Chambers v. Chambers, 39 Law J. Eep. (n.s.) P, & M. 56. DIVORCE AND MATRIMONIAL CAUSE,S (R). 237 (R) Rectification of Sf.tti,bmi!nt. (a) What deeds may be rectified. 101. — Husband and wife having agreed to live separate and apart, executed a deed of separation, by -whieli the husband covenanted to pay to the wife an annuity of 200Z. a year during their joint lives, the annuity to be reduced to 150i. a year on the decease of the husband, and to 50^. a year if the wife re-married : — Held, that it was a post- nuptial settlement within the terms of sect. 5. of the 22 & 23 Viet. c. 61, and an order was made for ■its revision after a decree for dissolution of the marriage by reason of the wife's adultery. Wors- ley V. Wordey and Wignall, 38 Law J. Rep. (n.s.) P. & M. 43 ; Law Rep. 1 P. & D. 648. (i) Under what circumstances. 102. — The Judge Ordinary has no jurisdiction, under 22 & 23 Vict. c. 41, h. 5, to inquire into and mate orders in respect of settlements made on the parties whose marriage is the subject of its decree, if there be no child of such marriage living at the time the decree is pronounced. Bird v. Bird, 35 Law J. Rep. (n.s.) P. & M. 102; Law Rep. 1 P. & D. 231. 103. — Held, by the Judge Ordinary and Mon- tague Smith, J. (Pigott, B. dissentiente), that the Court has no power to deal with marriage settle- ments under section 5 of the 22 & 23 Vict. c. 61, where therelias been issue of the marriage, unless a child be still living. Corrance v. Corrance and Lowe, 37 Law J. Eep. (n.s.) P. & M. 44 ; Law Rep. 1 P. & D. 495. The trustees of a marriage settlement may be heard against, but not in favour of, an alteration of the settlement. Ibid. 104. — The Court has no power under section 5 of 22 & 23 Vict. c. 1, to deal with marriage settle- ments unless there be issue living at the date of the order, even though there may have been such at the date of the decree of dissolution of the marriage. Corrance v. Corrance (see last case), confirmed. Graham v. Graham and Griffith, Law Rep. 1 P. & D. 711. 105. — On the marriage of the parties, the fa- ther of the petitioner covenanted to pay to the respondent the annual sum of lOOi. after the death of the petitioner. The marriage was dis- solved by reason of the respondent's adultery. The Court ordered that the money should be ap- plied for the benefit of the child of the marriage, but held that it had no power to deprive the respondent of her right under the covenant on the death of the child. Sykes v. Sykes and Smith, 39 Law J. Rep. (n.s.) P. & M. 62. (c) For whose benefit. 106.^0n an appeal from an order made by the Judge Ordinary, relative to the settlement of ■the parties to the marriage, 36 Law J. Rep. (n.s.) P. & M. 38 ; Law Rep. 1 P. & D. 437, the fuU Court held that the discretion of the Judge Or- , dinary had been well exercised therein. Although the 22 & 23 Vict. c. 61, a. 5, authorises the Court to make orders relative to such settlements, either for the benefit of the children of the marriage or of their respective parents, the Court will not be precluded by these words from making an order for the benefit of the innocent parent as well as of the child of the marriage. March v. March and Falumbo, 36 Law J. Rep. (n.s.) P. & M. 65 ; Law Rep. 1 P. & D. 440. ' When an order is made for the payment of an annual sum of money to an individual, even if it be to the father, for the benefit of a child of the marriage, the limitation should be added " so long as the child remains in his custody." Ibid. 107. — A sum of money, the wife's fortune, had been settled on marriage, to the separate use of the wife for life. A decree of divorce having been pronounced against her, at the suit of the hus- band, the Judge Ordinary made an order, under the 22 & 23 Vict. c. 61, b. 5, that the trustees of the settlement should stand possessed of the fund, in trust for the person who, under the settlement, would have been entitled were the wife dead. The fund being in Court, the husband, as the person so next entitled, applied for an order for the payment of the income to him. The Master of the Rolls considered that the Court of Divorce had no jurisdiction to make the original order, and refused the application ; but the Lords Jus- tices held that the Court of Divorce had juris- diction, and ordered the income to be paid to the husband. Pratt v. Jenner, ex parte Jenner, 35 Law J. Rep. (n.s.) Chanc. 682 ; Law Rep. 1 Chanc. 493. (d) To what extent. 108. — After decree absolute, dissolving a mar- riage on the petition of the husband, the husband died -.—Held, the guardian of the children of the marriage is the proper person to petition for an alteration of settlements. The Court ordered the respondent to surrender for the benefit of the chil- dren her interest in the property settled which came from the husband, but refused to strip her of property settled which came from her father, it not being more than suf&cient to maintain her in her station of life. Smithe v. Smithe, Law Rep. 1 P. & D. 587. 109. — On the marriage of the parties the father of the respondent (the wife) brought into settle- ment a sum of 3,000^., in which the first life- interest was given to the respondent. Her conduct was bad, and after her marriage with the petitioner had been dissolved, she intermarried with the co-respondent, an officer in the army. The Court ordered that the total income derived from the fund in settlement should be applied, during the lifetime of the respondent, to the maintenance of the three children of the marriage. St. Paid v. St. Paul and Farquhar, 39 Law J. Rep (n s ) P. & M. 50. 110.— The Court refused to carry out altera- tions, in a settlement, agreed upon between the parties, whose marriage had been dissolved, so aa to extinguish the power of appointment given to the respondent by the settlement) or to affect the appointment of .new trustees. Lavies v. Dames 238 DIVORCE AND MATRIMONIAL CAUSES (S). and M'Carihy, 37 Law J. Eep. (n.s.)P. & M. 17 ; Law Eop. 1 P. & D. 227. (S) Peactioe. (a) Petition. (1) Amendment. [See (M) (a) supra.] (2) Dismissing. 111. — Where the wife, the petitioner, did not appear on the day of hearing, the Court, before dis- missing the petition, required that a rule to shew causeshould be first served upon her, and intimated that in all such eases that practice should be fol- lowed. Curtis Y. Curtis, 38 Law J. Kep. (n.s.) P. & M. 9. 112. — The Court has no power to dismiss a co-respondent from a suit on the ground of delay- in prosecuting the suit. The application in such a case should be for a rule nisi for the dismissal of the petition. Hancock y. Hancock and Smith, 36 Law J. Eep. (n.s,) P. & M. 86 ; Law Eep. 1 P. & D. 334. 113. — Where the husband sued for dissolution of marriage, and the wife denied her adultery and charged desertion and claimed a judicial separa- tion on that ground by her answer, the Court will not, on the husband's application, dismiss the peti- tion, the wife objecting as she has a right to prove her case for relief ; and is also entitled to keep the suit alive, that she may enforce orders of ali- mony not yet paid. Schira v. Sohira and Sampajo, Law Eep. 1 P. & D. 466. (3) Effect of dismissal : estoppel. 114. — A petitioner, whose petition for judicial separation, on the ground of cruelty has been dis- missed for defect of proof, is estopped from setting up the same charges of cruelty in a suit for disso- lution of marriage on the ground of adultery and cruelty. Finneyy. Finney, 37 Law J. Eep. (n.s.) P. & M. 43 ; Law Eep. 1 P. & D. 483. (a) Title of affidavit in suppcyrt. 115. — The affidavit in verification of the peti- tion should not be entitled in the cause, for at the time of filing there has been no citation, and therefore no cause, but it should be entitled in the matter of the petition. Steed v. Steed, 36 Law J. Eep. (n.s.) p. & M. 50 ; Law Eep. 1 P. & D. 364. (i) Citation : Service of. 116. — An undertaking by the respondent's soli- citor to appear is not sufficient ; the citation must be served upon the respondent. De Niceville v, Se Niceville, 37 Law J. Eep. (n.s.) P. & M. 43. 117.— Where a respondent had been personally served with the citation at Shanghai, and the cita- tion had been returned without the certificate of service required by Rule 13 indorsed on it, the Court allowed the suit to proceed without re-ser- vice. Coghill V. Coghill and Laureiro, 3S Law J. Rep. (n.s.)P. & M, 32; Law Rep. I P. & D. 26. (c) Appearance. (1) Non-appearance: Effect of. [See No. 23 supra.] (2) Leave to appear. 118.— In a suit by a husband for dissolution of marriage after the time for appearing had elapsed, the Court gave the respondent leave to appear and file an answer, on condition that she would, before the trial, allow herself to be confronted with the petitioner's witnesses, for the purpose of identifi- cation. Hindmarsh v. Hindmarsh and Hussey, 35 Law J. Eep. (n.s.) P. & M. 31 ; Law Eep. 1 P. &D. 307. (d) Answer : petition for aHmmvy. 119. — The answer to a petition for alimony should state what the husband's income has been during the three years prior to the commencement of the suit. It may,' however, add to this a state- ment of any facts from which the Court may draw a conclusion as to his present income. Williams V. Williams, 36 Law J. Rep. (n.s.) P. & M. 39; Law Eep. 1 P. & D. 370. (c) Particulars, 120. — Where the Queen's Proctor intervenes and charges the suppression of material facts, without specifying such facts, the petitioner is entitled to particulars. Barnes v. Barnes and Grimwade, 37 Law J. Rep. (n.s.) P. & M. 4 ; Law Rep. 1 P. & D. 605. 121. — If it should appear on the face of the petition for alimony pendente lite that the wife has a large separate property, the Court would probably not compel the husband to set out in his answer a detailed account of his income. Black- hurney. Blackbume, 36 Law J. Eep. (n.s.) P. & M. 88. (/) Evidence : leave to give. 122. — After the cause had been heard, and the Court taken time to consider its decision, the peti- tioner (the wife) applied to be allowed to give evidence of further acts of cruelty, which she alleged took place at a date later than that to which she deposed at the trial. The Court refused the application, the petitioner having repeatedly stated, in the course of her examination, that the last act of cruelty took place at Easter, 1863, and that also being the latest date given in the petition. Topper V. Topper, 38 Law J. Eep. (n.s.) P. & M. 36.- {g) Trial of causes. (1) Directions as to mode of trial, 123. — Upon the expiration of the time fixed in the citation for the respondent's entering an appearance, if no appearance has been entered, the Court may direct the mode of trial. In such a case it is not necessary to wait until twenty-one days from the service have elapsed. Woody. Wood and Hutchings, 36 Law J. Eep. (n.s.) P. & M. 48; Law Eep. 1 P. & D. 266. (2) By affidavits. 124. — Where no answe; was filed in a suit for restitution of conjugal rights, the Court allowed DIVORCE AND MATRIMONIAL CAUSES (S). 239 the petition to be proved by affidavit. Ford v. Ford, 36 Law J. Rep. (n.s.) P. & M. 86. (3) By jury. 125.— In suits other than those for dissolution of marriage, the Court may in its discretion refuse to order the cause to be tried by a jury. The answer to a petition for restitution of con- jugal rights, alleged the impotence of the peti- tioner, and prayed for a decree of nullity of mar- riage. The Court refused to allow the issue joined on the answer to be tried by a jury, although the respondent asked for one. Bicketts v. Eicketts, 35 Law J. Rep. (n s.) P. & M. 92. (A) Proceedings at trial. (1) Confrontation. [See No. 118 supra.] 126. — The co-respondent, who pleaded a coun- ter-charge of adultery against the petitioner, and whose case depended on the petitioner's identifica- tion, applied that he might be ordered to attend at the trial. The petitioner asked that, as a con- dition of the order, the co-respondent might also be ordered to attend. The Court ordered that both petitioner and co-respondent should attend at the trial. Sykes v. Sykes and Smith, 38 Law J. Rep. (n.s.) p. & M. 12. (2) Hearing in camerA. [See No. 4 supra.] (3) Bight to reply. 127. — The petitioner, in a matriomonial suit, having obtained a decree nisi to dissolve his marriage, the Queen's Proctor and other parties intervened. The questions for the jury, raised by the latter, were collusion and connivance ; by the former, collusion, connivance and misconduct which conduced to the adultery of the respondent : — Held, that although the counsel for the Queen's Proctor and the other interveners might respec- tively produce and examine witnesses, and cross- examine the witnesses produced by the petitioner, only one counsel could be heard in reply. Bering V. Bering and BlaJceley, 37 Law J. Rep. (n.s.) P. & M. 52. (i) New trial. 128. — Where there was a reason to suppose that, on the trial of the husband's petition, evi- dence applicable to the respondent alone affected the minds of the jury against the co-respondent, the Court, in making absolute the rule for a new trial, ordered that the issues should be severed, so that the charges against the co-respondent might be tried separately from those against the respon- dent. Barnes v. Barnes and Beaumont, 38 Law J. Rep. (n.s.) p. & M. 9; Law Rep. 1 P. & D. 43. (k) Becrees and orders. (1) Form of. [See Nos. 52, 100, supra ; and Baeon and Feme, 3.] (2) Amending. [See (M) supra.] (3) Service of. 129. — In a suit by the husband for restitution of conjugal rights, a decree was made that the wife should return to cohabitation. The wife was abroad ; her address was kept secret by her friends, and personal service of the decree could not be effected. Substituted service on her attorney was in consequence allowed, and the decree remaining unobeyed, the Court, without requiring a previous writ of atbichmont to issue, granted a writ of sequestration against the wife's separate estate, for the purpose of enforcing obe- dience to its order. MUler v. Miller, 39 Law J. Rep. (N.s.) P. & M. 38 ; Law Rep. 2 P. & D. 644. (4) Making decree absolute. 130. — The husband obtained a decree nisi for dissolution of the marriage, and a fortnight after- wards re-married. The Court being satisfied that in contracting the second marriage he honestly believed that the first had been dissolved by the decree nisi, and that he had no intention of com- mitting adultery, exercised the discretion vested in it under the 31st sect, of the Divorce Act, and made the decree absolute. Hoble v. Noble and Godman, 38 Law J. Rep. (n.s.) P. & M. 52 ; Law Rep. 1 P. &D. 691. 131. — The Court refused, in the absence of special circumstances, to exercise the discretionary powers vested in it, and to fix a shorter period than that within which, according to the statute and rules of the Court, the decree nisi in a suit for dissolution of marriage is to be made absolute. Shelton v. Shdton and Campbell, 38 Law J. Rep. (n.s.) p. & M. 34. 132. — A petitioner obtained a decree for the dissolution of his marriage by reason of the mis- conduct of his wife, unless sufficient cause were shewn to the contrary within three months. After this decree had been made, the statute 29 & 30 Vict. c. 32 came into operation, which ordered that no decree for dissolution should be made absolute under six months, unless the Court shall, under the power vested in it by the previous statutes, fix a shorter time : — Held, that the statute 29 & 30 Vict. c. 32 applied to all suits in existence at the time it came into operation ; but that as the Court had in all decrees nisi granted before that time fixed a shorter period than six moiiths (namely, three months), at the termina- tion of which they should be made absolute, such decrees would come under the exception contained in sect. 3. Walton v. Watton and Oastler ; Bow v. Bow and Macann ; Bavies v. Bavirs andM'Carthy, 35 Law J. Rep. (n.s.) P. & M. 95 ; Law Rep. 1 P. <& D. 227. (5) Ground for refusing. 133. — The Court will not refuse a petitioner his decree because of the suppression of material facts, if upon the whole case he should appear entitled to relief. Alexandre v. Alexandre (The Queen's Proctor intervening), 39 Law J. Rep. (n.s.) p. & M. 84. {I) Bamages. (1) Applicatio,n of. 134, — At the hearing of this suit the jury 10 DIVORCE AND MATEIMONIAL CAUSES (S). und that tHe respondent and co-respondent had mmitted adultery, and assessed the damages, hidh they recommended should be entirely set- 3d on the children of the marriage. The Court dered that the petitioner's surplus costs, haTing len taxed, should be first paid out of this fund, id that the residue should be invested in the ime of a trustee, the income to be expended for e maintenance and education of the children itil they were of age, when the principal sum Duld be divided between them. BUlingay v. ittingay and Thomas, 35 Law J. Eep. (n.s.) P. & . 84 ; Law Eep. P. & D. 168. 135. — In a suit by a husband for dissolution of irriage, the Court refused to order any part of 6 damages assessed to be settled on the wife, but rected th/am to be applied, first, to the payment such part of the petitioner's costs as he could it recover from the co-respondent, and subject ereto, to be settled upon the issue of the mar- ige. Taylor x. Taylor and Walters, 39 Law J. sp. (n.s.) p. & M. 23. 136. — Where in a suit by husband for dissolu- >n of marriage a decree nisi was pronounced, [d damages assessed against the co-respondent, appeared that the respondent was living under e protection of the co-respondent, and there had en no child of the marriage, the Court ordered e damages to be paid to the petitioner, such der to form part of the decree nisi. Evans v. >ans and Bird, Law Eep. 1 P. & D. 36. (2) Speedy payment of. 137. — In a suit by the husband for dissolution marriage on the ground of the wife's adultery, images to the amount of 500/. were assessed ;ainst the co-respondent. The Court granted a icree nisi and condemned him in costs. On fidavits, shewing that the co-respondent was moving his efiFects, and evading service of a iremptory order for payment of the damages, e Court allowed a writ of fi. fa. to issue forth- ith, without requiring personal service of the der. Fritchard v. Fritchard and Bean, 39 Law Eep. (n.s.) p. & M. 46; Law Eep. 2 P. & D. 53. {m) Attachment. [See No. 18.] 138. — In a suit for dissolution of marriage, ter a decree nisi with costs against the co-re- londent, an attachment for non-payment of those sts was granted. The citation and subsequent 'oceedings, in which the co-respondent was erro- lously slyled William Abbott, were served upon illiam Braine Abbot, who took no objection to e irregularity until the attachment was granted, e then applied to have it set aside : — Held, that he had stood by during the progress of the suit id allowed judgment to go against him in a rong name, the attachment must stand. Church- V. ChurcM'l and Abbott, 37 Law J. Eep. (n.s.) & M. 41 ; Law Eep. 1 P. & D. 486. 139. — A decree having been made in a suit of ssolution of marriage, whereby the co-respondent IS condemned in damages and costs, and an order iued that the damages should be paid into the Eegxstry within three weeks from' the time such' ' order was served upon him, before the expiration of that period, and before the costs had been taxed, the co-respondent, on his own petition, was adjudi- cated a bankrupt, and subsequently he obtained an order of discharge : — Held, that as both the damages and costs were debts which might have been proved under the bankruptcy, and are covered by the order of discharge, this Court could not allow an attachment to issue against the co-re- spondent for their non-payment. Wood v. Wood and Stanger, 37 Law J. Eep. (n.s.) P. & M. 2S ; Law Eep. 1 P. & D. 467. (») Sequestration. 140. — A sequestration may issue, although no attachment has been granted. The pension of a retired naval officer may be sequestered. Bent v. Bent, 36 Law J. Eep. (n.s.) P. & M. 61 ; Law Eep. 1 P. & D. 125. (o) Appeal. (I) To the full Court. 141. — In a suit for dissolution of marriage, the final decree contained an order upon the respondent to secure to the petitioner a certain annuity as permanent maintenance : — Held, that the fall Court could not entertain an appeal against so much of such final decree as ordered a permanent maintenance to the petitioner ; that the appeal from a final decree, or any part of it, lies only to the House of Lords. Sidney v. Sidney, 35 Law J. Eep. (n.s.) p. & M. 46 ; Law Eep. 1 P. & D. 78 ; 36 Law J. Eep. (n.s.) P. & M. 73. 142. — The appellant lodged an instrument of appeal in the Eegistry within three months from the time the decree was pronounced, but allowed one term to elapse without bringing the matter before the full Court: — Held, that he was still en- titled to be heard. Ginger v. Ginger, 35 Law J. Eep. (n.s.) p. & M. 93. (2) To the House of Lords. 143. — Semble — Where a decree from the Court for Divorce and Matrimonial Causes, dismissing a petition for a declaration of nullity of marriag;6, is reversed by the House of Lords, the House should not only reverse the decree appealed from, but decree that the marriage was null and void ab initio. Lewis, falsely called Hayward, v. Hay- ward, 35 Law J. Rep. (n.s.) P. & M. 105. 144. — Appeal lies to the House of Lords only from a decree for dissolution, properly so called, not from a part of such decree not relating to the dissolution Sidney v. Sidney, 35 Law J. Eep. (n.s.) p. & M. n-6 ; 36 Law J. Eep. (n.s.) P. & M. 73 ; Law Eep. 1 P. & D. 78. 145. — In a suit for dissolution of marriage by reason of adultery of the respondent and co- respondent, they answered that the marriage in question was illegal, by reason that the petitioner had, before he married the respondent, lived and cohabited with her sister. On demurrer, it was held, by the Judge Ordinary, that the circumstance alleged did not render the marriage invalid. The DIVORCE AND MATEIMONIAL CAUSES (T) 241 co-respondent thereupon at once appealed to the House of Lords from this decision : — Held, tliat as the decision on the demurrer was only on an inter- locutory matter, which might have been disposed of under the original Divorce Act by the Judge Ordinary sitting alone, an appeal does not lie to the House of Lords ; that the Court for Divorce will not suspend its proceedings during the pending of an appeal so improperly made, but will proceed to dispose of the petition on its merits. Pagani V. Pagani and Vining, 3S Law J. Rep. (n.s.) P. & M. 87 ; Law Rep. 1 P. & D. 223. (T) Costs. (a) Of the mfe. (1) Under the 159/h rule. 146. — In a suit in which material circumstances were proved on the part of the wife respondent, although the verdict established her adultery, the Court, after the lapse of three months from the ■date of the decree nisi, and notwithstanding the Rule 159, allowed her costs to be taxed against the husband. Smnerville v. Somerville and Webb, 36 Law J. Rep. (n.s.) P. & M. 87. 147. — The 159th rule, Rules and Regulations, Divorce Court, 1866, which directs that no costs of the wife incidental to the hearing or trial shall be allowed as against the husband, except such as shall be applied for and ordered to be allowed by the Judge Ordinary at the time of such hearing or trial, is not absolutely imperative upon the Court ; but no application will be admitted subsequently, unless under very special and meritorious circum- stances. Conradi v. Conradi and Flashman, 35 Law J. Rep. (n.s.) P. & M. 49 ; Law Rep. 1 P. & D. 163. (2) Petitioning in two suits. 148. — A suit for a decree of nullity promoted by the wife on the ground of impotency was dis- missed. Subsequently she filed a petition for dis- solution of marriage on the ground of adultery,, coupled with cruelty and desertion, and obtained a decree nisi : — Held, that the respondent ought not to be condemned in the costs of both suits ; and in allowing the petitioner the full costs of the suit in which she was successful, it was ordered that the respondent should have credit for the sum^ paid by him on account of her costs in the suit for nullity. Bitehfidd v. Ditchfield, 38 Law J. Rep. (n.s.)JP. & M. 61 ; Law Rep. 1 P. & D. 729. (3) Of vnsuceesaful suit. 149. — A wife who is unsuccessful in a suit by her for a judicial separation is not entitled to her costs of the hearing, although the security for such costs has been given, if she is possessed of suffi- cient property to defray her own costs. Heal v. Heal, 36 Law J. Rep. (n.s.) P. & M. 62 ; Law Rep. 1 P. & D. 300. (4) In suit for dissolution electing to take decree for separation. 150. — At the hearing of the wife's petition for a dissolution of marriage, it was proved that the Digest, 1865-70 husband had committed adultery, that such adul- tery had been condoned, but that the right of the wife to complain was revived by subsequent cruelty. After the verdict was given, the wife elected to take a decree for judicial separation only, which was made, with costs generally against the hus- band. The wife was the only witness produced to prove the charge of cruelty. The Court refused to order the registrar to review his taxation of costs, by disallowing all the charges therein as to the proof of adultery ; but ordered that any costs con- sequent upon the wife's evidence, which would not have been admitted if she had prayed in the first instance for a judicial separation, should be struck, out. Dent v. Bent, 35 Law J. Rep. (n.s.) P. & M, 61; Law Rep. 1 P. & D. 1^5. (5) Non-payment of, by husband. 151. — If in a matrimonial suit the wife be unable to go to trial in consequence of the non- payment of her costs by the husband, she should either apply at chambers to have the case stand over, or appear in Court on the day of hearing and state her inability to proceed. Curtis v. Curtis, 38 Law J. Rep. (n.s.).P. & M. 9. (d) Objection to bill of costs. 152. — Though the respondent in a suit for dis- solution of marriage by the wife has not entered an appearance to the petition, he may, after decree nisi, attend before the registrar to object to the wife's bill of costs. Letts v. Letts, Law Rep. 2 P. & D. 16. (i) Against wife. 153. — The husband filed a petition for restitu- tion of conjugal rights. The wife, in her answer, charged him with cruelty of a gross and indecent kind, but at the hearing her counsel admitted that she had no case. The wife had a separate income of 760Z. per annum. She had induced her hus- band to give up his practice as a surgeon in the country, and had put him to expense by the un- founded charges in her answer : — The Court, under these circumstances, condemned her in the costs of the suit. Miller v. Miller, 39 Law J. Rep. (n.s.) P. & M. 4 ; Law Rep. 2 P. & D. 13. (c) Against co-respondent. 154. — The wife, the respondent in the suit, recriminated adultery, which she charged as hav- ing taken place with A and B. At the trial no evidence was offered in support of the charge with B. The Court ordered that the costs incurred by the petitioner in respect of the charge of adultery with B should be deducted from the sum paid into Court to meet the respondent's costs of trial. Mor-^ gan v. Morgan and Porter, 38 Law J. Rep. (n.s.) P. & M. 41 ; Law Rep. 1 P. & D. 644. 155.— A co-respondent will not be made to pay the costs of a first trial where the jury were unable to agree to a verdict, although on a second trial a verdict was found for the petitioner, and the mar- riage dissolved- and the co-respondont condemned in damages and costs. Wood v. Wood and Stranger, II 242 DIVOECE AlilD MATRIMONIAL CAUSES (T). 37 Law J. Rep. (n.s.) P. & M. 26 ; Law Eep. 1 P. & D. 467. 156. — A eo-respondent not condemned in costs, although at the time of the adultery he knew the respondent was a married woman — on the ground that previous to the adultery she had been living separate from her husband for seven years, and had been leading an abandoned life for one. Nel- son V. Nelson and Howson, Law Rep. 1 P. & D. 510. 157. — At the hearing, the adultery of the respondent with the co-respondent was proved, but as the adultery of the petitioner was also proved, the petition was dismissed, and an order made condemning the co-respondent in the costs incurred by the petitioner in proving his adultery with .the respondent : — Held, that this order comprised all the expenses incidental to the filing and prosecu- tion of the petition so far as they related to the adultery of the co-respondent. Baker v. Baker and Grigg, 36 Law J. Eep. (n.s.) P. & D. 119. {d) To co-respondent. 158. — A co-reepondent who obtained a verdict on a second trial was not allowed the costs of a former trial, in which the jury, being unable to agree, were discharged, where the first trial proved abortive through his failing then to produce the evidence upon which the verdict was obtained. Wight V. Wight and Field, 36 Law J. Eep. (n.s.) P. & M. 129 ; Law Eep. 1 P. & D. 368. 159. — The question of costs is in the discretion of the Court, and depends on the particular cir- cumstances of each case. Whitmore v. Whitmore ami Brettell, 35 Law J. Eep. (n.s.) P. & M. 32 ; Law Eep. 1 P. &D. 25. In a suit by a husband for dissolution of mar- riage, the case against the co-respondent rested on. the evidence of two witnesses, and the jury being unable to agree, they were discharged without a verdict. The petition was subsequently dismissed. The Court being of opinion that the jury might reasonably have a difficulty in believing those witnesses, condemned the petitioner in the co-re- spondent's costs. Ibid. 160. — The husband petitioned for a dissolution of his marriage on the ground'of the adultery of his wife witli the co-respondent, which, on the hearing, was proved ; but, in addition, the co-re- spondent also proved that the petitioner had him- self been guilty of incestuous adultery; the petition was dismissed: — Held, that although the co-re- spondent was liable for the costs of proving the wife's adultery, he was entitled to be paid the costs of the issue against the husband on which he had succeeded. Conradi v. Conradi and Mashman, 36 Law J. Eep. (n.s.) P. & M. 49 ; Law Eep. 1 P. & D. 163. (e) Against petitioner. 161. — In a suit for dissolution of marriage, trial before the Judge Ordinnry and a comircn jury, the latter fuv.nd that the rcfpondent and co- re.^pondcnt bid rommittcd adultery together, that the petitioner hr.d condoned such adultery, and, further, that the petitioner had connived at hiff wife's adultery with another person ; and they assessed damages at one farthing. The CSurt dis- missed the petition, and ordered the petitioner to pay the costs of the respondent and of the co-re- spondent. Adams v. Adams and Colter, 36 Law J. Eep. (n.s.) p. & M. 62 ; Law Rep. 1 P. & D. 333. (/) Of Queen's Proctor interveniitg. 162. — Observations on the right of the Queen's Proctor to intervene more than once, and of his not being allowed to do so vexatiously. Conradi V. Conradi, Warrell and Way, 37 Law J. Eep. (n.s.) p. & M. 65 ; Law Rep. 1 P. & D. 514. 163. — At the petition of the wife, the Court made a decree nisi to dissolve her marriage by reason of her husband's adultery and cruelty, and- therein condemned the respondent in the costs in- curred and to be incurred on behalf of the peti- tioner, and directed the same to be taxed by one of the registrars of the Court of Probate. Subse- quently the Queen's Proctor intervened and proved that the petitioner had herself been guilty of adultery. The Court ordered so much of the decree nisi to be reversed as dissolved the marriage of the parties,- and dismissed the petition, but, varying an order previously made (No. 85 supra), reserved to the petitioner her right to enforce against the respondent the order as to costs con- tained in the decree nisi. Whitmore v. Whitmore, 35 Law J. Rep. (n.s.) P. & M. 62. 164. — Where the Queen's Proctor intervened and charged collusion, that material facts had not been brought before the Court, and that the peti- tioner had been guilty of adultery, and at the hearing established the first two charges and abandoned the last, the Court refused to condemn the petitioner in costs, on the ground that he had been put to great expense in preparing to defend the charge of adultery. Barnes v. Barnes and Wade, 37 Law J. Rep. (n.s.) P. & M. 4 ; Law Eep. IP. &D.505. ' i- {9) Qf other party intervening. 165. — The Court has no power to condemn in costs a person who enters an appearance and files affidavits in opposition to a decree nisi being made absolute, and afterwards abandons his opposition. Vivian v. Vivian and Waterford, Leslie interven- ing. 39 Law J. Eep. (n.s.) P. & M. 64 ; Law Eep. 2 P. & D. 100. (h) Of appeal io the House of Lords. 166.— On appeal to the House of Lords a sen- tence of this Court, dismissing a wife's petition for a decree of nullity of marriage, was reversed, and the House declared the marriage null, and re- mitted the cause to this Court, but made no order as to the costs of the proceedings in the Court below : — Held, that this Court had no power to give the appellant costs. L—, falsely called H—, V. H— 36 Law J. Eep. (n.s.) P. & M. 76: Law Eep. 1 P. & D. 293. A decree of the House of T.or 'r,, when verified by sffidavit, mny bo recorded i;i the Eegistry. DOCKS AND HARBOURS— DOMICIL. 243- (J) Bides as to. Delay. [See No. 6 supra.] (Jc) Proctor's lien. . 167. — An attorney, who lias acted on the part of a wife in a matrinional suit, and has a claim for costs therein inearred bejoud those which have been taxed ' against the husband, has a lien upon the alimony paid into his hands on her behalf for such extra costs. Bremner t. Bremner and Brett, 36 Law J. Rep. (n.s.) P. & M. 11 ; Law Rep. 1 P. & D. 254. DOCKS AND HARBOURS. [See Negugence, 16 ; 27 ; Bate, 20 ; Shipping (K) 5 ; Statute, Constbtjction, 2.] DOMICIL. (A) When acqtheed by eesidence. (B) -Change of. (C) Judgment of Cottbt of. (A) When AcauiKED by besidence. 1. — A, a Scotchman, having his domicil in Scotland, and being a landed proprietor and ban- ker there, married an Englishwoman, with whom he resided for some years in Scotland. He then, on account of his health, left Scotland, and for ten years resided at different places in England. Afterwards he returned to Scotland, and remained there for a few months, for the purposes of busi- ness, but was again forced to leave by ill health and return to England, where, for nearly two years, he was in confinement in an asylum, and for the next five years he was travelling about on the Continent, and in England ; meanwhile, almost all his Scotch property was sold to pay his debts. At the end of that time, the wife's trustees bought a house, at Brighton, and A and his wife lived there till his death, ten years after : — Held, follow- ing Forbes v. Forbes, Kay, 341 ; 23 Law J. Rep. (n.s.) Chanc. 734, that A had acquired an English domicil. AitcMson v. Bixon, 39 Law J. Rep. (n.s.) Chanc. 706 ; Law Rep. 10 Eq. 589. 2. — ^To acquire a new domicil in place of domi- cil of origin it is not necessary exuere patriam, but a change of domicil occurs whenever there is a change of residence of a permanent character voluntarily assumed, and a residence originally intended to be temporary will become permanent in character as soon as an animus manendi can be inferred. Haldane v. Eckford (3), Law Rep. 8 Eq. 631. (C) Change of. 3. — Residence in a foreign country as a public officer gives rise to no inference of a domicil in that country ; but if already there domiciled and resident, the acceptance of an office in the public service of another country does nothing to destroy the domicil, Sharpe and Sharpe v. Crispin, 38 Law J. Rep. (n.s.) P. & M. 17 ; Law Rep. I P. &D. 611. The domicil of a child during its minority fol- lows that of the father ; and if from lunacy or nieutaL imbecility it is incapable, after it has at- tained the age of majority, to choose a domicil for itself, in such case its domicil will still continue to be determined by that of the father. Ibid. An intention to abandon the domicil of origin and to acquire another must be indicated by some words or act of a marked character from which a definite resolve may safely be collected; butthemode • in which a man may evidence such an intention must vary indefinitely with the age, the character, the circumstances and the general conduct of the individual. Wheie, accordingly, a minor of the age of nineteen or twenty, who was of weak intel- lect and incapable of being employed in any business or occupation, was taken back to Oporto on- the close of his education in England by his father, an Englishman domiciled in Portugal, bub returned to England shortly after he attained his majority, the Court held, that his intention to abandon his domicil of origin and to acquire an English one was sufficiently shewn by the re- luctance with which he accompanied his father- back to Portugal, by expressions of dislike to resi- dance in Portugal, and by his prompt return to England when circumstances allowed it. Ibid. 4. — A man's political status is fixed by his patria, the country of which at his birth he became sub- ject, and to which he must for ever owe a natural allegiance. His civil status is determined by his domicil, which he may change as often as he pleases. The moment a man relinquishes the domicil of his choice the domicil of his origin re- vives. The legitimacy of a child born to a man at such a moment is determined by the law of the country of the domicil of his origin. Udny v. TJdny, Law Rep. 1 Se. App. 441. 5. — Circumstances under which a change of domicil of birth was negatived although the person in question, who is still living, had virtually aban- doned his domicil of birth (Jamaica), and resided in Scotland for more than a year, sometimes ex- pressing an intention of purchasing an estate there, and at other times that he would go abroad again. The question arose' on a claim by a child, on the Scotch law of communio bonorum inter conjuges, alleging that her mother at her death was domi- ciled in Scotiand. Bell v. Kennedy, Law Rep. 1 Sc. App. 307. (C) JtnjGMENT OP COUET OF. 6. — A suit was instituted in the Court of Pro- bate respecting the succession to the personal estate of a deceased, who was domiciled abroad at the time of his death : — Held, affirming the judg- ment of the Court of Probate, 32 Law; J. Rep. (n.s.) p. M. & A. 169, that a judgment of the Court of the domicil is binding and conclusive as to any question raised in the Courts of the na- tionality between the same parties and in relation to the same succession. Doglioni v. Crispin, 35 Law J. Kep. (n.s.) P. & M. 129; Law Rep. 1 E. &I Aj.p. 301. II 2 m DONATIO MORTIS CAUSA— EASEMENT (A), (B). The Court of Probate has no jurisdiction to inquire whether such a judgment is in conformity with the law of the country where it was pro- nounced. Ibid. [And see Injunction, 39 ; Legitimacy Declara- tion Act ; Conflict of Laws.] DONATIO MORTIS CAUSA. A lady, during the night in which she died, signed and handed to a trustee of a charity, esta- blished by herself, a cheque for 600^., for the use of the charity. The lady died before the morning, BO that the cheque could not possibly be cashed before her death. Held, that there was no donatio mortis causa, and that the 600^. belonged not to the charity, but to the residuary personal estate of the deceased. Hewitt V. Kaye, 37 Law J. Rep. (n.s.) Chanc. 633 ; Law Rep. 6 Eq. 198. DOWER. Devise of residuary real estate to trustees upon certain trusts being partly for benefit of widow : — Held, that under sect. 9 of the Dower Act, 3 & 4 Will. 4. e. 105, the widow was deprived of her dower. Whether so by eection 4, qusere. Bowland V. Cuthbertson, Law Rep. 8 Eq. 466. [See also Lands Clauses Act, 47.] EASEMENT. (A) What Easements pass bt implication. (a) Grant. (b) Devise. (B) Acquisition of Easements by pebscbip- TION. (C) Partioulae Easements. (a) Light and air. (6) Waj/. (c) Water. (d) Bight to plough up footpath. (e) Bight to support. (D) EXTINGUISHMKNT OF EASEMENTS. (E) Obstruction of Easements, suino in RESPECT OF. (1) At Law. (2) In Equity. (A) What Easements pass by implication. (a) Grant. 1. — General words in a conveyance passing ail ways with the land conveyed, occupied or enjoyed, will not convey to the vendee a way which ori- ginated in the user by the vendor of his own land for his own convenience, and which had no exist- ence prior to the unity of possession of the vendor. The ease would be different had the way existed prior to the unity of possessiom of the vendor, and been thereby extingui[h3d or suspended. Thompson V. Waterlow, 37 Law J. Rep. (n.s.) Ghana. 495 ; Law Rep. 6 Eq. 36. 2. — If on the purchase of land there are cir- cumstances shewing a clear intention in the per- sons interested that there should be a right of way over it, the purchaser, having suffered this inten- tion to be acted on, cannot afterwards dispute the right, although it was not reserved in the con- veyance to him. The defendant bought the lease of a house with a road leading through it under an archway. The adjoining land was laid out for building so as entirely to surround a central plot (intended to be used as mews) with houses, leaving the road under the archway the only means of access ; but the building was then so little advanced that the plot could still be approached in other ways. The lease contained covenants by the lessee to complete the house according to a specified plan, which com- prised the adjoining land and buildings ; but the defendant declared that he had never seen the plan. , No right of way was reserved in the lease or in the assignment to the defendant, but both contained maps in which the site of the arch was described as a gateway. The defendant did nothing for seven or eight months, and then blocked up the archway: — Held, that he could not dispute the right of vray, and injunction granted accordingly. Davies v. Sear, 38 Law J. Rep. (n.s.) Chane. 546 ; Law Rep. 7 Eq. 427. (b) Devise. 3. — A devise by the owner of two adjoining houses of one of them, in the words " the house, outhouse, and garden, as now in the occupation of T A," does not pass to the devisee a right to go to a pump in the yard of the adjoining house for the purpose of getting water, though T A, the occupier of the devised house, had been in the habit, both before and at the time of the making of the will, of going to the above-mentioned pump, to the knowledge of the testatrix. Folden v. Bastarct, 35 Law J. Rep. (n.s.) U. B. 92 ; 7 Best &S. 130; LawRep. ia.J. 156. (B) AcatrisiTioN of Easements by prescrip- tion. 4. — The right to light may be acquired by actual enjoyment thereof under the Prescription Act, 2 & 3 Will. 4. c. 71, s. 3, where the house has been structurally completed, the floors laid and the windows put in for a period of more than twenty years, although the internal fittings had not been completed, nor the house put in a state fit for habitation, nor in fact inhabited until a period of twenty years. Courtauld v. Legh, 38 Law J. Rep. (n.s.) Ex. 45 ; Law Rep. 4 Ex. 126. 6. — The lessee of a house and garden, forming part of a large area of building ground, will not be entitled, under his ordinary covenant for quiet enjoyment, or otherwise in the absence of special contract, to restrain the lessor or persons claim- ing under him from building on the adjoining land so as to obstruct the free access of light and air to the garden. Botts v. Smith, 38 Law J. Rep. (n.s.) Chanc. 68 ; Law Rep. 6 Eq. 311. It is a rule of law that there can be no prescrip- EASEMENT (C), (E)— EJECTMENT (A). 245 tion for an easement of light and air over open land. Ibid. 6. — A tenant who has a way of necessity over another close of his landlord, cannot acquire or prescribe against his landlord a right to any fur- ther easement, as the lessee's possession is that of the lessor. Gayford v. Moffatt, Law Rep. i Chanc. 133. Ancient mines : user by tin-founders, [See Watercoubse, 2.] Canal: userof water. [See'WATEBCotrBSE,4.] Ta create nuisance. [See Ntiisance, 8.] (C) Particulak Easements. (a) lAght and air. 7. — An Act of Parliament alone can give any person the right of taking the property of another without his consent on payment of an adequate pecuniary compensation, and the right to light and air is as much property as the land which enjoys this easement on the land of another. Dunball v. Walters, 35 Beav. 565. [And see Injtinctiox, 6, 15. Metropolitan Building Act, 2.] (i) Way. [See that title.] (c) Water. 8. — The owner of a paper mill having acquired an easement for the discharge into a stream, of polluted water from the manufacture of paper from rags, has a right to discharge into the stream an equal amount of pollution by the manufacture of paper from another material (esparto) ; and a plaintiff, to obtain an injunction, must prove a greater amount of pollution atld injury arising from the use of the new material. Saxendale v. McMv/rray, Law Eep. 2 Chanc. 790. [And see Navigation, 1 ; Nuisance, 3 ; Watbe- COUBSB, 1.] 'Reservation in lease of free running of water. [See Lease, 1 .] (d) Bight to plough up footpath. [See High WAT, 6.] («) Bight to support. [See Action, 7, 8.] (D) Extinguishment or Easements. 9. — The blocking up of a back-door from pre- mises into a public way for upwards of thirty years ; Held, not to have been an abandonment, the door having been re-opened before the obstruc- tion to the way was commenced. And heljl, that the owner was entitled to file a bill for an injunction, without making the Attorney General a party. Cook v. Mayor, ^c, of Bath, Law Eep. 6 Eq. 177. 10. — The mere non-user of an easement is not in itself an. abandonment that in any way con- eludes the claimant, it is only an item of evidence. The length of time for which the user has ceased is not of so much consequence in establishing an abandonment as acts clearly indicative of the intention to abandon. Where, by the non-user of a right for a long period a person was induced to expend money on the assumption of that right not being used, the Court issued an injunction to restrain the resumption of the easement. Judg- ment of Wood, V.C, Law Rep. 3 Eq. 279, affirmed. Crossley ^ Sons v. Lightowler, 36 Law J. Rep, (n.s.) Chanc. 584; Law Eep. 2 Chanc. 478. (E) Obstruction of Easements : suing in respect of. (1) At Law. [See Action.] (2) In Equity. [See Injunction.] EASTER OFFERINGS. [See Church and Clebgt, 19.] ECCLESIASTICAL LAW. [See Church and Clebgt, Burial Rate.] EDUCATION. [See School.] EJECTMENT. (A) When maintainable. (B) PfiACTICB. (a) Jurisdiction of County CouH. (6) Interrogatories. (c) Costs. (A) When maintainable. 1. — The mere possession of laud for less than twenty years confers upon the possessor a prim4 facie heritable and devisable interest in fee therein good against all the world, but the true owner of the soil, and the devisee in fee of such possessor, may maintain ejectment against any person whose title is founded merely on subsequent adverse possession for less than twenty years. Semble — ^Where a widow takes under a devise durante viduitate, with remainder to another in fee, and marries, her husband, who enters after marriage into possession of the same land and continues to occupy it with her, is estopped from denying the title of the devisor to the land. Asher and Wife v Whitelock, 35 Law J. Rep. (n.s.) Q. B. 17 ; Law Rep. 1 Q. B. 1. Breach of covenant : burden of proof. [See Covenant, 24.] 246 EJECTMENT (B)— ELECTION. Covenant not to assign. [See Covenant, 23 ; Mortgage, 32.] Mesne profits. [See Evidence, 11.] Mortgagor in possession. [See Limitationa, Statute op, 3.] Proof of will. [See Evidence, 16.] [See also Landloed and Tenant, 3, 6.] (B) Pbacticb. (a) Jurisdiction of County Court. 2.— By the County Coui'ts Act, 30 & 31 Vict. c. 142, s. 11, all actions of ejectment, where neither the value of the lands, tenetaents or hereditaments, nor the rent payable in respect thereof, shall ex- ceed the sum of Wl. in the year, may be brought and prosecuted in the County Court of the district in which the lands, &c., are situate : — Held, that by the words "rent payable in respect thereof," is meant the rent due to the person bringing the ejectment, although his lessee may have sub-let the premises at a rent greater than the amount to which the jurisdiction of the County Court is limited. At the trial of an ejectment brought under this section, the County Court Judge, after hearing contradictory evidence as to the annual value of the premises^ decided that it did not exceed 201., and gave judgment for the defendant : — Held (dubitante Hannen, J.), that the Court of Queen's Bench would not grant a prohibition to restrain the County Court from proceeding with the cause, upon affidavits suggesting that the decision of the Judge was against the weight of evidence. Brown V. Cocking and Barry, 37 Law J. Eep. (n.s.) Q. B. 250 ; 9 Best & S. 603 ; Law Eep. 3 Q. B. 672. (b) Interrogatories. [See Pbaotice at Law, 17.] (c) Costs. 3. — One o:^ several defendants in ejectment, although he has limited his defence according to section 174 of the Common Law 'Procedure Act, 1852, to part only of the property claimed, is liable for the plaintiff's general costs in the cause, including such as are applicable to the other per- sons being made co-defendants, if the plaintiff succeeds at the trial, and such ■ defendant has not ' confessed the plaintiff's title to the part for which he defends ; and the Court refused to interfere on behalf of such defendant under section 221, by which its general jurisdiction over the proceedings in the action of ejectment is reserved. [In Mobbs V. Vanderbrande, 33 Law J. Eep. (n.s.) Q. B. 177, the Court of Queen's Bench exercised its general jurisdiction over the action of ejectment reserved by section 221 of the Common Law Procedure Act, 1852, by ordering the person at whose in- stance and for whose benefit the action was brought, though not a claimant named in the writ, to pay the costs to a successful defendant.] Johnson and others v. Mills and others. In re G. T. Foot, 37 Law J. Eep. (n.s.) C. P. 57 ; Law Eep. 3 C. P. 22. 4. — The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 93, enacts. If any person shall bring an action of ejectment after a prior action for the same premises, " unsuccessfully brought " by him, the Court or a Judge may, if they or he shall think fit, on the application of the defendant at any time after appearance, order that the plaintiff shall give to the defendant secu- rity for costs, with stay of proceedings, whether the prior action has been " disposed of by discon- tinuance, or by nonsuit, or by judgment for the defendant :" — Held, (1) That this section applies to all cases where the first action has been " unsuccessfully brought," and it is not restricted to those mentioned at the end of it. (2) Where an order for security for costs has been made on a ground which no longer exists, the Court will not release the plaintiff from it if the facts are such as bring the ease within the opera- tion of the section. 2. In 1857, the plaintiff as heir brought an action of ejectment against the defendant for cer- tain premises. In 1858 it was agreed that the action should be discontinued, and a biU in Chancery brought instead. No formal discontinu- ance was entered; but the suit in Chancery was instituted. This was discontinued and a fresh suit commenced, the proceedings in which were stayed until security for costs should be given. In 1863, the plaintiff brought another action of ejectment for the same premises ; in 1864, in con- sequence of the plaintiff residing out of the juris- diction of the Court, the defendant obtained a Judge's order for security of costs with a stay of proceedings. In 1866, the plaintiff applied to set aside this order, upon an affidavit that he had re- turned to England, and was engaged as »• private tutor in a family, and had determined not to go again out of the jurisdiction of the Court until the cause was tried and disposed of. ( 1 ) Quaere— Whether the affidavit was sufficient. (2) Held, that if an application had been made for an order under statute 17 & 18 Vict. c. 125, s. 93, on the ground that the prior action was unsuc- cessfully brought, the Court would have made it; and therefore (3) On this application the Court, in exercise of its discretion, refused to set aside the order. Skene V. Bailies, 7 Best & S. 463. ELECTION. [See Power, 25 ; Baron and Feme, 29 ; Will,, Construction (B) 1.] (A) Where it arises. (B) Where it does not arise. (C) Election to proceed at Law, or in Equitt. (D) What amounts to, (1) Election to Parliament. [See Parlia- ment.] (2) Election in Equity. ELECTION (A}, (C). 24-ir (A) Whebe it arises. 1. — A sum of 3,000^. was settled by a lady on her marriage upon trust after her own decease, as to the income, for her husband for his life, and after the decease of both, as to the capital, for certain nephews and nieces subject to a power en- abling her by deed or will to revoke the trusts in favour of the nephews and-nieces. By will made after marriage, reciting that the fund had been settled by the said deed, subject to a power of revocation of the trusts thereof, she revoked those trusts, and gave "after her decease" 1,000^. to, her husband and the residue to the plaintiff: — Held, that the will was made under an erroneous impression, and was intended to revoke all the trusts of the deed, and that the husband was put to his election between the life interest and the J, 000/. Coutts V. Ackworth, 39 Law J. Kep. (n.s.) Cliane. 649 ; Law Eep. 9 Eq. 519. 2. — Testator gave to his wife personal estate, and an annuity charged on specified realty in lieu of dower, and gave her also some personalty to which she was entitled in her own right. She survived testator, and during her life received the benefits given to her by the will, but never elected to take under or against the will, and died intes- tate, leaving four next-of-kin, three of whom elected to take under the will ; but the fourth who was her heir-at-law and administrator, elected to take against it : — Held, that each of the next-of- kin had a separate right of election, by the exer- cise of which the others were not bound, and that in taking the accounts, the fourth, taking against the will, must bring into account every benefit given by the will, including the annuity, credit being given for one-fourth of the dower. Fytche v. Fytche, Law Eep. 7 Eq. 494. 3.: — By ante-nuptial articles for a settlement real and personal property of the lady, who was an infant, was agreed to be settled upon the wife for life, remainder to the husband for life, remainder to the children of the marriage ; the wife died after attaining twenty-one, but without having executed any settlement or confirmed the articles, leaving one child, her heiiess-at-law : — Held, the heiress-at-law was bound to elect whether she would take under or against the settlement as she was directly interested ^in the personal estate ■under it. But, semble, had she acquired an in- terest in the personalty indirectly it would not have been a case for election. Brown v. Brovm, Law Eep. 2 Eq. 481. (B) Where it does not arise. 4. — A testator reciting in his will that his daughters A and B would become entitled to cer- tain property under his marriage settlement, and assigning that as a reason for not devising to them so large a share of his property as he would other- wise have done, devised certain fee simple property to them, but considerably more property to his daughters C and D, but did not affect to deal with the settled property. The fact was that the four daughters were equally entitled under the settle- ment: — Hold, that a case of election did not arise. Box f. Barrett, Law Eep. 3 Eq. 244. 5. — Where a person having a power of appoint- ment to children over a fund, and by his will he appoints the fund in shares to the children for life, remainder to their children, or other persons not objects of the power ; and bequeaths property, to those children : — Held, that no question of election arises. Moriarty v. Martin, 3 Ir. Chanc. Eep. 76, disapproved, of. Churchill v. ChurcUU, 37 Law J. Eep. (n.s.) Chanc. 92 ; Law Eep. 5 Eq 44. 6. — Election held not to arise under a vidll where the bequest was to S in his own right, and his counter claim was in a right of his wife. Grissel v. Swinhoe, Law Eep. 7 Eq. 291. 7. — The donee of a power of appointment over certain property, validly exei,;ised it by deed in favour of her three sons, and subsequently by will invalidly appointed the same property to her eldest son, giving her younger sons other benefits under the will : — Held, that the younger sons were not bound to elect between' their shares under the deed and the benefits given them by the will. Whittler v. Webster, 2 Ves. 367, observed upon. Cooper V. Coofer, 39 Law J. Eep. (n.s.) Chanc. 525. — This case has since been reversed, on appeal. 8. — Three several funds were settled upon a lady for life. On her death, fund 1 was to be held for such persons as she should by will ap- point. Funds 2 and 3 were to be held in case she died in her husband's lifetime for such persons as she should by will appoint ; but in case she sur- vived him the last-menti6ned funds were to become her absolute property. She, by will, made in her husband's lifetime, appointed the three fimds to her executors, and directed the latter to pay there- out several legacies to persons some of whom were and others were not her next-of-kin. She survived her husband and died without having republished her will, in consequence whereof funds 2 and 3 were undisposed of. Fund 1 was insuffi- cient to pay all the legacies in full : — Held, that those of the legatees who were also next-of-kin were not put to their election, but were entitled to proportionate parts of their several legacies, as well as to their shares of funds 2 and 3 as next- of-kin. BlaihlocTc v. Grindle, 38 Law J. Eep. (n.s.) Chanc. 247 ; Law Eep. 7 Eq. 215. Held, also, that testatrix's debts and funeral and testamentary expenses and the costs should be paid out of the undisposed-of funds. Ibid. (C) EtECTioN to proceed at Law or in Eoijitt. 9. — The plaintiffs filed a bill for delivery up of bills of exchange, and to restrain the defendants suing on them on account of breach of contract, and asked for damages. On amendment, the prayer for damages was struck out, and they commenced an action at law for damages : — Held, that, notwithstanding Lord Cairns' Act, the defen- dants could riot put the plaintiffs to their election as to whether they would proceed at law or in equity, inasmuch as the objects of the two pro- ceedings were different. The Avglo-Danu/dan Steam Navigation and Colliery Company, Limitid, V. Bogerson, 36 Law J. Eep. (n.s.) Chanc. 667 ; Law Eep. 4 Eq. 3. 243 EMBEZZLEMENT-ESCHEAT. (D) What amountb to. (1) Election to Parliament. [See Pabliament.] (2) Election in Equity. 10. — Although before an heir-at-law can be put to his election, he is entitled to know everything which concerned the value of the properties in question, yet, where he has entered into possession of the estates devised to him, and has deliberately confirmed a devise which without his confirmation would be invalid ; there is no authority for hold- ing that persons claiming under him are not bound unless it be proved that he had a knowledge of his rights. Heir-at-law held to have elected to take estates under a devise to him for life, remainder to him and other sons in strict settlement, although the will was inoperative as to this property (in St. Kitts). Dtwar v. Maitland, Law Eep. 2 Eq". 834. EMBEZZLEMENT. (A) Indictment. (a) Evidence to support. (6) Who may prosecute. (B) Cleek or Servant. (a) Commission agent. (i) Treasurer of friendly society, (c) Assistant overseer. [The Act 18 & 19 Vic. c. 126 to extend and apply to embezzlement by clerks or servants, and to be read as if the offence of embezzlement had been included therein. 31 & 32 Vict. c. 116.] [The statute 28 & 29 Vict. c. 112 amended and tepealed sections revived. 30 & 31 Vict. c. 119, 20.] (A) Indictment. (J) Evidence to support. 1. — An indictment for embezzlement alleged the property embezzled to be money. The proof was that the prisoner had received a cheque, but no evidence was given that the cheque had ever been presented or cashed, nor did it appear that the maker had an account or balance at the bank on which it was drawn, but it was proved that he had received no notice of its dishonour: — Held, Pigott, B. haesitante, that in the absence of any proof that the cheque had been converted into money, the allegation in the indictment was not sustained, and a conviction upon such indictment must be quashed. The Queen v. Keena, 37 Law J. Eep. (n.s.) M. C. 43 ; Law Eep. 1 C. C. E. 113. Married woman aiding and abetting. [See Baeon and Feme.] (i) Who may prosecute. 2. — A society in the nature of a friendly society, but having rules — not enrolled or certified under the Friendly Societies Acts — certain of which rules are in restraint of trade, and -therefore' void,' is not an illegal society in the sense that it is disabled from pro3ecuJ;ing a servant for embezzlement. The Queen y. Stainer, 39 Law J. Eep. (n.s.) M. C. 64 ; Law Eep. 1 C. C. E. 230. (B) Cleek oe Seevant. (a) Commission agent. 3. — The prisoner, with th^ permission of his employers, traded in the retail coal trade on his own account, and was employed, under an agree- ment in writing, by them as their agent for the sale of coals on commission. He was to collect moneys in connexion with his orders, but not to be held responsible for bad debts ; the commission was not to be due till the money had been received by his employers; he was not to keep such money in his possession for more than a week after re- ceiving the same; and in case of dissatisfaction on either side, a month's notice in writing to termi- nate the agreement was to be given : — Held, by the Court, that upon the construction of the above agreement, he was not a clerk or servant, or em- ployed for the purpose or in the capacity of a clerk or servant, within the meaning of 24 & 25 Vict. c. 96, s. 68, and could not therefore be con- victed of embezzlement. The Queen v. Bowers, 35 Law J.Eep. (n.s.)M. C. 206 ; Law Eep. 1 C. C. E. 41 . (J) Treasurer of friendly society, 4. — A treasurer of a friendly society, duly en- rolled and the rules of which had been certified by the barrister appointed in that behalf; whose duty it was to receive the moneys paid into the society, and hold them to the order of the secretary, countersigned by the chairman, or a trustee, and to account whenever called up, to which office no salary was attached, is not a clerk or servant liable to be indicted for embezzlement under 24 & 25 Vict. c. 96, s. 68. The Queen v. Tyree, 38 Law J. Eep. (n.s.) M. C. 58 ; Law Eep. 1 C. 0. E. 177. (c) Assistant overseer. 5. — An assistant overseer of a parish, elected by the parishioners in vestry under the 69 Geo. 3. c. 12, s. 7, who fix his duties and salary, is to be deemed the servant of the inhabitants of the parish, and to receive money collected by him for the poor-rate levied upon the parish as such ser- vant, and may be so described in an indictment for embezzling such money so received. The Queen V. Carpenter, 35 Law J. Eep. (n.s.) M. C. 169 ; Law Eep. 1 C. C. E. 29. EEEOE. [See Peactice at Law (Q).] ESCHEAT. The Court, upon the petition of a lord of a manor, ordered that he should be at liberty to traverse an injxinction, under which it had been found that certain hereditaments held of the manor had reverted to the Crown for want of heirs. In' re -Ann Parry, ex parte the Duke of Beaufort, 35 Law J. Eep. (n.s.) Chauc. 661 ; Law Eep. 2 Eq. 95. ESTOPPEL-EVIDENCE. 219 ESTOPPEL. (A) By Debd. (B) B* Conduct. (A) Bt Deed. 1. — ^A surveyor to a benefit building society executed, without reading it, a mortgage deed in supposed accordance with certain arrangements he had made with the society. The deed, contrary to the fact, and beyond what had been agreed to, coittained recitals that he had taken shares in the society :-^Held, upon an application under a winding-up, that he was entitled to have his name removed from the list. _ In re Victoria, Permanent Benefit Building, ^c.. Society, Empsoa's case, Law Kep. 9 Eq. 597. 2. — By an Act for improving the town of H commissioners "^ere empowered to raise money by a rate, and to borrow money upon the credit of the rate. The Act gavq a form of mortgage secu- rity, and for the trilnsf^r of such security by the holder thereof. No person while he was a com- missioner was capable of entering into contracts with the body of the commissioners ; but in 1835, H, who was one of them, agreed to supply the rest of the body with a quantity of bricks, which were required for building purposes. It was ar- ranged that he should receive securities for 1001. each in consideration of the supply of bricks. The transaction was carried out, and he received secnrities in the form given by the Act, and which respectively purported to be granted " in consid- eration of the sum of 100/. advanced and lent by" H. Subsequently these securities were transferred in the manner provided by the Act, and were as- signed to the plaintiffs, who took proceedings upon them demanding that the commissioners should apply the money in their hands that had been raised by rates, or which should thereafter be so raised, in payment of the interest payable on the securities : — Held, that the commissioners were estopped from disputing the validity of the secu- rities, and that they could not set up as a defence that they had been granted in consideration of the bricks supplied, instead of, as they purported to be, in consideration of money advanced and lent. Webb and others v. TJte Commissioners for Improving the Town of Herne Bay, 39 Law J. Kep. (n.s.) Q. B. 221 ; Law Eep. 5 Q. B. 612. (B) By Conduct. 3. — The mere fact that a man has on previous occasions paid bills of exchange to which his acceptance had been forged or written by another person without his authority, does not involve a holding out that he will adopt subsequent accept- ances of a like nature : and he will not be thereby estopped from denying their authenticity, although he has given no notice of repudiation. Barber v. Gingell, 3 Esp. 60, distinguished. Morris v. Bethell, Law Eep. 5 C. P. 47. 4. — The owner of goods deposited in a granary adjoining a railway station, sold for credit a por- tion of them without breaking bulk ; the purchaser Digest, 1866-7P. then resold for cash, and gave a delivery order. The sub-purchaser, after having paid his money, applied through t^ie station-master to have the sale confirmed. The original vendor thereupon said it was all right, apd he would put the goods on the line as soon as the statiourmaster should receive the delivery order. The first purchaser having become bankrupt without paying the price : — Held, that the original vendor was estopped, by the statement he had made to the station-inaster, from preventing the delivery of the goods to the sub-purchaser ; for the position of the latter was altered by such statement, as he might — except for it — have taken steps to recover his money, from the first purchaser. Knights v. Wiffen, 40 Law J. Eep. (n.s.) Q. B. 51 ; Law Eep. 5 Q. B. 660. [See also Attornment, 2 ; Erei. of Exchange, 6 ; Company (E) 104, 107 ; Deed, 3 ; Di- vorce, 114, 147 ; Evidence, 17 ; Landeoed AND Tenant, 6 ; IVIoetgagb, 32 ; Plead- ing AT Law, 7 ; Practice at Law, Intee- eogatoeies, 15; Scotch Law, 1.] EVIDENCE. (A) Admissibility and sufficiency op Evi- dence IN particular. (a) Competency of witness. (6) Admission by conduct. (c) Evidence of ovmership. (1) In action for work done. (2) In action against shipheeper for negligence. {d') Evidence of account stated. (e) Evidence to discredit witness. {f)Uncorroborated evidence of interested witness. (g) Evidence given in previous action. (A) Evidence of possession : judgment by de- fault in ejectment. (i) Ei'idence of birth. (k) Evidence in criminal cases. (B) Judicial Documents. (a) Certificate of appointment of assignee, (b) Certificate of conviction. (c) Probate of will. (d) Judgment of Divorce Court. (C) Peivate Documents. (a) Entries of deceased persons. (6) Letter of advice from deceased agent. (D) Secondary Evidence : Policy op Insur- ance. (E) Parol Evidence to explain and vary VlfEITTRN DOCUMENT. 0-) To explain wUl. (2) To explain and vary written con- tract. (F) Declaration of deceased persons. (G) Presumptive Evidence. (H) Confession. (I) Deposition. (K) Onus of Peoof. (L) In pabticulab cases. KK ^50 EVIDENCE (A), (A) Admissibility and suffictenct of Evi- dence IN PARTICULAR CASES. (a) Competency of witness, (1) Evidence of husband to prove child! s illegi- timacy. 1. — A petition which sought to establish a claim on the ground that a certain person was illegiti- mate by reason of the adultery of his mother, who had since been divorced ; — Held, not to be " a pro- ceeding instituted in consequence of adultery," within the meaning of the Evidence Further Amendment Act, 1869, (s. 3), so as to make the husband competent to give evidence tending to prove the fact of non-access. But held also, that independent evidence shew- ing that, on the only occasion when the husband visited the place where his wife was residing, he was engaged in collecting evidence with a view to a divorce, would be sufficient to raise a presump- tion of non-access. In re B — 's Trusts, 39 Law J. Eep. (n.s.) Chanc. 192. (2) Withdrawal of evidence of incompetent witness. 2. — It is the duty of the Judge presiding at a trial to decide as to the competency of a witness ; and if he has admitted a witness to give evidence, but, upon proof of subsequent facts affecting the capacity of the witness and upon observation of his subsequent demeanour, the Judge changes his opinion as to his competency, the Judge may stop the examination of the witness, strike his evidence out of his notes, and direct the jury to consider the ease exclusively with reference to the evidence of the other vfitnesses. The Queen v. Whitehead, 35 Law J. Eep. (n.s.) M. C. 186 ; Law Rep. 1 C. C. K. 33. Evidence of arbitrator ■ to impeach award. [See Arbitration (D) 9 ; Lands Clauses Act, 21.] Evidence to contradict implied authority. [Principal and Agent, 3.] Evidence of accomplices jointly indicted. [See Jury, 1.] (i) Admission by eondmct. 3. — The fact that one of the parties to an action, who is not himself examined as a witness, has requested other persons to make false statements at the trial, may be proved as evidence against his whole case, as being equivalent to an admission by him that it is not a good and genuine one. And it makes no difference that the party thus attempting to procure false testimony is bringing the action not on his own account, but for injuries done to his wife. In an action by husband and wife, for an injury to the wife by the defendants' negligence, witnesses were called by the defendants, who proved that the husband and clerk in the office of plaintift s attorney had joined in requesting them to give evi- dence in support of the plaintiff's ease, although they knew that the witnesses were not present at the accident: — Held, that the evidence ought to be received as amounting to an admission by conduct that the plaintiff's case was not a good and genuine one. Moriarty and Wife v. The London, Chatham and Dover Baiivfay Company, 39 Law J. Rep. (n.s.) a. B. 1 09 ; Law Rep. & Q. B. 314. (c) Evidence of ownership. {\) In action for work done. 4. — At the trial of an action, brought to recover from the defendant a sum of money for work done and materials supplied in respect of certain dwel- ling-houses and premises, it was alleged by the plaintiff and denied by the defendant, that he (the plaintiff) had received orders from the defendant to do th6 work and supply the materials. The dwelling-houses were being erected by L & B, who had originally given orders to the plaintiff, and at the trial it was contended for the defendant that credit had been given to L & B, and that he was simply mortgagee. It was contended for the plaintiff that the defendant was really owner and personally interested in the premises; that L & B were his agents : — Held, that the plaintiff was at liberty to call other persons to prove that they had received orders from the de- fendant personally to do work or to supply materials upon or for the same dweUing-houses, as such proof was evidence to shew that the de- fendant was really the owner and person interested in the dwelling-houses. Woodwardv. Buchanan, 39 Law J. Rep. (n.s.) Q. B. 71 ; Law Rep. 5 Q.B.285. (2) In action against shipjceeper for negligence. 5. — A ship, of which the defendant was the registered owner, was lying in a dock under the care of a shipkeeper. One of the hatchways was left open by the negligence of that person, and the plaintiff, who was lawfully passing across the ship, fell down the hatchway and was injured. He brought ah action against the defendant. At the trial, it was proved and found by the jury that the injury was occasioned by the negligence of the shipkeeper, but the only evidence to fix the defen- dant was the proof of the register in which he was desojibed as "owner": — Held, by Blackburn, J., and Lush, J. (Mellor, J., dissentiente), that this was evidence to be left to the jury, and would have justified them in finding that in fact the defendant had employed the shipkeeper, Hibbs v. i?oss, 3.fi Law J. Rep, (n.s.) Q. B. 193 ; 7 Best & S. 655 ; Law Rep. 1 Q. B. 534. ((Z) Eyidencmof account stated. 6. — A having agreed to become surety for the repayment by B of an advance of money made by C to B, the following memorandum was signed by A and B, and given to C : " We jointly and sever- ally owe you &01." Held, there was evidence to go to the jury of money lent to and account stated as against A and B. Bv/yk v. Hurst, Law Rep. 1 0. P. 297. (c) Evidence to discredit witness. 7. — In order to impeach the credit of witnesses for the prosecution, the prisoner jnay call wit- EVIDENCE (A), (B); 251- nesses to prove, thAt from their knowledge of the general reputation of the witnesses for the prose- cution, they would not believe them upon their oaths. The Queen v. Brown and another, 36 Law J. Eep. (n.s.) M. C. 59 ; Law Eep. 1 C. C. R. 70. (/) Uncorroborated evidence of interested vntness. 8. — The Court will never give a person any- thing on his own uncorroborated evidence against another after that other's death. Sogers v. Powell, S8 Law J. Eep. (n.s.) Chanc. 648. 9. — Upon a petition for payment out of money in Court to a widower and five children, which was resisted by a sixth child : the evidence of the husband that such child was born in adultery was not received without corroboration, notwithstand- ing sect. 3 of the Evidence Further Ainendment Act, 1869; and though the petition was allowed to be a proceeding "instituted in consequence of adultery," to do so would have put it in the power of a husband or wife alone to bastardise issue. In re Eideout's Trusts, 39 Law J. Eep. (n.s.) Chanc. 192 ; Law Eep. 10 Eq. 40. {g) Evidence given in previous action. 10. — ^Evidence given by a witness on the trial of a former action of ejectment is not, on proof of the death of such witness, admissible for a plain- tiff in a subsequent action brought to recover the Bame property, if the last action, though against the same defendant and involving the same ques- tion of title be not brought by the same plaintiff as in the former action, or by one ■ claiming under him, but by the father of the plaintiff in such former action. Morgan v. Nicholl, 36 Law J. Eep. (k.b.) C. p. 86 ; Law Eep; 2 C. P. 117. (Ji) Evidence of possession : judgment by default in ^ectment. 11. — In an action of trespass for mesne profits, proof that the defendant had had a lease of the premises at a certain yearly rent, and that he had suffered judgment by default in a previous action of ejectment for the same premises, was held sufficient to shew that he was in possession at the date of the writ of ejectment. Per Kelly, C.B., judgment by default in eject- ment is, per se, no evidence of the defendant's ■possession at all. Per Channell, B. and Cleasby, B., it is prim4 facie evidence of his possesion at the date of the writ, though not for any period anterior tc it. Under a claim fol "great^ expenses in recovering possession" of the premises, the plaintiff in an •aetion for' mesne profits may recover the costs of the prior action of ejectment. Fearse and others t. Cooker, 38 Law J. Eep. (n-.s.) Ex. 82; Law Eep. 4 Ex. 9'2. (i) Evidence of. birth. 12. — The entry in a register of births under 6 & 7 Will. i. c. 86, is evidence only that the birth took place before the date of re^stration, not of the exact date of thebirti. Be Wintle, Law Eep. 9 Eq, %n- {k) Evidence in criminal cases. 13. — On the trial of an indictable offence, com- mitted on board a British ship on the high seas, it is not necessary to prove the register of such ship under the Merchant Shipping Act, 1854, part 11, or that she belongs to a person qualified to be owner of a British ship according to the terms of that Act. Upon the trial of an indictment against a sailor for wounding the mate on board a ship on the high seas, the master of (^he ship, the boatswain, and one of the crew, stated that the ship was a British ship, and that' she was sailing under the British flag : — Held, that the ship was sufficiently proved tc be a British ship. The Queen y. 8. Von Sebery, 39 Law J. Eep. (n.s.) M. C. 133. Examinations in bankruptcy. [See Baeok AND Feme, 16.] (B) Judicial Doottments. (ffl) Certificate of appointment of assignee. 14. — In order to prove his title as creditors' as- signee, the plaintiff put in evidence a certificate, dated before action, certifying his proper appoint- ment before action, signed by the Eegistrar for the Commissioner, and sealed with the seal of the Bankruptcy Court: — Held, that the certificate so sealed was conclusive, and that the defendant could not go into evidence to shew tha^ there was no sig- nature by the Commissioner or his deputy till after action brought. Kelly v. Morray, 35 Law J. Eep. (n.s.)C.P.287; H.&E.684; Law Eep, 1 C. P. 667. (6) Certificate of conviction. 15. — A certificate of a conviction, made at the Quarter Sessions of a borough, within the Muni- cipal Corporations Act, purporting to be signed by a person described thereon as deputy clerk of the peace of the said borough, and having the custody of the records of the said Quarter Sessions, is admissible in evidence, under the 8 &~9 Vict, c. 1 1 3, s. ] , as purporting to be made by an ofBeer having the custody of tfee records of the Court where the conviction was made, within the 5 Geo. 4. c. 84, s. 24, although the Municipal Corpora- tions Act, 6 & 6 Will. 4. c. 76, gave no pffiwer to appoint a deputy clerk of the peace for A borou^ within that Act. The Queen v. Parsons, 35 Law J. Eep. (n.s.) M. C. 167 ? Law Eep. 1 G. C. E, 24. Per Bramwell, B. — A person de facto filling' an office, carrying with it the' custody of the re^ cords of the Court, may la'wfirlly give such a certificate, although he may not hold such officai dejure. Ibid. ((!) Probate of mil'. 16. — In ejectment to recover house property, the defendant, who claimed to be entitled to the- property under a devise, gave notice to the plain- tiff that he intended to adduce in e-vidence on the-- trial the probate of the will as proof of the devise- to him. The plaintiff did not within four day* after the receipt of the notice give a counter-noticef that he- disputed the validity of the destise;' At KK 2. 252 EVIDENCE (C), (E). • the trial of the case, the defendant produced the probate, and the plaintiff was nonsuited, on the ground that, having omitted to give notice within the period of four days that he intended to dispute the validity of the devise he was precluded from doing BO by section 64 of 20 & 21 Viet. e. 77, al- though he was prepared with evidence to shew the incapacity of the testatrix : — Hfeld, reversing the jiidginent of the Court of Queen's Bench, 36 Law J. Eep. (n.s.) Q. B. 26 ; 7 BeBt & S. 170, that the nonsuit must be set aside and a new trial had, as the probate could not be taken to be conclusive evidence of the validity of the devise, and that the plaintiff ought to have been allowed to contest the validity. Bafraclovgh v. Greenhough, 36 Law J. Eep. (n.s.) Q. B. 261 ; 8 Best & S. 623 ; Law 2 G. B. 612. . Semble — That the notice should have been served upon the attorney or upon his agent, and not upon the opposite party. (d) Judgment of Divorce Court. 17. — In an action for necessaries supplied by the plaintiff to the defendant's wife whilst living apart from him, the defendant in order to establish his wife's adultery, produced in evidence the record in the Divorce Court, in a suit by him against his wife for dissolution of marriage on the ground of adultery, in which it was found that his wife had been guilty of adultery, but as the husband was found to have been also guilty of adultery, the Judge Ordinary had dis- missed the suit : — Held, that such evidence was admissible under the plea of never indebted ; but that, as the judgment in the Divorce Court had not altered the status of the wife, it was not con- clusive evidence of the adultery in the action between the plaintiff and the defendant. Needham V. Bremner, 35 Law J. Eep. (n.s.) C. P. 313 ; H. & E. 731 ; Law Eep. 1 C. P. 583. Judge's notes. [See Pmvt Council.] Notarial certificates. [See Pkactice in EaniTY (V) 11.] (C) pEirATK Documents. (a) Entries of deceased persons. 18. — In cases where a family pedigree has to be proved, entries of births, deaths and marriages of members of the family made in a New Testament, which is produced by a member.of the family, and proved to have been in the possession of the family •for a considerable time, are admissible in evidence without proof of the handwriting. The question of identity of a person flamed in a certificate of birth, death, or marriage with the person to whom the name is alleged to refer, is for the jury, and proof of such identity is not essential to the admissibility in evidence of the document. Hubbard V. Lees and Purden, SS Law J. Eep. (n.s.) Ex. 169; 4 Huri. & C. 418; Law Eep. 1 Ex. 255. 19. — Written entries by third parties (de- ceased) made in the exercise of a professional or official duty, may be receivable in the absence of better evidence. The proceedings properly authenticated of Commissioners acting under the Tithe Commuta- tion Acts, may be received as public evidence of the matters therein stated. Giffard v. WilUamSi 38 Law J. Eep. (n.b.) Chanc. 736 ; Law Kep. 8 Eq. 494 : 39 Law J. Eep. (n.s.) Chanc. 735 ; Law Eepj 5 Chanc. 646. [And see PoOE, 6.] (b) Letter of advice from, deceased agent. 20. — A local agent, whose duty it was to ad.: vise his principals of all his transactions on their account, wrote them a lettgr, in which were these words : "I inclose draft of B, which he sent to- day with three huge cases to the office. I inclose his invoices for your perusal. He leaves ship- ■ ment of his goods to your judgment. He will renew I consider him a perfectly «afe man, should there be any reclamation. He draws for 76%:" — Held, that this letter could not be used by the principals after the agent's death, to prove the nature of the transaction to which it referred, as it was neither a record of the transaction, which it was the specific duty of this agent to make, nor an entry against his interest. Where goods are consigned to an English mer- chant for shipment and sale abroad, — Quaere, whether a contract may be implied on the part of the consignor to accept the account sales as primi facie evidence of the amount realised from the sale, Smith and others v. Bldkdy, 36 Law J. Eep. (n.s.) Q.B. 156; 8Best&S. 167; LawEep.2 Q.B.326. (D) Secondaet Evidence: Polic* op Insce- ANCE. 21. — In an action upon a policy of marine in- surance, the defendant pleaded a traverse of the insurance. At the trial the plaintiff gave evi- dence that the usual course of business was, that upon execution of a policy, a copy was delivered by the underwriter's broker to the assured, but the original remained in the hands of the broker till the payment of the premium ; he proved that a document purporting to be a copy policy' had been delivered to him by the defendant's broker, and having given notice to the defendant to pro^ dlice the original , and it not being produced, he tendered the copy in evidence to prove the exist- ence of a duly stamped and executed policy. The defendant's counsel then proposed to call witnesses to shew that no such policy as alleged had ever been executed, and asked the Judge to hear this evidence, and decide upon it as a necessary pre- liminary to the admissibility of the copy. The learned Judge refused to do so, and admitted the copy:— Held, that he was right in so doing, inas- much as by doing otherwise he would have de- cided the issue which was for the jurjr. Boyk V. Wiseman, 11 Ex. Eep. 847; 24 Law J. Eep/ (n.s.) Ex. 160, distinguished. Sto'me and others V. Querner, 39 Law J. Eep. (n.s.) Ex. 60 ; Law Eep. 5 Ex. 155. (E) PABOL EviDENCfi TO EXPIAIN AND VABT WRITTEN DOCtriilEST. (1) To explain will, [See WiLi,, CoNSTEticTioN (B), (G) («).] EVIDENCE' (E), (I). 2.')3 (2) To explain and vary written contract. 2 2 , — To an action by the payee against the drawer of a bill of exchange, payable twelve months after date, the defendant pleaded that the bill was drawn for the accommodation of the acceptor, and as surety for him, and that at the time of the drawing and delivery of the bill to Uie plaintiff, it was agreed between the plaintiff, the defendant, and the ac- ceptor, that the latter should deposit with the plaintiff certain securities, viz., a lease and dock warrants, and that in ease the bill should not be duly paid the plaintiff should sell snch securities, and apply such proceeds in payment of the bill, and that until so sold the defendant should not be liable for the bill. The plea alleged the (deposit by the acceptor of such securities on the above terms, and that the plaintiff had not so'd them, but still held them : — Held, Willes, J., dubitante, that as the agreement stated in the plea varied the terms of the written contract on the bill, oral evi- dence of it was not admissible. Abrey v. 'I'heo- dore Crux, 39 Law J. Eep. (n.s.) C. P. 9 ; Law Rep. a C. P. 37. 23. — Default in payment of a debt due under seal means an omission to pay contrary to the terms of the deed, and without the concurrence of the creditor. The plaintiff, in order to secure repayment of a sum of money lent to him by the defendants, assigned by deed in the ordinary form of a bill of sale all his household furniture, &o., subject to a proviso for redemption if the sum was paid by weekly instalments ; provided that if the plaintiff ■ fehoald " make default in payment " of the sum, or any part thereof, when it should become due, the -whole of the moneys secured should be then im- mediately due and payable, and it should be law- ful for the defendants to take possession of the goods and sell them. The plaintiff being unable to pay one of the instalments, went to the offices of the defendant, a company, limited, and saw their secretary, who consented to wait till n later day, but before that day possession of the goods was taken, and on a subsequent day, after the tender of a sum which the plaintiff had been told would be sufficient to cover all claims, the goods were removed and sold. In an action to recover damages for the seizure and sale : — Held, 1, that parol fividence of the time haying been enlarged for paypent of the money was admissible, as it shewed that there had been no "default" within the meaning of the deed; 2, that the secretary had authority to' bind the company, and therefore the plaintiff was entitled to maintain the action. Albert V. Grosvenor Investment Company/, Limitid, 37 Law J. Rep. (n.s.) Q. B. 24) 8 Sest & S. 664; LawEep. 3Q. B. 123. £Aud see Vendob aotj Pubchaseb, 26 ; FnitoS, StATDTB of, 14; PEKJCBY, 6.] (F) Declahations of deceased pbesons. 24.^-On a trial for murder, it appte&red Shat the declaration of the murdered woman waS ta'kto iinst a County Court hearing and de- NN 274 FEIENDLY AND" OTHER SOCIETIES (D), (E)-GAME. termining such matter to shew that the usual and principal place of business of the society is not situate within the district of "such Court, without shewing also that the society has no usual place of ' business within such district. Shea v. The United Sick and Burial Society of Saint Patrick, 37 Law J. Eep. (n.s.) C. p. 50 ; Law Eep. 3 C. P. 21. 14. — "Where, by the rules of a friendly society, disputes between the society and a member are to be referred to Justices, such Justices have no power to state a case under 20 & 21 Vict. c. 43. Watts V. The Justices of Kent, 35 Law J. Eep. (n.s.) M.C. 190, overruled. Cdlaghan v. Dollwin, 38 Law J. Eep. (n.s.) M.C. 110 ; Law Eep. 4 C.P. 288. Jurisdiction to state case. [See Power, 21.'] (D) Actions against. 15. — A rule of a benefit building society, en- rolled under the 6 & 7 Will. 4. c. 32, provided " that any member who should be desirous of withdrawing from the society any share or shares, should be allowed to do so on giving two months' notice in writing, of such his or her intention, to the secretary, subject to the pnyment of all fines then due, and to a certain deduction as a propor- tionate share of expensep incurred. Provided al- ways, that the deduetiion should not extend to widows and children of deceased members, who should always have a priority in cases of with- drawal. Another rule provided " that the board of management for the time being should determine all disputes which might arise respecting the con- struction of the rules, or of any of the clauses, matters or things therein contained ; and also of any additions, alterations, or amendments which should or might thereafter arise between the board and any member of the society ; and in the event of their decision being unsatisfactory, then to be referred to arbitration." The plaintiff, a member of the society, gave notice of his intention to withdraw, and claimed the amount of his shares. The board refused to pay it, on the ground that previously to the plaintiff's notice other members had given notice of withdrawal, and were therefore entitled to priority of payment, and that the so- ciety had no funds to pay the plaintiff's claim. The plaintiff thereupon brought the present action : — Held, that the plaintiff"s claim was a dispute between the board and a member of the society respecting the construction of a rule, and therefore the action was not maintainable, but the dispute must be determined by the board or arbitrators. Wright V. Deley and others, 4 Hurl. & C. 209. (E) WiNDINQ-UP. 18. — A permanent building society having fallen into difficulties, in consequence of the defalcation of a seert'tary, was wound up by order of the Court. By the rules of the society, shares might be taken at and commence from diffiarent times, but the ultim- te value of each share was to be 120^., and members were to continue to pay their subscriptions monthly for fourteen years, or until all shares of the same date should have attained the full value of 120^. The rules also provided that the funds of the society should belong to the members in proportion to the time they had. been subscribers, and that at the end of fourteen years from the date of each share, or when the accumu- lated subscriptions with interest amounted to 120?. the unadvanced shareholders (i.e. those to whom no advance of their shares had been made on mort- gage) should be repaid the sum of 120?. per share. At the winding up of the society, the assets were insufficient to repay in full the unadvanced share- holders the amount they had paid upon their shares. Some of these shareholders had paid up the greater part of their shares, whilst others who had recently become shareholders had paid up much less. A call had been made by the official liquidator upon all the shareholders for the purpose of satisfying the claims of the unadvanced shareholders, but had been already discharged as to the advanced share- holders : — Held, that the order must also be dis- charged as to the unadvanced shareholders, and the assets must be distributed among the unad- vanced shareholders pro rat4 under the society's rules, in proportion to the time for which they had subscribed to the society. In re The Doncaster Permanent Benefit Building Society. Ex parte Bopper, 36 Law. J. Eep. (n.s.) Chanc. 871 ; Law Eep. 4 Eq. 579. 17. — A permanent benefit building society having been ordered to bewound up, and the ad- vanced members having since redeemed their mort- gages by paying up their subscriptions, &c., for- the term prescribed by the rules (fourteen years), all the debts of the society to third parties were thereout paid. The advanced as well as the un- advanced members were put on the list of contri- butories, and a call made to repay to the unad- vanced members what, according to the rules, they would be entitled to upon withdrawing from the society (their subscriptions with interest) : — Held, the advanced members ceased to be members upon redeeming their mortgages, and that they were not liable to a call. In re Doncaster Permanent Build- ing Society, Law Eep. 3 Eq. 168. 18. — Where one who had lent money to the directors of a society, who had no power to borrow, for the purposes of the society, presented a petition to wind up the company : the petition was dis- missed, the petitioner having no legal or equitable claim against the company. Be National Perma- nent Building Society. , Ex parte Willianuon, Law Eep. 5 Chanc. 309. ' Appeal from County Court. [See County COTIKT, 27.] Transfer of mortgage te Friendly Societies, [See Stamp, 6.] GAME. (A) Offence against Game Laws, what is. (B) Offences under 1 & 2 Will. 4. c. 32. (a) Snaring game on Sunday. (b) Using engine (o take game out of season. (C) Prevention of Poaching Act. (D) Covenants as to Game in a Lease, GAME— GAMING (A). 275 (A) OfPBMOB AGAIKST GAME LaWS : WHAT IS. 1. — A lease contained a condition for re-entry " if the lessee, his executors, administrators or assigns, or any tenant, under-tenant, or occupier of the land demised, or any part thereof, should at any time during the term, be lawfully convicted of committing any offence against any of tlie present or future Game Laws ":— Held, that the conviction of the occupier of the demised premises for shoot- ing game without a game certificate did not entitle the assignee of the reversion to maintain eject- ment. Held, by Martin, B., Channell, B., and Cleasby, B., that the condition was personal, and might be broken by the lessee committing the offence any- where, and therefore did not touch or concern the land demised, so as to run with the land, according to the rule in Spencer's case, 6 Eep. 16. Held, by Kelly, C. B., that shooting game with- out a certificate is not an offence against the Game Laws within the meaning of the condition, but only an offence again.'it the Eevenue Laws. Semble — Per Channell, B., that it is an offence against both the Game and the Revenue Laws. Stevens v. Copp, 38 Law J. Rep. (n.s.) Ex. 31 ; Law Rep. 4 Ex. 20. (B) Obfences under 1 & 2 Will. 4. c. 32. (a) Snaring game on Sunday. 2.— The 1 & 2 Will. 4. i:. 32, s. 3, provides, that " if any person whatsoever shall kill or take any game, or use any dog, gun, net, or any , other engine or instrument for the purpose of killing or taking any game on a Sunday or Christmas Day, - such person shaH, on conviction thereof, forfeit and pay for every such offence such sum of money not exceeding 51., as to the said Justices shall seem meet." The appellant on Friday and Saturday, August 13 and 14, was setting snares made of wire upon land over which, by consent of the owner and occupier, he had the right of sporting. Upon the following Sunday the snares were still set^ and on jiiat day two dead grouse were found caught in two of them. The appellant had a proper Excise licence to kill game : — Held, first, th.at a snare is an " engine " or " instrument " within the sec- tion ; and second, that although the appellant was not upon the land on the Sunday, he was liable to be convicted for using the snares on that day for the purpose of taking game. AUen v. Thompson, 39 Law J. Rep. (n.s.) M. C. 102 ; Law Rep. 5 Q. B. 336. (b) Using engine to take gam,e out of season. 3.— The 1 & 2 Will. 4. c. 32, b. 23, imposes a penalty on a person who uses an instrument for the purpose of taking game not being authorised BO to do for want of a game certificate : — Held, that an uncertificated person who set a trap for the purpose of taking partridges or pheasants in the month of March, was liable to be convicted under that section, notwithstanding the 3rd section of the same Act. The penalties imposed by the 23rd» section of 1 & 2 Will. 4. c. 32, are cumulative upon those im- posed by the 3rd section of' that Act. Sanders v. Saldy, 35 Law J. Rep. (n.s.) M. 0. 71 ; Law Rep. 1 Q. B. 87. (C) Peevention of Poaching Act, 25 & 26 ViOT. c. 114: search by constable. 4.— By the 25 & 26 Vict. c. 114, s. 2, it is law- ful for a constable in any highway, &c., to search any person whom he has good cause to suspect of coming from land where he" has been unlawfully in search, &c. of game, and having in his posses- sion game unlawfully obtained or certain other specified things, and should game, &c. be found, to seize and detain it ; and such constable shall, in such case, apply for a summons against such person, and if such person has obtained such game by unlawfully going on any land, in search, &c. of game, or have used the other things in a certain way, such person, on conviction, shall pay a certain penalty and forfeit such game, &c., andif there be no conviction, have the game, &c. or its value restored : — Held, that, in order to give the magistrates jurisdiction, the game, &c., must be found by the constable on the person of the ac- cused on the highway. Clarke v. Crowder and others, 38 Law J. Rep. (n.s.) M. C. 118 ; Law Rep. 4 C. P. 638. (D) Covenant as to, eunnin* with the Land. [See Covenant, 19.] GAMING. (A) Gaming and Wagering. (B) Suppression of Betting Houses. [Betting in the streets of London prohibited, 30 & 31 Victc. 134, B. 23.] [Persons betting or gaming with coin in the streets to be treated as rogues and vagabonds, 31 & 32 Vict. <,. 52, s. 3.] (A) Gaming and Wagering. 1. — An agreement between two persons, each of whom is possessed of a horse, to ride a race, the winner to have both horses, is null and void, being an agreement by the way of wagering, within the meaning of 8 & 9 Vict. c. 109, s. 18, and not an agreement to contribute towards a prize to be awarded to the winner of a lawful game, within the meaning of the proviso in.thnt section. Coomhs Y.Dibbli, 35 Law J. Rep. (n.s.) Ex. 167 ; 4 Hurl. &,C. 375 ; Law Rep. 1 Ex. 248. 2. — It is a good answer to an action for money had and received that the money was deposited in the hands of the defendant to abide the event on which a wager was made, and was claimed by the plaintiff as the winner of the wager, and that the' plaintiff did not repudiate the wager, or demand' back his money before the event thereof, and had never repudiated the wager, or claimed the money on any other ground than as the winner of the wager, and that no part of the money was a sub- scription or contribution or due on any agree- NN 2 276 GAMING (B)— HEIRLOOMS. ment to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise. Savage v. Madder, 36 Law J. Eep. (n.s.) Ex. 178. (B) Suppression op Bbttinq-hotjses. 3. — Upon a slip of land adjoining a race-course during the races was erected a temporary wooden structure, five feet high, without a roof. Over it a board was exhibited, upon which was the name of the proprietor and betting lists containing the odds upon and against each horse which he was willing to bet. The structure had two frontages, and boards used as desks fronting each way. At each desk within a man sat with a book for the purpose of recording the bets made with persons outside. Persons betting deposited money and received a card containing the terms of the bet : — Held, that this was an "ofB.ce or place "within the meaning of the Act for the Suppression of Betting-Houses. ShawY. Morley, 37 Law J. Hep. (n.s.) M. C. 105; Law Eep. 3 Ex. 137. GAOL. [See Prison ; also Trespass ; Sherifp, 9.] GARDENS AND ORNAMENTAL GROUNDS. [See Metropolitan Board of Works, 1.] GAS. Exertion as to, in policy of insurance. [See Insurance, 6.] GUARDIAN. (A) Of Infant: Settled Estate Act. [See Infant.] (B) Ad Litem. [See Divorce, 20, 101 ; Probate (K) 17.] (0) Of the Poor. [See Poor.] GUN LICENCE. [Required by 33 & 34 Vict. c. 57.] HABITUAL CRIMINALS. [For enactments for the suppression of crimes committed by convicts at large. See The Habitual Criminals Act, 32 & 33 Vict. c. 99.] HACKNEY CARRIAGE. [The law regulating Hackney Carriages largely altered and amended. 32 & 33 Vict. c. 115. See also 30 & 31 Vict. c. 134, s. 17, and 32 & 33 Vict. c. 14, and Ibid. c. 103.] The words " street or place " in section 35 of the Hackney Carriage Act (Metropolitan), 1 & 2 Will. 4. c. 22, mean a street or place, and the driver of a hackney carriage who, by arrangement with a railway company, is waiting in their station (being their private property) for any passenger arriving by train who may require to hire him, is not liable to a penalty for refusing to be hired by a person, not being such passenger, who comes into the station for the purpose of hiring a cab. Case V. Storey, 38 Law J. Rep. (n.s.) M.C. 113; Law Rep. 4 Ex. 319. [See also Rate, 4.] GAS AND WATER WORKS. ^ [Facilities given for obtaining moneys for the construction of gas and water works, and for obtaining gas and water, 33 & 34 Vict. c. 70.] GENERAL AVERAGE. [See Marine Insurance (K) ; Shipping (L).] HARBOUR. Compnlsory pilotages at Newcastle-on'I)/ne. [See Shipping (G) 1 .] Tolls, goods landed. [See Tolls; Statute, 2.] HAWKERS. [Regulations as to, enacted by 29 & 30 Vict. c. 64, s. 12.] [See Negligence, 27 ; Rate, 20 ; Statutes, Construction, 2.] GIFT INTER VIYOS. [See Bill of Exchange, 12, and Donatio Mortis CausA.] -GUARANTIE. [See Principal and Surety.] HEALTH. [See Public Health.]- HEIRLOOMS. 1. — ^A testatrix bequeathed jewels to J S "to go and be held as heirlooms by him and by his eldest son on his .jiecease, and to go and descend HEIELOOMS— HIGHWAY (A). 277 to the eldest son of such eldest son, and so on to the eldest son of his descendants, as far as the rules of law or equity would permit," and she re- quested J S to do all in his power, by his will or otherwise, to give eflfect to that her wish : — Held, that these words created an executory trust in J S, and that the jewels must be settled on J S for life, with remainder to his eldest son for life, with re- mainder to the eldest son of such eldest son, but to be divested in case of his death in his father's life, or after his father's death under twenty-one ; but that, subject to these limitations, the benelicial interest in the jewels remained in J S. Shelley v. SlieUey, 37 Law J. Rep. (n.s.) Chanc. 367 ; Law Hep. 6 Eq. 640. •' Family jewels may be settled as heirlooms inde- pendently of any real estate. Ibid. 2. — By a settlement, dated in 1804, real estate was settled to the use of 0, Earl of H, for life,' with remainder to the eldest son, C, for life, with remainder to his first and other sons in tail, with remainders successively to the second, third and fourth sons of C, Earl of H, for life, with similar remainders to their first and other sons in tail, with the ultimate remainder to C, Earl of H, in fee. By his wiU, C, Earl of JI, bequeathed chat- tels to trustees, in trust for the person or persons who for the time being should, under the limita- tions in the settlement, be in the actual possession of the estates, to the intent that the same chattels might be deemed heirlooms to go along and for ever be used and enjoyed with the estates, so far as the rules of law or equity would permit, but so nevertheless as that the same chattels should not, as to the effect or purpose of transmission, vest absolutely in any person who under the settlement should become seised of or entitled to the estates for an estate of inheritance, either in possession or reversion, or otherwise, unless such person should attain the age of twenty-one years, or dying under that age should leave issue inheritable under the limitations in the settlement ; and the testator be- queathed his residuary personal estate upon trust for investment in land to be settled to the same uses as the settled estate. C, Earl of H, died in 1829. C, his eldest son, died in 1851, having had an only son, who died a minor in his father's life- time. The second son of C, Earl of H, died with- out issue, and the third son died in 1862, leaving S, his only son, who became first tenant in tail in possession under the settlement, but died without issue and a minor, whereupon C W, the first tenant in tail who attained twenty-one, came into posses- sion of the real estates : — Held, that on the death of S under age and without issue inheritable, his interest in the chattels was divested by the proviso in the will, and there being no gift over, they fell into the residuary bequest. The Countess Dowager of Harrmgton v. The Earl of Hafrington, 37 Law J. Eep. (n.s.) Chanc. 593 ; Law Eep. 3 Chauo. 564. This case on appeal to the House of Lords, 40 Law J. Kep. (n.s.) Chanc. 716 ; Law Rep. 5 E. & I. App. 87, [And see Will, Constbuction (R) 6 — 9.] HIGHWAY. (A) Repair. (a) lAahility to repair. {I) By prescription. (2) In general. (b) Jurisdiction of Justices to order indict- ment for non-repair. (B) Dedication. (a) Evidence as agairist reversioner. (S) Limited dedication. (C) Formation of Highway Distiuots. (D) DrvEETiNQ and Stopping up. (E) Nuisances and Obsteuctions. (a) AniTnals straying on highway. (A) Fire on side of highway. (c) Driving on footpath. (d) Evidence of obstruction. (e) Power of Incloswre Commissioners. (F) Highways within a Town : What ake. (G) Costs. (A) Repaib. (a) Liability to repair. (1) By prescription. 1. — To an indictment against the inhabitants of the parish of A for the non-repair of a highway within the parish, the inhabitants pleaded that the inhabitants of the parish of G from time im- memorial, and in consideration of levying and receivmg certain rates in respect of certain lands in the parish of A adjacent to the highway, had repaired and ought to repair the highway so often as there should be occasion. Replication, that the said agreement in the plea mentioned was duly determined by notice in that behalf : — HeM, on demurrer to the replication, that the plea was bad, since the alleged consideration was insufficient to support the liability of the parish of G, because it could not be enforced, and because it could not from its nature be immemorial, and the repairs must have been done by the parish of G by virtue of some arrangement between the two parishes, which might be, and had been, put an end to. The Queen, on the prosecution of the Melton Mow- bray District Highway Board, v. The Inhabitants of the Parish of Ashby Folville, 35 Law J. Rep. (n.s.) M. C. 154 ; 7 Best & S. 277 ; Law Rep. 1 Q. B. 213. Semble — That in point of law, a parish cannot be liable by prescription to repair a highway situate in another parish.' Ibid, (2) In general. 2,— Under the 11 & 12 Vict. c. 63, Public Health Act, 1848, no action lies against a local board for the non-repair of a highway. Gibson V. The Mayor, etc., of Preston, 39 Law J. Rep. (n.s.) Q. B. 131; 10 Best & S. 942 ; Law Rep. 6 Q. B. 218. 3. — A public bridge, repairable by immemorial custom by the inhabitants of a hundred, is not a highway within the meaning of the term highway in 5 & 6 Will. 4. c. 50, s. 5, the Highway Act, 1835, and is not repairable, under that Act, by 278 HIGHWAY (A). the parish in which it is situated. The Queen v. The Inhabitants of the Upper Half Hundred of Chart and Longbridge, 39 Law J. Kep. (n.s.) M. C. 107 ; Law Eep. 1 C. C. K. 237. By the General Highway Act, 5 & 6 Will. 4. e. 50, a. 5, it is enacted, inter alia, " that the word ' highways ' shall be understood to mean all roads, bridges (not being county bridges), carriage ways, &c." : — Held, that a bridge of the above descrip-i tion was a county bridge, and repairable by the hundred, within the exception of county bridges. Ibid. Turnpike trusts. [See Turnpike, 10.] Sepair in Metropolitan Districts. [See Mktbopolitan Manaoement Acts, 5.] (4) Jurisdiction of Justices to order indictment for non-repair. 4.— Under sect. 19 of the 25 & 26 Viet. c. 61, —which enacts that when on the hearing of a sum- mons under sect. 18, respecting the repair of any highway, " the liability to repair is denied" by the waywarden on behalf of his parish, the Justices shall direct a bill of indictment to be preferred, at the next assizes or Quarter Sessions, against the inhabitants of the parish for the non-repair, — the power to direct an indictment to be preferred does not arise when the liability to repair is denied on the ground alone that the road is not a highway, and the liability is admitted if the road be in fact a highway, and the denial of the road being a highway is made bon& fide. In order to give the Justices such a power, the liability must be denied on some ground other than that the road is not a highway, such as that some one else is bound to repair. The expression in sect. 19, "when the liability to repair is denied," is to bear the same construc- tion as the expression, " if the duty or obligation of such repairs is denied," in sect. 95, of 5 & 6 Will. 4. c. 50. The Queen, on the prosecution of Carter, v. Farrer and Garland, Justices, ^c. of 'the County of Dorset, 35 Law J. Bep. (n.s.) M. C. 210 ; 7 Beat'& S. 654 ; Law Eep. 1 Q. B. 558. Semble— That sections 94 and 95, of 5 & 6 Will. 4. c. 60, and sections 17, 18, and 19, of 25 & 28 Vict. c. 61, apply only to admitted highways. To a mandamus directing Justices to hear evi- dence upon and determine summonses issued under sect. 18 of 25 & 26 Vict. c. 61, or to shew cause why they should not, under sect. 19, direct a bill of indictment to be preferred against a parish for the non-repair of a highway, the Justices returned, that on the hearing of the summonses the parish admitted that the road was out of repair, and that they were liable to repair if the road was a high- way, but denied that the road was a highway, such denial being made bonA fide : — Held, on demurrer to the return, that the return was a good answer to the mandamus, since the power of the Justices to direct an indictment to be preferred only arises where the liability to repair is denied ; and here the liability was not denied within the meaning of the section. Ibid. (B) Dedicatiok. (o) Evidence as against reversioner. 6. From evidence of acts of user of a footway by the public extending over the whole time of living memory, during which time, however, the land over which the way had passed had been under lease, a jury may presume against the reversioner a dedication of the way by his ances- tors to the public at a period .anterior to the land having first been leased. Winterbottom v. The Karl of Derby, 36 Law J. Eep. (n.s.) Ex. 194 ; Law Eep. 2 Ex. 316. (A) Limited dedication. Q, — ThB appellant was convicted under 5 & 6 Will. 4. c. 50, sect. 72, for destroying and injuring the surface of a highway, by ploughing it up. It appeared that a footway ran through a field of which the defendant was occupier. There was no evidence of the existence of this footpath before living memory, and no evidence of any limited dedication of the way to the public. It was proved, however, that within living memory it had been used as a footway by the public, and that the appellant and the previous occupier had, during all this time, ploughed it up in the manner now com- plained of :— Held, that the conviction was wrong, for the proper inference from the facts was, that the exercise of the right of ploughing up the path had been coeval with the user of the wa,y by the public. The way must therefore be considered as having been dedicated and accepted by the public, subject to the inconvenience of being occasionally ploughed up, and there was no legal objection to such a limited dedication of the way. Mercer v. Woodqate, 39 Law J. Eep. (n.s.) M. C. 21 ; 10 Best & S. 833 ; Law Eep. 6 Q,. B. 26. (C) Formation of Highway Districts. 7.— By the 54 Geo. 3. c. 91, s. 1, overseers of the poor are to be appointed on the 25th of March, or within fourteen days after, and by the 6 & 6 Will. 4. c. 50, s. 6, the same date is fixed for the appointment of surveyors of highways. By the 25 & 26 Vict. c. 61, s. 10, waywardens are to be elected at the time when surveyors would have been chosen before the Act. By the 27 & 28 Vict. <,. 101, s. 10, the first meeting of the highway board is to be appointed for a time not more than seven days after the time fixed by law for the election of waywardens: — Held, that after a provisional order directing the election of way- wardens, a final order fixing the first meeting of the highway board for the district for the first Thursday after the 25th of March was good, and did not unduly curtail the time for the election of waywardens. The Queen v. The Justices of the parts of Lindsey, 35 Law J. Eep. (n.s.)M. C. 90 ; Law Eep. 1 Q. S. 68. Exemption from highway rate. [See Rate, 26.] (D) Diverting anh Stopping up. 8. — By a certificate of two Justices, obtained for the purpose of diverting and stopping up a HIGHWAY (D), (E). 279 highway, &e., and made tinder the 85th section of the 5 & 6 Will. 4. c. 50, it was stated that the pro- posed new highway " will be more commodious to the public, by reason," &c., and that the old high- way, called, &c., " will, if and so soon as such diversion or substitution be effected, become and be wholly unnecessary and useless, by reason," &c. The certificate also shewed that the way to be substituted for the old one was not an entirely new way, but would consist of two existing ways which were to be widened and enlarged so as to make them more commodious and convenient : — Held, overruling The Queen v. Shiks, 1 Q. B. Eep. 919; 10 Law J. Eep. (n.s.) M. C. 157, that the certificate was not bad by reason of its not stating that the new highway would be nearer as well as more commodiotis. Held, also, that it was not bad by reason of its not stating that the new highway is more commodious, and that it was sufficient to state that it would be, &c. Held, also, overruling Welch v. Nash, 8 East, 394, that it was not necessary that the highway to be substituted should be entirely new. The Queen V. Phillips and another, 36 Law J. Eep. (n.s.) M. C. 217; 7 Best & S. 593; Law Eep. 1 Q. B. 648. 9.— By 5 & 6 Will. 4, c. 50, s. 85, Justices are empowered to view highways which it is proposed to divert or stop up, and to certify that they are unnecessary, upon proof that a notice in a pre- scribed form has been affixed at the place and by the side of each end of the highway from which the same is proposed to be diverted or stopped up. By 27 & 28 Vict. c. 101, s. 21, the proceedings under the former Act may be adopted for the purpose of certifying that a highway is unnecessary for public use. Three roads, each in a separate parish, formed one system, and consisted of three limbs, running from three turnpike roads at the points A, B, and 07 and meeting at a central point D, so as to form a figure like that of the capital letter Y. The Justices, purporting to act under 27 & 28 Vict. c. 101, e. 21, made three certificates as to each of the three highways. The roads referred to in the certificates were described, one as running from D to A, another as running from D to B, and a third as running from D to C. The certi- ficates also recited that the requisite notices had been given. It appeared that a notice was placed at the points A, B, and C, but not at the central point D. The certificates having been affirmed on appeal to the Sessions : — Held, that a certiorari must issue for the purpose of quashing the orders of Sessions, as each of the three orders related to a separate highway, one end of which w^ at D, so that the prescribed notices had not been given, and the certificate was invalid. The Queen v. Justices of Surrey, 39 Law J. Eep. (n.s.) M. C. 145; Law Eep. 5 Q. B. 466. The applicant for the certiorari resided in the neighbourhood of the highways to which the certi- ficates related :-^Held, that, by reason of his resi- dence, he was in the condition of a person grieved, and entitled to the certiorari as of right. Ibid. 10. — Where a valuer appointed under this Act gives notice that a road from A to B is to be stopped up from and after a particular day, and a person gives notice of appeal against stopping up a specified part of that road, the notice ia good, and he is entitled to have his appeal heard. But quaere, what effect the appeal would have against stopping up the whole road. Eegina v. Justices of Huntinqdonshire, Law Eep. 1 .Q. B. 36. 11.— By the 27 & 28 Vict. c. 101, s. 21, when any highway board consider any highway un- necessary for public use, they may direct the district surveyor to apply to two Justices to view the same, and thereupon " the like proceedings shall be had as when application is made under the Highway Act, 1835, to procure the stopping up of any highway, save only that the order to ba made thereupon, instead of directing the high- way to be stopped up, shall direct that the same shall cease to be a highway which the parish is liable to repair," &c, That Act, by section 2, is to 'be construed as one with the High- way Act, 1862, which by section 42 is to be con- strued as one with the 5 & 6 Will. 4. t. 50. By s. 86 of 5 & 6 Will. 4. c. 50, the proceedings for stopping up and diverting a highway are provided for, and by section 88 an appeal to Quarter Ses- sions is given to any person who would be injured or aggrieved by an order to stop any unnecessary highway under that Act: — Held, that an appeal to Quarter Sessions lay under the 27 & 28 Vict. c. 101. s. 21, against an order directing that a high- way should cease to be a highway which the parish is liable to repair. Begina v. Justices of Surrey, 39 Law J. Eep. (n.s.) M. C. 49 ; Law Eep. 5 Q. B. 87. (E) Nuisances and Obstructions. (a) Animals straying on highway. 12.— By section 26 of the Highway Act, 1864, if any horse, mare or sheep is at any time found lying about a highway, the owner shall be liable to a penalty : — Held, that this liability may be in- curred if sheep are allowed to lie about a highway, although they were under the control of a keeper at the time they were so found lying about. Lawrence v. King, 37 Law J. Eep. (n.s.) M. 0. 78 ; 9 Best & S. 325 ; Law Eep. 3 Q. B. 345. 13.— By the Highway Act, 1864, 27 & 28 Vict. c. 101, s. 25, if any horse, mare, gelding, bull, ox, cow, heifer, &c. is at any t ime found straying on or lying about any highw ay, or across any part thereof, or by the sides thereof, the owner ot owners are made liable to certain penalties, with a proviso that nothing in the Act siiall be deemed to take away any right of pasturage which may exist on the sides of any highway. Cattle belong- ing to the appellant, who was occupier of the land on both sides and adjoinirig a highway, were found straying upon the highway. It appeared that the appellant was entitled to the pasturage on both sides of the highway. The cattle had been placed under the care of a boy, and when they were found he was in a field about forty yards from the nearest of the bullocks and separated 280 HIGHWAYS (E), (G)-HYPOTHECATION. from it by a hedge ; — Held, that there was evidence upon which the appellant might be convicted under the section. Golding v. Stocking, Freeston 38 Law J. Eep. (n.s.) M. C. 122; 10 Best & S. 351 ; Law Eep. 4 Q. B. 516. 14. — A, having a right of pasturage on the Bides of a highway not passing over any common or waste, or uninclosed ground, sent his cattle to depasture there with a keeper, who permitted them to stray on the highway: — Held, an offence with- in the Highway Act, 1864, 27 & 28 Vict. c. 101, B. 26, for which A was answerable. Freeston v. Casswell, 10 Best & S. 348, 351. [And see Tubnpike, 13.] (6) Fire on side of highway. 15. — Making a fire within fifty feet of the centre of a public carriage-way is not an offence within the 72nd section of the General Highway Act, 5 & 6 Will. 4. e. 60, unless it be done to the injury of the highway, or to the injury, interruption or per- sonal danger of persons travelling thereon. Stin- son V. Browning, 36 Law J. Eep. (n.s.) M.C. 152 ; H. & E. 263 ; Law Eep. 1 C. P.' 321. (c) Driving on footpath. 16. — Under the 72nd section of the General Highway Act, " if any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers ; or shall wilfully lead or drive any horse, ass, sheep, mule, swine or cattle, or carriage of any description, or any truck or sledge upon any such footpath or causeway," he shall for every such offence forfeit and pay any sum not ex- ceeding 40s. over and above the damages occasioned thereby : — Held, that this enactment does not apply to the case of a footpath simpliciter, but only to such a footpath as is by the side of a road made, &c. 2'he Queen v. Pratt, 37 Law J. Eep. (n.s.) M.C. 23 ; Law Eep. 3 Q. B. 64. (d) Evidence of obstruction, 17. — When a public way is obstructed, an in- .dividual cannot bring an action against the ob- structor unless he has sustained some special damage apart from that sustained by the rest of the public ; and his being obliged by the obstruc- tion to turn back and proceed by a less direct route, or to remove the obstruction, and being delayed and put to expense in doing so, will not be suffi- cient. Winterbottom v. The Earl of Derby, 36 Law J. Eep. (n.s.) Ex. 194 ; Law Eep. 2 Ex. 316. [And see Vestey, 2], (e) Power of Inclosure Commissioners, 18. — In 1811, a public road, 50 feet wide, was sot out by Inclosure Commissioners ; about 25 feet only weri ■ used as via trita ; fir-trees had grown on the uninclosed sides. In 1868, the Highway Commissioners began to cut them down. A bill by adjoining owner to restrain them was dismissed with costs. Turner v. Bingwood Highway Board, Law Eep. 9 Eq. 418. (F) Highways within a Tows : ymi.i ahb. 19. — Statute 1 & 2 Vict. e. 2, for better paving the town of M, see. 23, required the Commissioners appointed by virtue of the Act, to repair, &c., all or any of the streets, &c. then paved or therein- after to be paved, cleaiised, and lighted under the provisions of the Act; sect. 35 empowered the Commissioners to light streets " within the town," although they were not public. The limits of the Act were not defined. In pursuance of the High- way Act, 1862, 25 & 26 Vict. c. 61, s. 7, the county of K was divided into highway districts, one of which included that part of the parish of M, " not within the tovm of M." Since 1862, certain highways in the parish of M had been lighted by the Commissioners ; before they were so lighted they were not within the town. Upon complaint, before Justices against the Highway District Board, for not repairing them : — Held, 1 . That the word " town " in the local Act meant the town of M not as it existed at the time of the passing of the Act, but as it extended from time to time. 2. That a highway was within the town of M if there was a continuous series of houses in it so contiguous as to form a congregation of human habitations. 3. That the fact of lighting the highways was not conclusive as to their being in the town of M. Milton, (f-c. V. T%e Faversham District 'Highway Board, 10 Best & S. 548 note. (G) Costs. 20. — Where an indictment for the non-repair of a highway has been preferred by order of Jus- tices under 6 & 6 Will. 4. c. 60, s. 95, and has been removed by certiorari into this Court at the instance of the defendants, the Judge who tries the indictment has no power, under that section, to direct that the costs of the prosecution shall be paid out of the rate. The costs in such a case are provided for by the 5 W. & M. u. 11. Tlie Queen v. TTie Inhabitants of Ipstones, 37 Law J. Eep. (n.s.) M. C. 37 ; 9 Best & S. 106; Law Eep. 3 a. B. 216. The Queen v. Eardisland, 3 El. & B. 960 ; 23 Law J. Eep. (n.s.) M.C. 145, dissented from. HOLDING OVEE. [See Landlord and Tenant (K).] HOPS. [Frauds and abuses in the trade of hops sup- prossed 29 Vict. c. 37.] Hop Grounds: Tithe rentcharge: Extra- ordinary c/utrge. [Sfe Tithe, 2.] HYPOTHECATION. Foreign contract loan negotiated in England. [See Jurisdiction in Equity, 8.] [AndseeMoETSAGE; Shipping (B).] ILLEGITIMACY— INCLOSUEE. 281 • ILLEGITIMACY. [See Bastaedy ; Legitimacy Declaration Act.] Illegitimate taking as persona disignata. [See Wii,!., CoNSTBUCTiON (H) 12 ; Legacy (A) (i).] IMPRISONMENT EOE DEBT. [See Deetoe and Creditor (G).] IMPROVEMENT COMMISSIONERS. Excess of powers. [See Injunction, 34, 35.] Estojppedfrom denying validity of securities for moTiey borrowed. [See Estoppel, 2.] INCLOSUEE. (A) Reservation of Rights or Lord of Manor. (B) Reservation of Herbage. (C) Right of Sporting of Lord of Manor. [8 & 9 Vict. c. 1 14, s. 13, repealed, as regards a portion of Dean Forest, see 29 & 30 Vict. e. 70.] (A) Reservation of Rights of Lord of Manor. 1. — The common and waste lands of a manor were inclosed under the authority of an Act of Parliament, and divided among the lord of the manor and the commoners in certain allotments. The allotments to the commoners were declared to be freehold, but subject to the lord's rights to the mines, minerals, stones, fossils,,royalties, liberties, privileges, powers and authorities thereby reserved to him. An express reservation was then made of the rights and interests of the lord of the manor for the time being, in the following terms ; " Pro- vided always, and be it further enacted, that nothing in this Act contained shall be construed or adjudged to defeat, lessen or prejudice the right, title or interest of the said lord of the said manor for the time being of, in or to the seigniories or royalties, franchises and liberties, incident and belonging to .the said manor, but the said lord of the said manor for the time being shall, at all times for ever hereafter, have, hold, take and -en- joy all rents, fines, suits and services to or at the lord's courts, perquisites and profits of courts, and suits and services to the lord's mill, piscaries, fishing, hunting, hawking and fowling of all beasts and birds considered as game, goods and chattels of felons and fugitives, felons of themselves and put in exigent, deodands, waifs, strays, forfeitures, escheats, and all other _ royalties, liberties, privi- leges, franchises, pre-eminences, jurisdictions and appurtenances whatsoever (except such as are ex- pressly taken away by this Act), in the same and as fuU, ample and beneficial manner, to all intents Digest, 1865-70. and purposes, as they are now held, taken, enjoyed, or have been anciently or heretofore used, exer- cised and enjoyed by the present or any former lord of the said manor, or as he might or could have held, used, exercised, received, taken or en- joyed the same in case this Act had not been made": — Held, reversing the judgment of the Court of Exchequer, 36 Law J. Eep. (n.s.) Ex. 33; Law Eep. 2 Ex. 202, that the exclusive right of sporting over the allotments of the com- moners was reserved to the lord of the manor by the Act. Lord Leconfield v. Dixon and others, 36 Law J. Rep. (n.s.) Ex. 102; Law Rep. 2 Ex. 202. 3.. — The powers conferred by sect. 32 of the General Enclosure Act, 41 Geo. 3.c. 109, upon the Commissioner to be appointed by any local Act to sell lots to pay expenses, and to convey such lands in fee simple free from all common and other rights, are by the 40th and 44th sections restricted and declared to be effectual only so far as they are con- sistent with the powers and provisions of the local Act. Where, therefore, the local Act made a distinc- tion between the soil and tl^f minerals, and the latter were expressly reserved to the lord : — Held, affirming Malins, V. C, 36 Law J. Rep. (n.s.) Chanc. 179, that the Commissioner had no control over, and was not competent to convey the minerals under the lands sold to pay expenses. Where, by the local Act, powers were reserved to the lord, not only to exercise such rights as he had before the Act, but also upon maldng com- pensation to do things which he could not have done before the Act, " in as full and ample a manner as could have been done if the lands had remained open and uninclosed, and this Act had not been passed;" — Held, overruling Malins, V. C, 36 Law J. Eep. (n.s.) Chanc. 763, that these last words did not restrict the rights thereby reserved to the lord to such acts as he might have done before the Act. Semble— There may be a valid claim by custom, or a prescription in a manor, for the lord or his licensees to work mines so as to destroy the tenants' surface ; the ruling in Hilton v. Lord Granville, 5 Q. B. 701 ; 13 Law J. Eep. (n.s.) Q. B. 193, to the effect that such a custom would be void, as in- consistent with the notion of the original grant questioned. The dictum of Lord Deuman in that case, that if the grant could be produced, reserving the right to the lord to deprive the grantee of the thing granted, the clause in the grant must be rejected as inconsistent and absurd, has been already over- ruled in Eowbotham v. Wilson, 8 H. L. Cas. 348 ; 30 Law J. Eep. (n.s.) Q. B. 49. Wakefield v. The Duke of Buccleuch and another ; and The Duke of BucdeiKh and another ■v. Wakefield, 39 Law J. Rep. (n.s.) Chanc. 441 ; Law Eep. 4 E. & I. App. 377. (B) Eeservation of Herbage. 4. — An Inclosure Act, 31 Geo. 3. c. Ixi, directed the Commissioners to set out land for getting stone, &c. for repairing the parish roads, which 00 282 INOLOSUEE— INDICTMENT (A). should be vested in the surveyors of highways and their successors, and enacted that all the grass and herbage growing, arising, and renewing on the roads and on the land to be set out and ap- pointed for getting stone, &c., should belong to und be the property of the persons to whom the Commissioners should allot the same, exclusive of all other persons whomsoever, or should be ap- plied to som^e parochial or other use or purpose. The Commissioners in pursuance of the Act, awarded, set out, allotted, and appointed to the surveyors of highways aiid their successors an allotment. No. 158, containing one acre, save and except the grass and herbage thereof, upon trust and for the purpose of getting stone, &c. for re- pairing the roads, and they awarded, set out, al- lowed, and assigned to P and his heirs contiguous allotments, No. 157 and No. 159, together with the grass and herbage of No. 158 ; they also or- dered and directed that the grass and herbage growing, arising, and renewing on the public roads and ways should he let from year to year, and the moneys arising thereby be applied to the repair of the highways, &e. The surveyors obtained gravel for the highways from No. 158 down to the year 1813, when they discontinued to do so, and purchased gravel from pits in the neighbouring parishes, and thenceforth, until 1858, they never entered upon or exercised in No. 158 any right under the award. In 1813 P built a cottage and barn, and other buildings on part of No. 168, and inclosed part of it with a fence ; he also cut off a corner of it, which had ever since formed part of the adjoining arable field, and cleared out the old pit, and con- verted it into a pond. Held : — ■ 1. Per Cockburn, 0. J., and semble, per Black- burn, J., that the award of the Commissioners did not vest in P any right to the soil, but only the right of taking the grass upon its surface. 2. That the surveyors of highways were within stat. 3 & 4 Will. 4. c. 27, by reason of the inter- pretation clause, sect. 1. 3. That there had been a discontinuance of pos- session by the surveyors, and an actual possession by P for twenty years, and therefore their right was barred by stat. 3 & 4 Will. 4. c. 27, e. 23. 4. Per Blackburn, J. — If P had the exclusive right to the surface, the acts which he did were act's of ownership in the subsoil, and evidence from which it might be concluded that he took possession of the whole acres. Thew v. Wingate, 10 Best &S. 714. (C) Eight of Spobting of Lokd of Manoe. 6.— An inclosure act, after directing the Com- missioners to award a certain portion of the waste lands, in cattle gates to the lord of the manor, in " full satisfaction for all his rights as such lord, in- stead of directing allotments to be made to each person interested, directed it to be enjoyed by them in a particular manner, namely, by cattle gates and stinted pasture. It was held, on the whole construction of the Act, that the right to the soil, and therefore the exclusive right of sporting over the stinted pasture was therefore taken from the lord of the manor. Wray, Law Eep. 1 C. P. 490. Bobinson v. INCLOSUEE COMMISSIONEES. Jurisdwtion to justify award. [See Aebiteation (D) 5.] Costs of issue. [See Costs at Law, 30.] Fower of Commissioners : repairmg of sewers. [See Sewees, 2.] INDICTMENT. (A) Poem and eeouisites. (B) How baeeed. (C) Finding of the Juey. (D) Indictable Offences. (E) Indictment foe Muedee : Dischaegb of Juey. (A) FOEM AND EEQDISITES. 1. — An indictment against a person for refusing to aid and assist a constable in the execution of his duty, and prevent an assault made upon him by prisoners in his , custody on a charge of felony witli intent to resist their lawful apprehension is sufficient without stating how the apprehension became lawful ; and if it state a refusal to assist, without the further allegation that he did not, in fact, aid and assist. The Queen v. Sherlock, 35 Law J. Eep. (n.s.) M. C. 92 ; Law Eep. 1 C. C. E. 20. 2. — Perjury was assigned to have been com- mitted on the hearing of a complaint for trespass in pursuit of game alleged to have been committed in a close in the parish of T, in the borough of T, before certain Justices assigned to keep the peace, in and for, and acting in and for, the borough of T in the said county. " The complaint alleged that the defendant was in the close for the destroying game, but omitted to allege that it was for the purpose of destroying game there : — Held, that the amendment was properly made as a variance in the description of a person described in the in- dictment under 14 & 15 Vict. e. 100, s. 1, and that the complaint was sufiicient in form to give the Justices jurisdiction to inquire into it, so as to make false evidence wilfully given on the hearing the subject of an assignment of perjury. Tlie Queen v. Western, 37 Law J. Eep. (n.s.) M.C. 81 ; Law Eep. 1 C. C. E. 122. Amendment of indictment. [See Labceny, 9.] (B) How BAEEED. 3. — A previous summary conviction for assault before Justices under the 24 & 25 Vict, c 100, s. 42, is not a bar to a subsequent indictment for manslaughter upon the death of the man assaulted consequent upon the same assault — Kelly, C.B. dissentiente. The Queen v. Morris, 36 Law J. Eep. (N.s.) M. C. 84 ; Law Eep. 1 C. C. E. 90. INDICTMENT (C), , (E)— INFANT (A), (B). 283 (C) Finding of the Jury. 4. — An indictment contained a count for unlaw- fully wounding, and another count for unlawfally inflicting grievous bodily harm. The jury re- turned a verdict of guilty of an assault : — Held, a lawful verdict which the Judge was bound to re- ceive, and a conviction upon the above indiotmejit was affirmed. The Queen v. Taylor, 38 Law J. Eep. (n.s,) M. C. 106 ; Law Eep. 1 C. C. E. 194. (D) Indictable Offences. 5. — An indictment against Hand W charged H with rape, and W with aiding and abetting the said rape. They were found not guilty of the felony, but the jury found H guilty of attempting to com- mit the rape charged, and W of aiding and abetting H in the attempt : — Held, that H was rightly con- victed of misdemeanor. The Queen v. Wyatt, 39 Law J. Eep. (n.s.) M. C. 83. [And see Fokoert; Nuisance, 17; Justice of THE Peace, 3 ; Eeceiving Stolen Goods ; Peejubt ; Embezzlement ; Assault.] (E) Indictment foe Murder; Discharge of Jury. 6. — The record shewed that on the trial of W and H, who were jointly indicted, for murder, the jury, after five hours' deliberation, at five minutes before midnight on Saturday night were discharged by the Judge without giving a verdict, and with- out the consent of the prisoner or of the prosecu- tion, on the grounds that they had not agreed, and declared they could not agree, upon any verdict, and that all the rest of the assize business was finished, and the Lord's Day was immediately at hand, and that he, the Judge, was required to be in another county on Monday, in the execution of the commission, and that, for the above reasons, the Judge " decided that it was necessary to dis- charge the jury." W was afterwards given in- charge to another jury and tried, alone, upon the same indictment, when a verdict of guilty was re- turned, and judgment of death recorded; H being admitted as a witness against her without having been either acquitted or convicted on the indict- ment;- Held, on a writ of error, that the judgment below must be afBrmed ; that the second trial was legal, since the discharge of the jury on the first trial was no bar to the second ; that the discharge of the jury was a matter for the discretion of the presiding Judge alone, and could not be reviewed in a Court of Error ; that, even if that discretion had been improperly exercised, it would have afforded no bar to a second trial ; and (per Black- bum, J.), that in all cases where, on an indict- ment, there has been no verdict fcmnd, or the ver- dict has been imperfect, the proper course is to award a venire de novo, and try the accused again, — and, semble, that this is applicable to indict- ments for capital felonies and for misdemeanors alike. Held, also, that the question of the admissibility of the accomplice as a witness could not be raised on a writ of error ; but, semble, that if it could H was admissible, although the indictment with re- gard to her had not been disposed of. Quaere — Whether a verdict taken and recorded on Sunday would be valid. Quaere, also — Whether a Judge has the power to order refreshment to a jury after they have re- tired to consider their verdict. Charlotte Windsor V. The Queen, 35 Law J. Eep. (n.s.) Q.B. 110. INFANT. (A) Maintenance. (B) Eeligious Education. (C) EECfiGNiTiON of Debt. (D) Necessaries. (E) Jurisdiction of Court of Chancery in respect to (a) Foreign subjects, {b) Ward of Court : how constituted. (F) Powers of G-uaedian. [See Legitimacy Declaration Act (B), (A).] (A) Maintenance. 1. — A testator gave to his infant son a legacy of 6,eOOZ., and a share of residue. Both gifts were contingent on the child attaining twenty-one, and a provision ceasing at fifteen was made for his njaintenance : — Held, fii?st| following Chambers v. Goldmn, 1 1 Ves. 1, that a limited allowance for maintenance does not exclude an -implied gift of interest on a contingent legacy during the period for which main- tenance is not provided. Held, secondly, that as the benefit of the infant must determine out of which fund he should be maintained, interest was payable on the 6,000^. from the time the infant attained fifteen. Kavie V. Welfitt, 3 Sim. 533, not followed. Martin V. Martin, 36 Law J. Eep.fN.s.) Chanc. 281 ; Law Eep. 1 Ex. 369. (B) Eeligious Education, 2. — The general rule is that an infant is to be brought up in the religion of the father. -The mother of two infants, aged fifteen and eleven years respectively, became a member of the sectcilled "Plymouth Brethren," and endeavoured to bring the infants up in the tenets of that sect. The father of the children was at tlie time of his death a, beneficed clergyman of the Established Church. Shortly before his death he professed some doubts, but died without any public renun- ciation of the doctrines of that church. By his will he appointed his widow and a clergyman guardians of his children. On the application of her co-guardian the Court restrained the mother from educating the children in the doctrines and from taking them to the chapel of the " Plymouth Brethren." The Court refused to examine the infants personally. In re Newbery, Infants, 35 Law J. Eep. (n.s.) Chane. 330 ; Law Eep. 1 Chanc. 263. oo 2 284 INFANT— INJUNCTION. (C) Eecoonition of Debt. 3. — To a declaration for goods sold and deli- vered, the defendant pleaded infancy, and the plaintiff replied p, ratification of the debt after majority ; in support of the replication a copy of the items of the account was put in evidence, at the foot of which the defendant, after he came of age, had written, " Particulars of account to end of year 1867, amounting to 162£. lis. 6d., I certify to be correct and satisfactory," with the addition of his signature : — Held, not a sufficient recognition of the debt to satisfy the 9 Geo. 4. c. 12, s. 5 ; and that the construction of the document was for the Court, and not for the jury. Eowe v. Hopwood, 38 Law J. Eep. (n.s.) Q. B. 1 ; 9 Best & S. 881 ; Law Rep. 4 a. B 1. Allotment or transfer of shares to ; ratifica- tion hy. [See Company (E) 27, 28, 61-70.] Ward of Court. [Sfee Practice in Eouitt (VV).] (D) Necessaries. 4. — An infant (the son of a baronet, and having an income of 500/. a year, with the prospect of 20,000?. on attaining his majority) bought on credit a pair of solitaires, or shirt sleeve studs, composed of crystals adorned with diamonds and rubies, and a silver goblet for presentation to a friend, at whose house he had been staying. No evidence was given of anything peculiar in the defendant's station rendering it exceptionally ne- cessary for him to have such articles. The jury, in answer to the qiiestion put to them, found that the articles were necessaries, and suitable to the defendant's station and degree.: — Held, reversing the judgment of the Court of Exchequer, 37 Law J. Eep. (n.s.) Ex. 48; Law Eep. 3 Ex. 90, that, as the onus was on the plaintiff, and he gave no evidence tx) shew that the articles were necessaries, the question ought not to have been left to the jury. The question in all such cases is one of mixed law and fact, the preliminary question being (as in all other cases) whether there is any evidence on which the jury could properly find for the party on whom the onus of proof lies. The Judge (who must be supposed to know as well as a jury can know without evidence, what is the usual and normal state of things, and whetier any particular article is of such a description that it may be a necessary under such usual state of things) must determine, first, whether the case is such as to cast on the plaintiff the onus of proving that the articles in question are necessaries, and then whether there is any sufficient evidence for the jury to satisfy that onus ; and if there is not, he ought to direct a nonsuit. Syder v. Wombwell, 38 Law J. Eep. (n.s.) Ex. 8 ; Law Eep. 4 Ex. 32. (E) Jurisdiction op Court of Chancery in RESPECT TO. (a) Foreign subjects. 5. — The Court has jurisdiction to appoint guar- dians to infants, foreign subjects, within the jurisdiction, and, if necessary, to interfere on their behalf against their parents or guardians ap- pointed by -the Courts of their country ; bnt will not act against the foreign guardian, except on very special grounds, as, for instance, neglect of the children, or danger to their property. Nugent V. Vetsera, 35 Law J. Eep. (n.s.) Chanc. 777 ; -Law Eep. 2 Eq. 704. (A) Ward of Court : how constituted. 6. — An order for the maintenance of an infant out of her property made in chambers, without bill filed, is sufficient to constitute the infant a ward of Court. Ee Graham, an Ijifant, 39 Law J. Eep. (n.s.) Chanc. 724; Law Eep. 10 Eq. 530. (E) Powers of Guardian. 7. — The guardian of an infant shipowner has no power, under the 99th section of the Merchant Shipping Act, 17 & 18 Vict. c. 104, to mortgage or sell a ship of which such infant is the owner. Michael v. Fripp, 38 Law J. E«p. (n.s.) Chanc. 29 ; Law Eep. 7 Eq. 95. INEEEIOE COUET. [See County Court.] INJUNCTION. (A) Speciai, Injunction. («) Jwrisdiciion of Court ofEguity to grant. - (1) To restrain application to Parlia- ment. (2) In the case of statutable offences. (3) Where the plaintiff has pleaded equitably at Law. (4) Proceedings under statutes, (b) When granted in particular cases. (1) Ancient lights. (i) Amount and nature of obstruc- tion. (ii) Alteration qf servient tenement : increase qflightfrom elsewhere. (iii) Alteration of dominant tene- ment. {iv) Evidence of user : Prescription Act, 2^3 Wm.i.c. 71. <2) Air. (3) Nuisance. (4) Bestrictioe covenant: breach of. (i) As against lessees or tenants without notice. (il) Covenant not to erect certain buildings. (iii) Covenant }wi to sell beer. (iv) Covenant not to carry on trade. (5) Trade-mar-k. (6) Trespass. (7) Publication of injurious document. (8) Against public bodies. (i) Exceeding statutory powers. (ii) In general, (9) In other eases. INJUNCTION (A). 285 (B) To EESTHATN SciT IN THE DiVOHCE CoTJET. (C) To EESTBAiN Foreign Suit. (D) Damages jn Court oi' Equity. (E) Practice. (a) Mandatory Injunction. (b) Injunction against trespass: form of decree. • (c) Interlocutory application. (1) Delay. (2) To stay action at Law. (d) Interim Injunction. (A) SpECiAx Injunction. (a) Jurisdiction of Court of Equity to grant. (1) To restrain application to Parliament. 1. — The Court has undoubted jurisdiction to restrain by injunction an application to Parliament, but it is extremely difBcult to conceive any case in which it would be proper to exorcise that jurisdic- tion. ' A railway company, in consideration of a land- owner withdrawing his opposition, agreed to pur- chase his land at a stipulated price, and the agree- ment was confirmed and embodied in an Act of Parliament. The company being afterwards de- sirous of abandoning their line, gave notice to the landowner of their intention to apply to Parliament for an Act repealing the section of the previous Act which confirmed the agreement. The( Court refused, at the instigation of the landowner, to interfere by injunction to restrain the application. Steele v. The North Metropolitan EaUuiay Company, 36 Law J. Eep. (n.s.) Chanc. 540; Law Bep. 2 Chane. 237. 2. — Though the Court of Chancery has power to restrain an improper application to Parliament for a private Act, there are few if any cases in which it will'do so. In re London, Chatham and Dover Railway Arrangement Act, ex parte Hartridge and Allender, Law Eep. 5 Chanc. 671. (2) In the case of statutable offences. 3. — Though the Court of Chancery has no juris- diction to prevent the commission of acts which are merely criminal or illegal, yet its function is to protect property ; and therefore it will, restrain acts which are of a criminal nature, if they are also of such a nature as to injuriously affect rights of property. Certain members of a Trades' Union Aisociation, employed at a spinning company's mill, took offence at a reduction of their wages and left their masters' service. The association then posted in the district, and advertised in the local papers a placard or notice, which was in substance a warning to all workmen not to seek or renew their work at the mill until the dispute was settled. The company_ filed a bill to restrain the printing and publishing of the notices, charging that they were part of a scheme to prevent persons, by threats and intimidation, from hiring themselves to the plaintiffs, and that persons had, in fact, been so intimidated ; that the plaintiff's business was materially injured thereby, the value of their good- will depreciated, and the corpus of their property irreparably damaged. Upon demurrer for want of equity :— Held, that the acts of intimidation com- plained of, though punishable as a statutable offence under the Masters and Workmen's Acts, were yet within the jurisdiction of equity, as tending to the destruction of property, and that the bill would lie. The Springhead Spinning Company, Limited, v. EHey, 37 Law J. Eep. (n.s.) Chanc. 889 ; Law Eep. 6 Eq. 651. (3) Where plaintiff has pleaded equitably at Law. 4. — Prima facie, a defendant at law, by plead- ing an equitable plea, thereby makes his election of the tribunal in which his case is to be tried ; but if the case be such that the Court of law cannot give full relief, then his having pleaded an equitable plea at law is no law to his coming into equity. To an action by B against W for damages for the obstruction of his light and air by the height- ening of a party-wall between his premi.ses and those of W, W pleaded, by way of equitable plea, an alleged agreement on "the part of B to allow the wall to be raised on the terms of his not being called upon by W to contribute to the expense, according to the Metropolitan Building Act, under which notice of the contemplated alteration had been given, and of his having a better skylight put up for him by "W". On bill filed by "W for specific performance of the alleged agreement, and motion made to restrain the action : — Held, that inasmuch as this was a case in which a Court of law could not give relief in respect of the agreement, the equitable plea did not preclude W from coming into equity; and that W was entitled to the injunction upon certain terms. Waterlow v. Bacon, 35 Law J. Eep. (n.s.) Chanc. 643 ; Law Eep. 2 Eq. 514. (4) Proceedings under statutes. 5. — The opposers of a prh-ate bill had costs awarded to them under 28 & 29 Vict^c. 27, against the plaintiffs and another company who were joint promoters, and they obtained from the taxing officer of the House a certificate of the amount of such costs, but without giving the plaintiffs any notice of the appointment for taxation, or any opportunity of being heard. The statute provides that the certificate shall be conclusive evidence as well of the amount of the demand as of the title of the party therein named to recover the same from the party therein stated to be liable to the payment thereof ; and that the validity of the -certificate shall not be called in question in any Court ". Held, nevertheless, that a Court of Equity would restrain proceedings against the plaintiffs upon a certificate thus obtained ; and that the other joint promoters were not necessary parties to the suit. The Company of Proprietors of the Swansea Canal Navigation v. The..Great Western Railway, 37 Law J. Eep. (n.s.) Chanc. 238 ; Law Eep. 5 Eq. 444. 286 INJUNCTION (A). (4) When granted in particular cases. (1) Ancient lights, (i) Amount and nattire of obstruction. 6. — In order-to entitle a plaintiff to an injunction against a defendant obstructing the access of light and air to his house, the obstruction complained of must be such an interference with the light and air as to cause matetial annoyance to those who occupy the house ; and the locality of the plaintiff's house, whether in a large town or in the country, is to be trtken into consideration in estimating the amount of obstruction necessary to justify the interference of the Court. In a large city the mere obstruction of the direct rays of the sun for two hours in the day, during the winter months, is not a sufficient ground for granting- an injunc- tion. Clarke v. Clark, 35 Law J. Eep. (n.s.) Chanc. 151 ; Law Rep. J Chanc. 16. 7. — In a court less than 16 feet wide, a hoxise of the height of 30 feet 1 inches was raised to the height of 36 feet 8 inches, and an adjacent yard of inconsiderable depth, which had- a wall 14 feet high in front and a high wall in rear, was built upon to the same height as the house : — Held, on a bill filed by the owners of the house opposite, that the damage from loss of light and air was too small to entitle them to any relief in equity, and the bill was dismissed, without pre- judice to an action at law. Eobson v. Whittingham, 35 Law J. Eep. (N.s.) Chanc. 227; Law Rep. 1 Chanc. 442. 8.— The Court will not restrain the erection of buildings which merely prevent goods displayed ' in a shop from being seen from places whence they ■would previously have been seen. Smith v. Owen, 36 Law J. Rep. (n.s.) Chanc. 317. 9. — Where the access of light to ancient build- ings has been obstructed, the Court will consider not so much the actual quantity of sky area shut out by the defendant's building (which may be trivial), but the relative quantity, having regard to the amount of obstruction caused by pre-existing impediments. The Court will interfere to protect a plaintiff whose persona] comfort and enjoyment, and, a fortiori, one whose trade or business is prejudicially affected by the diminution of light, -and, if the obstruction has been completed since the filing of the bill, will assess damages by way of compensa- tion. Martin v, Headon, 35 Law J. Eep. (n.s.) Chnne. 602 ; Law Rep. 2 Eq. 425. Observations upon Clarke v. Clark, No. 6 supra, and Yates v. Jack, No. 13 infra. (ii) Alteration of servient tenement : increase of light from elsewhere. 10. — Where the owner of a house has acquired a prescriptive right of light coming over his neigh- bour's premises, he is entitled to have his light from that particular quarter. Therefore, in a suit to restrain the obstruction of light and air to the plaintiffs premises by buildings of the defendant, it is no defence to say that although the defendant's buildings in some degree- obstruct the plaintiff's lii^ht, yet, in consequence of alterations to the ad- jacent property, the plaintiff still has from else- where as large a quantity of light as he is pre- scriptively entitled to. If, however, the quantity of additional light were so great that the plaintiff could not, for his reasonable purposes, want the old light as well as the new, and that the obstruction of the old light caused no material injury to the plaintiff: — Semble, that under siich circumstances the Court -rfould not interfere. The Dyirs' Company v. King, 39 Law J. Eep. (n.s.) Chanc. 339 ; Law Eep. 9 Eq. 438. , (iii) Alteration of dominant tenement. 11. — If the owner of ancient lights so alters and enlarges them that they would, in. course of time, impose an additional . servitude on neighbo'uring land, equity will not restrain the owner of the servient tenement from obstructing them. The case of Tapling v. Jones considered. Heath v. Bucknall, 38 Law J. Reji. (n.s.) Chanc. 3^72; Law Rep. 8 Eq. 1. 12. — When a dominant tenement is altered, witliout losing the easement, its owner has the same right of applying to this Court for an injunc- tion as if there were no alteration. The fact that the owner of' an ancient light has himself done acts tending to diminish the light, is no ground for refusing an injimction to restrain another from obstructing the light. Staight v. Burn, 39 Law J. Eep. (n.s.) Chanc. 289 ; Law Eep. 5 Chanc. 163. Observations on Heath v. Bucknall, Law Eep. 8 Eq. 1. (iv) Evidence of user : Prescription Act, 2^3 Will. i.e. 71. 13. — Where an injunction is granted against obstructing the ancient lights of business premises, the Court ought not to make any declaration nar- rowing, or appearing to narrow, the right of the plaintiff to the quantity of light theretofore used by him for the purposes of his business. Semble— That the defendant, to establish his « defence, must shew that, for whatever purpose the plaintiff might wish to employ the light, there would be no material interference with it, for the right conferred or recognised by the statute, 2 & 3 Will. 4. 0. 71, is an absolute and indefeasible right- to the enjoyment of the light, -without reference to the purpose for which it had been used. In a decree for an injunction to restrain the de- fendant from obstructing ancient lights, and from permitting existing obstructions to remain, a pro- viso was inserted enabling the parties to go before the chief clerk for the purpose of ascertaining what existing or proposed works were or would be a breach of the injunction. Yates T.-Jack,'&5 Law J. Rep. (n.s.) Chanc. 539 ; Law Rep. 1 Chanc. 295. 14. — An injunction wiU be granted in equity against obstructing ancient lights in those cases where substantial damages could be recovered at law. The definition of substantial damage in Back v. Stacey, 2 Car. & P. 465, approved of. - Observations on the judgment in Clarke v. Clark, No. 6 supra ; Yates'v. Jack, No. 13 supra; INJUNCTION (A). 287 and Rohson v. Whittingham, No. 7 supra, as to the right to light in populous towns. The case of Martin v. Croble, 1 Campb. 320, re- conciled with that of Yates v. Jack. The Court interferes as to air on the ground of nuisance. The Court will interfere to restrain excavations which threaten danger to adjoining houses, though the actrial resulting damage may be small. The Court will decide a plain case without a trial by jury. Dent v. The Auction Mart Com- pany, Limited ; Pi/grim v. The same; The Mer- cers' Company t. The same, 35 Law J. Eep. (n.s.) Chanc. S55 ; Law Eep. 2 Eq. 238. 15.— The_ right to a particular quantity or quality of light for a special or extraordinary purpose can only be established by proof of twenty years' enjoyment of the special user ; and semble, by shewing knowledge of such special user on the part of the person against whom it is claimed. M & Co., silk merchants, who had for fourteen years occupied and used a room on the west side of a small court for examining samples of silk, sought an injunction against the occupiers of a house on the north side of the same court which had been rebuilt and raised an additional story. The defendant's new building did not intercept the direct rays of the sun ; but the plaintiif' s case was that its eifect was to diminish their light in the early part of the day, and in the afternoon to in- crease it by reflection, and cause a glare, and so to make the light unsteady and uneven, and there- fore unsuitable for the purposes of their trade : — Held, that, assuming the room in question to have been used for any purpose requiring only an or- dinary amount of light, the plaintiffs had not established a case for the interference of the Court ; and that they could establish such a case on the ground of its being used for a special pur- pose requiring only an ordinary kind of light only by shewing enjoyment of their special user of the light for a period of twenty years. Lanfranchi v. Mackenzie, 36 Law J. Eep. (n.s.) Chanc. 518; Law Eep. 4 Eq. 421. (2) Air. 16._ — The plaintiff being owner of two adjoin- ing houses, sold one of tJiem to "the defendants " as the same was then in the occupation of the tenant " thereof. At the time of the sale neither the plaintiff nor the defendants knew, what was afterwards discovered to be the fact, that a room ' on the first floor level, forming and used as part of the house retained by the plaintiff, projected into the house purchased by the defendants. The defendants -pulled down the house pur- chased by them, and erected on its site a building which partly extended over the pro- jecting room of the plaintiffs house, but did not rest upon or otherwise interfere with it. Upon bill filed by the plaintiff to restrain the defendants so building above his projecting room : — Held, that the projecting room did not carry anything above or below it ; that the defendants were the owners of the column of air above the room, and were entitled to build in manner above mentioned. Corbeit v. HUl, 39 Law J. Eep. (n.s.) Chanc. 547 ; ' Law Eep. 9 Eq. 671. (3) Nuisance. 17. — Where a case for granting an injunction has been established in an action at common law, the Court will not stay its hand in granting the injunction because the decision at law is under appeal, unless the Court itself has some doubt of the propriety of the decision at law. The Attor- ney General v. 'The Proprietors of the Bradford Navigation, 36 Law J, Eep. (n.s.) Chanc. 619 ; Law Eep. 2 Eq. 71. Though the public can lose their right to an injunction by laches, this does not apply to the case of a gradually growing nuisance. Ibid; Where a canal company pumped foul water into their canal, so as to make the canal a nuisance, it was held no defence that the foulness was caused by other persons. Observations on Wood v. Sutcliffe, 2 Sim. N.S. 163 ; 21 Law J. Eep. (n.s.) Chanc. 253. Ibid. 18.— The Court of Chancery will, at the suit of a private individual, restrain an adjoining occupier of land from holding public entertainments there- on, consisting of music, fireworks, &o., whereby he causes the collection of disorderly crowds out- side his grounds, which amounts to' a nuisance. Semble — The music and fireworks may also amount to such a nuisance as this Court would restrain. Walker v. Brewiter, 37 Law J. Eep. (n.s.) Chanc. 33 ; Law Eep. 5 Eq. 25. 19. — The authorities decide, that smoke alone, noise alone, or offensive vapours alone, although not injurious to health, may severally constitute a nuisance, which a Court of Equity will restrain, if a Court of Law would give substantial damages. An injunction granted to restrain such a nuisance in the case of a new factory, in a neighbourhood of factories, the increase of the nuisance being considerable. Form of order. 'Crump v. Lambert, Law Eep. 3 Eq. 409. 20. — In a suit between neighbouring manufac- turers, to restrain the defendant from carrying on his maniifactory in such a way as to injure the plaintiff's property by the emission of noxious gases : — Held, that the defendant, whose manufac- tory was lawful in itself, but required the greatest precaution to prevent therefrom the escape of in- jurious gases, would not be restrained from carrying on his manufactory because occasionally, through the occurrence of accidents in the manufactory, the plaintiff was injured, but the Court would only interfere wheite the injury was grave or frequent. Held also, that the plaintiff's rights to have his property protected from injury could not be enlarged by the fact that in his manufactory he used a process of great delicacy. Cooke v. Forbes, 37 Law J. Eep. (n.s.) Chanc." 178 ; Law Eep. 6 Eq. 166. 21. — Plaintiff in equity having recovered judg- ment at law, with substantial damages in an action for nuisance affecting his real estate, is entitled almost as of course to an injunction, to restrain the nuisance until the hearing. Tipping v. St. Helen's Smelting Co., Law Eep. 1 Chanc. 66. 22.— Information and bill to restrain the dis- 28S INJUNCTION (A). charge of sewage into » river, dismissed where the private injury- was too trifling to warrant an injunction, and where the evidence, though estab- lishing some degree of public nuisance, failed to shew injury to health in any case, and where, in consequence of the passing of a local Act of Par- liament, the nuisance proved to exist would be temporary only. The Attorney General v. Gee, Law Rep. 10 £q. 131. 23. (1) — Defendants, a paper-making company, were restrained from discharging refuse from their ■works into a river, on the bill of plaintiiBF, who ■was a millowner four miles down the river. On plaintiff moving to make the injunction perpetual, the Court, on the application of defendants, intro- duced qualifying words, "to the injury and damage of the plaintiff," &e. lAngwood v. Stowmarket Co., Law Rep. 1 Eq. 77, and see next case. 23. (2) — For form of order made in last case, see lAngwood v. Stowmarket Co., 1 Law Rep. Eq. 336. 24. — The Court of Chancery ■will not interfere on the ground of nuisance to restrain a gas com- pany from breaking up the streets to lay their pipes, upon an information at the relation of a competing gas company, although the relators had statutory powers to break up the streets and the defendants had not. The Attorney Generals. Cam- bridge Consumers' Gas Company, 38 Law J. Rep. (n.s.) Chanc. 94 ; Law Rep. 4 Chanc. 71. (4) Restrictive covenant, breach of. (i) As against lessees or tenants without notice. 25. — A restrictive covenant in an assignment of a lease may be enforced by the covenantee against persons taking with constructive notice, though he has no reversion. C being lessee of a house, assigned the lease to W by a deed ■which W covenanted that he, his executors, administrators or assigns, or under- tenants, would not use the premises as a hair- dresser's shop. W under-leased the house, and assigned his reversion. The defendant, having constructive notice of the covenant, purchased the under-lease, and with the licence of the reversioner began to i;se the house as a hairdresser's shop : — Held, that C was entitled to an injunction to re- strain him from so doing. Clements v. Welles, 35 Law J. Rep. (n.s.) Chanc. 265; 35 Beav. 513; Law Rep. 1 Eq. 200. Semble — An ~ under-lessee, or his assign, even without notice is bound by any covenant contained in any assignment of the original lease. Ibid. 26. — The original conveyance in fee of certain land contained a covenant by the purchaser, for himself, his heirs, executors and administrators, with the vendors, their heirs and assigns, that no building to be erected on the premises should be used for the sale of ale, beer, wine or spirits, or any other intoxicating liquor. A house was built on the land, and a tenant from year to year, hold- ing under a purchaser of the fee, but not having actual notice of the covenant, opened a beershop on the premises : — Held, by the Lords Justices, affirming the decision of Wood, V.C., that it was the duty of the tenant to have inquired into the title of the lessor, and as he had not made out a case which relieved him from such obligation, an injunction was granted. The rule that a purchaser is bound to inquire into the title of his vendor applies equally to a tenant from year to year in relation to the title of his lessor. By the Lord Justice Turner. — Semble — a cove- ,nant, not purporting to bind assigns, that buildings to be erected shall not be used for certain specified purposes, relates to the personal use and enjoyment of the land by the grantee, and not to the perma- nent user of the laud itself, and does not run -with the land. Wilson v. Hart, 35 Law J. Rep. (n.s.) Chanc. 569 ; Law Rep. 1 Chanc. 463. 27. — A grantee in fee subject to a, perpetual rentcharge had entered into a restrictive covenant not to carry on a particular trade on the conveyed premises : — Held, that his lessee would be re- strained from carrying on such trade at the suit of the original grantor, although such lessee had no notice that his lessor was bound by such a cove- nant. On the hearing of a cause after replication a plaintiff will not be allowed to read an affidavit filed on behalf of one defendant, against another defendant, without notice. Held, also, that the original grantor having filed a bill to restrain the lessee from breach of a restrictive covenant contained in the original grant, the original grantee was not a necessary party to the suit. Fielden v. Slater, 38 Law J. Eep. (n.s.) Chanc. 379 ; Law Rep. 7 Eq. 523. 28. — The purchaser of a plot of ground agreed that no building erected on it should be used as d, public-house during twelve years and a half The agreement did not appear an the conveyance. The purchaser's assignee built a public house on the spot, and let it to a yearly tenant. The assig- nee had notice, but the tenant had not. On a bill against the assignee and his tenant, an injunc- tion was granted to restrain the assignee from allowing the premises to be used as a public-house ; the injunction to be suspended during the existing yearly tenancy, with an intimation that the assig- nee would be liable to committal unless he deter- mined the tenancy. Carter v. Williams, 39 Law J. Eep. (n.s.) Chanc. . 560 ; Law Eep. 9 Eq. 678. [And see Covenant, 5, 7-9, 10.] (ii) Covenant not to erect certain buildings. 29. — Where a deed of covenant between the o-wner in fee of land laid out for building -on, and the purchasers of lots, contS,ins a restrictive cove- nant on the part of the purchasers as between themselves individually, and each ■with the ven- dor, touching the nature of the buildings to be erected, and the vendor takes no steps to prevent a breach by some of the purchasers, the Court will not enforce the covenant (to prevent a like breach) against another purchaser, although he may have purchased "and executed the deed of covenant after the breach by other purchasers. Peek v. Mat- thews, Law Rep. 3 Eq. 615. 30.— Land was sold, subject to a covenant en- tered into with the plaintiff, a neighbouring land- INJUNCTION (A). 289 owner, that " no buildings, except dwelling houses," to front a certain road, should be built thereon. The purchaser threw the land into his garden, and inclosed it, by erecting thereon, along the side of the road, a wall, 8 ft. 6 in. high, for the greater part, but carried up in one part to the heighth of lift. 6 in., for the purpose of forming the back of vineries and a greenhouse. In a suit for a mandatory injunction, to restrain the wall from continuing : — Held, that the erection of the boundary garden wall 8 ft. 6 in. high was no breach of covenant, but the raising it for the purposes of the vineries was a breach, of covenant. Since, however, no substantial injury was thereby caused to the plaintiff, the Court awarded damages, insteskd of granting an injunction in respect of the breach. Bowes V. Law, 39 Law J. Eep. (n.s.) Chanc. 483 ; LawEep.,9Eq. 636. (5) Trade-mark. 31. — The defendants bought a quantity of thread which had been spooled by W & Co., and bore the name " J W and Co." upon the spools, but which, as they alleged, they believed to have been manufactured by the plaintiff ; and upon a subsequent sale of the thread they positively re- presented to the purchaser that the thread was of the plaintiff's manufacture and described it in the invoice by certain numbers peculiar to the plain- tiffs goods, but at the same time informed the purchaser that their immediate vendors were J W and Co., whose names the spools still bore. The purchaser afterwards substituted on the spools the plaintiffs name and marks for the name J W and Co., and packed and sold the spools so altered in old boxes of a peculiar character, in which the plaintiff's thread had been sold : — Held, that the representation of the defendants was not such as would justify the Court in granting an injunction against them, and the bill was dismissed, without costs. Ainsworth v. Walmesley, 35 Law J. Eep. (n.s.) Chanc. 352; Law Eep. 1 Eq. 518. TJse of surname. [See Colontal Law, 9.] (6) Trespass. 32. — The Court will, by mandatory injunction, restrain a trespass the continuance of which will inflict irreparable damage upon persons in possession. Damage which it is impossible to measure will be deemed irreparable. The London and North- western BaUway Company v. The Lancashire and Yorkshire BaUway Company, 36 Law J. Eep. (n.s.) Chanc. 479 ; Law Eep. 4 Eq. 174. (7) Piiblication of injurious document. 33. — The Court has jurisdiction to restrain the publication of any document tending to the destruction of property, tangible or intangible, money or reputation by which money is acquired, or even in a man's own name. The publication of a notice stating falsely thatthe plaintiff was partner in a bankrupt firm, restrained. Dixon, v.Holden, Law Eep. 7 Eq. 488. Digest, 1865-70. {sy Against puhlic bodies. (i) Exceeding statutory powers. 34. — The Commissioners, under a local Im- provement Act, were empowered to make new sewers, but prohibited from making any new sewer to drain into the river E above a certain point : — Held, that they ought to.be restrained, at the suit of the privat» owners of a weir in and part of the soil of the river below, that point from enlarging and deepening an old sewer running into the river above that point, so as to make it virtually a new sewer. Held, also, that the plaintiff's suit being based upon their statutory rights, was maintainable without making the Attorney General a party thereto, or proving special injury. Holt v. The Mayor, ^c, of Bochdale, 39 Law J. Eep. (n.s.) Chanc. 761 ; Law Eep. 10 Eq. 354. 35. — Improvement Commissioners empowered by a local Act of Parliament to levy rates, and do all acts, matters, and things for promoting the health, comfort, and convenience of the inhabitants within their district, and for that purpose to exer- cise the powers vested in them by their Act, will be restrained from applying the rates to the pro- motion of a bill in Parliament to extend their dis- trict and enlarge their powers. The Attorney Gene- ral, v. The West Hartlepool Improvement Commis- sioners, 39 Law J. Eep. (n.s. ) Chanc. 624 ; Law Eep. 10 Eq. 152. (ii) In general. To restrain payTnent of dividends out of capital. [See Company (C) 72.] Against fivjituating bodies. [See Nuisance.] Seguestratwn against corporate bodies for breach of injunction. [See Public Health Act, 11.] (9) In other cases. To restrain proceedings in arbitration, 36.— "The Court of Chancery will grant an in- junction to restrain proceeding with a reference to arbitration, where, by the conduct of one of the parties, an equity has arisen which interferes with prosecuting the arbitration. On this ground V.C.W. granted an interlocutory injunction ; but on ap- , peal the L, C, admitting that the Court might do so on the above ground, refused the injunction as an interlocutory application, the defendants under- taking not to take any proceedings upon any award without the leave of the Court. Semble, per V. C. "W. — The Court has no jurisdiction to re- strain an arbitrator, on the ground that he has no jurisdiction. Pickering v. Cape Town BaUway Co., 1 Law Eep. Eq. 84 and 89. To restrain waste. [See Tenant in com- mon, 1.] To restrain jlooding of mine. [See Mine, 11.] To restrain breach of covenant in mining [See Mine, 5.] P P 290 IKJUNCTION (B), (E). To restrain suit in Equitl/. [Sae Intee- PLEADEE, 3.] To restrain, proceedings against Joint-Stock Company. [See Company (F) 106.] To resitiain railway company from running trains over land subject to lien for un- paid purchase-money. [See Eailtvay Company, 28, 29.] To restrain unequal charges by railway • company for carriage of goods. [See Caeeeee, 29, 31.] (B) To EESTHAIN SlilT IN THE DiTOECE COUET. 87. — A separation deed executed by a husband and wife contained a covenant that neither party should take proceedings against the other in res- pect of any cause of complaint which had arisen before the date of the deed, every offence then committed by either party being thereby condoned. The husband executed this deed upon the faith of his wife's protestations of her innocence, but he shortly afterwards discovered that she had pre- viously to the execution of the deed been guilty of adultery, and he instituted, on the ground of fraudulent concealment, a suit in the Divorce Court for a dissolution of the marriage. The wife then filed a bill to restrain that suit, as being a violation of the covenant in the deed, but did not deny the adultery and misrepresentation. Upon motion for injunction:— Held, that the plaintiff could have no relief in equity, first, because the deed could be well pleaded in the Divorce Court ; and secondly, because the plaintiff did not " come with clean hands ; " and motion dismissed, with costs. Where a defendant seeks to impeach for fraud a deed which is pleaded against him, he may set up the fraud by his answer without filing a cross- bill. Brown v. Brown, 38 Law J. Eep. (n.s.) Chanc. 153 ; Law Eep. 7 Eq. 185. (C) To EESTEAIN FoKEIGN SuiT. 38. — A British subject, having real and perso- nal estate both in England and the Netherlands, by his will gave all his real and personal estate to English and foreign, but as regarded the latter so far only as he had power to dispose of it by the law of the country where situate, to trustees upon certain trusts. A general decree for administra- tion and execution of the trusts was made in England. Subsequently one of the cestuis que trustent took proceedings in the Netherlands for administration of the real and personal estate, con- tending that the testator died domiciled in the Netherlands. On a supplemental bill by plaintiff here, praying that the domicil might be declared English, and for an injunction to restrain the foreign suit, on motion, V. C. Stuart, consider- ing the domicil to be English restrained the foreign suit, and the, taking any other proceedings as to the personal estate. On appeal, this order was affirmed, the appellant not shewing that the foreign suit could be proceeded with as to the real estate and dropped as to the personal. Dissen- tiente Knight Bruce, L. J., who considered that the foreign suit should not be restrained aa to the real estate. QwiEre— "Whether the foreign suit ought not to be restrained even if it related to real estate alone. Hope v. Carnegie, 1 Law Eep. Chanc. 320. 39. — A testator domiciled in England, but occasionally residing in Scotland, gave the residue of his realand personal estate, the bulk of which was locally situated in England, to two of his sons, one of whom ftt the time of the testator's death was indebted to an insurance company, carrying on business in England and Scotland. The will was proved in England, and probate recorded in Scotland. The insdrance company, having pre- viously obtained judgment in an English Qourt, instituted proceedings against the executors in the Court of Session to arrest, in their hands, the share of the debtor in the testator's residuary estate. One of the executors filed a biU for ad- ministration of the estate in England, and moved for an injunction to restrain the proceedings in Scotland. The Court granted the injunction upon the plaintiff's undertaking to obtain an adminis- tration decree forthwith. In such cases the mere fact of a bill pending for administration in this Court, is sufficient to support the injunction. It is not necessary that there should have been a decree. Baillie v. BaUli^, 37 Law J. Eep. (n.s.) Chanc. 225 ; Law Eep. 5 Eq. 175. (D) Damages in Cottet of EaniTY. 40. — A suit cannot be sustained in this Court for the purpose of recovering damages from inva- sion of ancient lights when the injunction is re- fused. Beere v. Guest, 1 Myl. & Cr. 616, observed upon. Calcraft v. Thompson, 35 Beav. 659. 41. — Where, at the time of filing the bill, the plaintiffs were entitled to an injunction against a railway company to restrain them from using their land, damages were awarded at the hearing, al- though no injunction was in fact obtained, and the plaintiflfs' interest in the land had meanwhile determined. M'Rae v. The London, Brighton and South Coast Railway Company, 37 Law J. Eep. (n.s.) Chanc. 267. 42. — Where a breach of covenant is threatened, and has been partly executed, the Court, having jurisdiction to restrain the threatened breach, will also award damages in respect of the executed breach. Hindley v. Wmery, 35 Law J. Eep. (n.s.) Chanc. 6 ; Xaw Eep. 1 Eq. 62. 43. — Although the Court of Chancery will restrain equitable waste, irrespective of the ques- tion whether damage has been done to the inherit- ance ; yet where the waste has been actually committed, and the reversioner claims damages, the amount of damages can only be measured by the damage done to the inheritance. Bvhh v. Yel- verton, ex parte Hastings, 40 Law J. Eep. (n.s.) Chanc. 38 ; Law Eep. I'o Eq. 465. [And sec Nos. 9, 14, 30 supra, and No. 46 infra.] INJUNCTION (E)— INSPECTOESHIP DEED. 291 (E) Peaotice. (a) Mandatory Injunction. 44.— What amounts to a sufficient obstruction to entitle the plaintiff to relief in equity. Eelief by way of mandatory injunction is con- fined to cases of probability of extreme or very serious damage. But the Court has no general rule against granting such relief although the damage may have been completed before the filing of the bill. Every ease must depend upon its own circumstances. Where a plaintiff in other respects fails in equity, the Court has not, under 25 & 26 Vict. u. 42, Mr. Holt's Act, any jurisdiction to entertain, and has, under 21 & 22 Vict. c. 27, Sir Hugh Cairns' Act, a discretion to refuse to entertain the question of damages. The judgment of the Master of the EoUs, 34 Law J. Eep. (n.s.) Chanc. 598, affirmed, but on different grounds. Burdl v. Pritchard, 35 Law J. Eep. (n.s.) Chanc. 223 ; Law Eep. 1 Chanc. 244. 45. — There is no rule of Court that a manda- tory injunction will not be granted except at the hearing. Mandatory injunction granted, on inter- locutory application, to take down so much of a wall, built opposite to ancient lights, as exceeded in height the distance between that wall and the ancient lights. Semble — By analogy to the Metro- politan Act, where the wall opposite the ancient lights does not exceed in height the distance be- tween that wall and the ancient lights, the Court will infer that the ancient lights are not so materially prejudiced as to render an injunction necessary. Beadel v. Ferry, Law Eep. 3 Eq. 465. 45^. — Where, in a suit to restrain the completion of a building, which would obstruct plaintiff's ancient lights, the Court is of opinion that by awarding damages, instead of granting a manda- tory injunction, substantial justice will be done, the Court will incline to the former ; and the fact that the plaintiff had offered to take a moderate money compensation, is a strong reason for grant- ing relief in that shape, instead of by mandatory injunction, whereby extortion might be exercised. In these cases, where the defendant desires to rely on acquiescence, he should volunteer to shew his building-plan to plaintiff at the earliest period. Senior v. Pawson, Law Eep. 3 Eq. 330. Mines, flow of water. [See Mines, 10.] (b) Injunotion against trespass : form of decree. 46. — The defendants, guardians of the poor, wrongfully claiming a right of way to their relieving office over the plaintiffs' lands, inviting paupers to come that way for relief; the trespass by the paupers causing serious injury to- the plain- tiffs, an injunction was granted to restrain the guardians, " their servants, workmen and agents," from trespassing. In considering the injury, the possible as well as the actual use of the injured premises will be regarded. Ardley v. TTie Guardians of the Poor of St. Pancras, 39 Law J. Eep. (n.s.) Chanc. 871. (e) Interlocutory application. (1) Delay. 47. — The Court will not grant an interlocutory injunction if the plaintiff, having sufficient notice of the defendants' intention to commit "the act sought to be restrained, is guilty of unreasonable delay in applying to the Covirt. Salisbury v. 2%e Metropolitan Railway Company, 39 Law J. Eep. (N.s.) Chanc. 429, 667. [And see Pkoduction in Eauirv, 17.] (2) To stay action at Law. 48. — On an interlocutory application to stay an action the plaintiff's equity must be clearly estab- lished, or he must pay the money into Court ; therefore where the plaintiff's equity rested on an alleged parol agreement, which was denied by the defendant, and the plaintiff declined to pay the money into Court, a motion to stay the action was refused. Grech v. Oram, 39 Law J. Eep. (n.s.) Chanc. 126. (d) Interim Injunction. 40. — An interim injunction, if nothing is said to the contrary, continues until the case is dis- posed of by the Court. Carrow v. Ferrior, Dunn V. Ferrior, 39 Law J. Eep. (n.s.) Chanc. 669 ; Law Eep. 3 Chanc. 175. INJUEY. To reputation. [See Injunction.] To trees. [See Malicious Injuey.] To cattle. [See Maliciously woundino Cattle, 2.] INNKEEPEE. [Siee Alehouse, 8-1 2.] INSANITY. ■ [See Lunatic] Of testator. [See Peobate, (H) 12 ; Le- gacy, 27-30.] INSOLVENCY. [See Bankruptcy ; Composition Deeds.] Insolvency of husband. [See Baeon and Feme, 29,] Foreign insolvency. [See Jueisdiotion in Equity, 6 ; Paetneeship, 20.] INSPECTOESHIP DEED. [See Composition Deeds, 114-123.] pp 2 292 INSUEANCE (A), (B). INSURANCE. [See Company (C) 81, (G) 24, 25, 49-53.] For right to sue. [See Arbiteation (A) 3.] (A) Instjeanoe Companies. (B) Inbuhancb on Lives. {a) Form of. (4) Cotistruction of the contract : condition (C) Insueance against Fiee. (a) Construction of contract. (1) Explosion by gas. (2) Computation of time. (i) Eight to sue. (D) Insueance against Accidents. (1) Plate-glass: damage from fire or breakage during removal. (2) Life : death from excited disease caused by accident. • (A) Insueance Companies. 1. — The deed of settlement of a companyformed in 1844 for insurance and investment, provided that all persons holding any stock in the associa- tion should (among other persons) be members. The deed defined two classes of stock — mutual stock and the capital stock, the former arising from that part of the money received for invest- ment, which was not to be liable to the liabilities of the insurance department. The mutual stock was to be of "unlimited amount, and to be issued in shares of such amount and upon such terms as to price and otherwise, and subject to such stipula- tions as to the return or cancellation thereof, as were thereinafter mentioned, or as should be pro- vided by any by-laws ; and was to bear .such interest, payable only out of profits, and not ex- ceeding U. per cent., as should be determined by the board of management, with a power to the board to give the holders a larger amount of the promts when more than sufficient to answer certain other claims. After some time the company as- sumed the title of " bank of deposit," and issued a prospectus, inviting deposits, and stating that stock vouchers %70uld be given for all sums de- posited, but not stating anything from which it could fairly be inferred that depositors would be- come shareholders or share in profits. Mrs. D deposited a sum with the association, and received a certificate that she was entitled to a correspond- ing amount of "investment stock'": — Held, on the winding-up of the company, that Mrs. D was not the holder of any such stock as was contem- plated by the deed, was not entitled to share in profits, and was not a contributory. A consented to become a director of the com- pany, and was appointed a director, but never took any active part in the affairs of the company, and after about fourteen months he resigned his office. By the terms of the deed of settlement no one coulcl be a director who did not hold lOOl. capital stock. A, ho*ever, never was, and never agreed to be, the holder of any stock in the company : — Held, reversing- the order appealed from, that A could not be placed on the list of contributories, on the ground of his having, by accepting the office of director, come under an obligation to take the stock requisite to qualify him for the office. Dames, Mrs. case, In re The National Insurance and Investment Association, 4 De Gex, F. & J. 78. 2. — An insurance company paying money under a decree of the Court npon a policy which has been lost is not entitled to any further indemnity. England v. Lord Tredegar, 35 Law J. Hep. (n.s.) Chanc. 386 ; 35 Beav. 256 ; Law Eep. I Eq. 344. (B) Insueance on Lives. {a) Form of. 3.— By the 14 Geo. 3. c. 48, s. 2, ajife policy in which there is not inserted -the name or names of the person or persons interested therein, or for whose use, benefit, or on whose account the policy is made, is unlawful. A husband, whose wife was a minor and entitled to a sum of money on attaining the age of twenty- one, applied to her trustees for an advance, which they agreed to make upon having the repayment of it secured by one J in the event of the wife dying before attaining twenty -one. J having con- sented to become security upon condition that an insurance was effected on the life of the wife, a policy was executed by an insurance company which was expressed to be made between them and the wife, who was described as a married woman. Neither the name of the husband nor that of any other person besides the wife was in- serted in the policy as being interested in it : — Held, that the policy was void, as not containing the name of the husband or other person inter- ested in it. Evans v. Bignold, 38 Law J. Eep. (n.s.) a. B. 293; 10 Best & S. 621 ; Law Eep. 4 Q. B. 622. (6) Construction of the contract: condition against suicide. 4. — Where there is a condition in a life policy that in the event of the assured dying by his own hand, the policy shall be void, except to the extent of any boni fide interest, which at the time of his death, shall be vested in any other person or persons for his or their own benefit, the exception applies as much when that interest is vested in the assurers themselves as when it is vested in a third party. Therefore, where W effected a policy of assur- ance upon his life with the above condition and exception, and deposited the same with the assurers by way of collateral security for a loan from them to him : — Held, that, notwithstanding the suicide of the assured, the policy was good to the extent of the debt for which it was held as security, and therefore that the debt was extinguished by the moneys which became payable under the policy. White V. The British Empire Mutual Life Assv/r- ance Cnmp'any, 38 Law J. Eep. (n.s.) Chanc. 63 ; Law Eep. 7 Eq. 394. The condition avoiding a policy in the event of the assured dying by his own hand applies to all cases of self-destruction, and it is immaterial that INSUEANCE (C), (D). at the time of committiiig tlie act the assured was •of unsound mind, IHd. (c) Misr(pTesentation. 5. — In July, 1863, B negotiated for the insur- ance of his life in the plaintiff's office, and in fining up the usual declaration as to his health and habits of life, stated that he could not remem- ber when he was last ill, and that, he was then and always had been enjoying good health. After examination by the medical officer of the company, Jie was accepted as a tirst-class life. In August preceding the completion of the contract, S became alarmed about his health, and went to consult a physician other than bis ordinary medical atten- dant, who warned him that he was in a dangerous state of health, and prescribed for him. B never communicated this circumstance to the company. In September the premium was paid and the policy effected. On the receipt of the premium was in- dorsed a condition that if any variation should have taken place in the health of the assured since the date of the medical examination and before, ac- tual payment of the premium, the receipt should be void. Eight months afterwards B died ; it was not proved satisfactorily of what disease : — Held, affirming a decree of Malins, V.C., 38 Law J. Eep. (n.s.) Chanc. 132, that the non-communication to the company of his change in health and visit to the physician was fraudulent and vitiated the policy. The British Equitable Insurance Com- pantfv. The Great Wettern Railway Company, 38 Law J. Eep. (n.s.) Chanc. 314. The Court has undoubted jurisdiction to enter- tain cases of this description. Ibid. (C) Insveakcb against Fire. (a) Construction of contract. (1) Explosion by gas. 6. — ^A policy of insurance against fire contained a condition that the ineurers would not be respon- sible for loss or damage by explosion , except for such loss or damage as should arise from explosion by gas. Upon the premises insured oil was ex- tracted from shoddy, and in the course of the manufacture bisulphide of carbon, in process of distillation, by accident escaped, in the form of vapour, from the vessel in which it was confined. It ignited at the lamps used on the premises, set fire to some matting, and then, becoming mixed with the atmospheric air in such proportions as to become explosive, exploded, and caused great damage to the premises,' upon which the fire after- wards became general: — Held, that although the fire preceded the exploiiOn, yet the explosion came within the condition ; secondly, that the exception ' in the condition with respect to "gas" referred only to gas ordinarily used for illuminating pur- poses ; thirdly, that the insurers were not respon- sible for damage by fire subsequent to the explosion and caused by it, their liability being only for damage caused by fire previous to the explosion, ■ and by such fire after the explosion as was the natural extension of the first fire, and not due to the explosion. Stanley v. The Western Insurance Company, Limited, 37 Law J. Eep. (n.s.) Ex. 73; Law Eep. 3 Ex. 71. (2) Computation of time. 7. — A fire policy, dated the 14th of February, 1868, and headed " six months ; premium to 14th August, 1868, 225 dollars," and reciting that the assured had paid 226 dollars, and had agreed to pay the sum of 225 dollars during the continuance of the policy, was expressed to be in force " from the 14th of February till the 14th of August, and for so long after as the assured should pay the above premium at the time above mentioned : " — Held, that whether the 14th of February was covered or not, the whole of the 14th of August was covered by the policy ; and that the assured was entitled to recover in respect of damage done to the property insured by a fire which occurred at 11.30 P.M. on the Hth of August, although he had not paid premium on that day. Isaacs v. The Royal Insurance Company, 39 Law J. Eep. (n.s.) Ex. 189 ; Law Eep. 5 Ex. 296. (D) Insueance against Accidents. (1) Plate-glass: damage from fire or breakage during removal. 8. — The plaintiff effected with the defendants a plate-glass policy, by which they inSured the plate- glass in the plaintiff's shop window " from loss or damage originating from any cause whatsoever, except fire, breakage during removal, alteration or repair of premises," "none of the said glass being horizontally placed or movable " ; and by condition 2 of the policy it was stated, that in case of loss or damage notice must be given " to the manager or to some known agent" of the defendants. The plate-glass so insured was broken by a crowd of persons assembled to witness a fire at a, house adjoining the plaintiff's, and who, having broken the glass, took away some of the plaintiff's goods whilst he was engaged in removing his property to a place of safety. The fire never reached the glass or the shop front in which it was placed : — Held, that the proximate cause of the injury to the glass was the crowd, and that the damage was not one originating either from "fire or breakage during removal" within the meaning of the excep- tion in the policy. Marsden v. The City and County Assurance Company, lAmited, 35 Law J, Eep, (n,s,) C, p. 60 ; H. & E. 53 ; Law Eep, I C. P, 232. Held, also, that a notice of the loss to the per- son who had been the defendaute' local agent through whom the policy had been effected by the plaintiff, though he had afterwards ceased to be their agent by reason of their transferring their business as such insurers to another company, was a sufficient compliance with condition 2 of the policy. Ibid, ' (2) Life : death from excepted disease caused by accident. 9. — A policy for insuring the payment of a sum of money in case the insured should be injured by accidental violence and die from the direct effect of such accident, was subject to the following condi- 294 INTEREST— INTERPLEADER (A). tions: "This policy insures against all forms of cuts, stabs," &c., "when accidentally occurring from material and external cause operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured ; " but it does not insure against death or disability arising from rheumatism, gout, hernia, erysipelas, or any other disease, or secondary cause or causes arising within the system of the insured before, Sr at the time, or following such accidental injury, whether causing such death or disability directly or jointly with such accidental injury : — Held (per Martin, B., Channell, B., and Cleasby, B., dissentiente itelly, C.B.), that the insurers were not liable where the insured died from ery- sipelas caused by an accidental cut. Per Kelly, C.B., that the insurers were liable, and that the exception in the condition applied only to erysipelas arising collaterally in the sys- tem of the insured, and not caused by the acci- dental violence. Fitton v. The Accidental Death InsuraTice Com- pany, 34 Law J. Rep. (n.s.) C. P. 28 ; 17 Com. B. Rep. N.S. 122, approved by the Court, but dis- tinguished by Martin, B., Channell, B., and Cleasby, B. Smithy. The Accidental Insurance Company, 39 Law J. Rep. (n.s.) Ex. 211 ; Law Rep. 5 Ex. 302. INTEREST. In properly : Declaration of Title Act, 25 ^ 26 Vict. c. 67. [See Tkustee (E) 3.] [See also PooE, 6 ; Probate (M) 14.] Of Judge in " the matter in dispute." [See Justice of the Peace, 1, 2 ; Lands Clauses Act, 34.] On debts. [See Bankbuptot; Bond ; Com- pany ; Lands Clauses Act ; Moet- GAGE.] INTERNATIONAL LAW. [See Shipping (B) 10.] (1) Usurping de facto government. 1. — Certain cotton the public property of the Confederate States of America, was consigned by the Confederate Government to the defendants Prioleau and others, a firm carrying on business at Liverpool, in pursuance of an agreement between the, Confederate Government and the defendants, whereby the defendants were entitled out of the proceeds of the cotton to recoup themselves certain charges and expenses incurred by them under the provisions of the same agreement. The Con- federate Government having been dissolved, and the Confederate States having submitted to the authority of the United States Government, the latter government filed a bill praying to have the cotton, which had arrived at Liverpool, delivered up to them, and for an injunction and receiver. It appeared by the evidence that the defendants had, under the agreement, a lien upon the cotton to the extent of at least 20,000^. Upon motion foran injunction and receiver, — Held, that' the cotton in question, was now the property of the United States Government ; but that they must take it subject to the obligations entered into respecting it by the de facto Confederate Government. The defendant Prioleau was appointed receiver, with power to sell the cotton ; but he was required to give security for its value ultra the 20,000/., the amount of the defendants' lien. United States of America v. Prioleau, 35 Law J. Rep. (n.s.) Chanc. 7. 2. — Where the sovereign power in a state is for a time-de facto exercised by an usurping individual or body the original sovereign on restoration is entitled on the ground of jus in rem to ail public property which existed before the usurpation and is found in specie after its termination, and he also becomes fcntitled jure suceessionis to all other public property of the usurper. But in an English Court of equity the latter right can only be en- forced subject to the same correlative rights and obligations as if the usurper himself were seeking to enforce it. Therefore the origiual sovereign cannot have a decree for, an account against an agent of the usurper, unless he submits to be bound by all such obligations as would have been binding upon the usurper if plaintiff. United States of America v. M'Bae, 38 Law J. Rep. (n.s.) Chanc. 406 ; Law Rep. 8 Eq. 69. (2) Dependency and Supreme Governmtnt. 3. — The London agent, who was also a member of a firm who, were commissioned to sell goods ou behalf of the local government of a Spanish colony, was held to be justified in refusing to give them up to the Spanish Consul-General in England till he had communicated, through his immediate principals, with the local government. An agent, who has the business taken out of his hands before completion is by the custom of merchants entitled to half the commission which he would have earned by completing it. The 10 per cent, discount usually allowed by insurance companies on punctual payment of the premiums belongs, in the absence of agreement to the contrary, not to the insurance agent, but_ to his principals. The Queen of Spain v. Parr, 39 Law J. Rep. (n.s.) Chanc. 73. INTERPLEADER. (A) At Law. (a) When granted. (b) Bond stamped after tim£ limited for giving security. (o) Evidence. (B) In Equity. (a) Bill for, when maintainable. (6) Practice. (A) At Law. (a) When granted. 1. — A policy of insurance was handed by T to bankers, for them to collect moneys due to him INTEEPLEADEH (B)-^OINT TENANTS. 295 under the policy, which they failed to do. While the policy was in their custody B gave them notice that he claimed it, and that they were not to return it to T. T commenced an action against the hankers, his declaration containing a count in assumpsit claiming special damage for an al- leged breach of duty in not collecting the moneys due under the policy and re-delivering the policy to him, and counts in trover and detinue claiming the policy itself. B also brought an action against the bankers, to recover the policy. An interpleader order- having been made staying proceedings in T's action, and giving him leave to defend the action brought by B against the bankers on indemnifying them against the costs : — Held, upon an application to rescind the order, that it was a just and reasonable one, and that the existence of the count in assumpsit, claiming special damage, was not a ground for rescinding the order. Tanner t. The European Baiik, Limi- ted,; Bowen v. The same, 35 Law J. Eep. (n.s.) Ex. 151 ; 4 Hurl. & C. 398 ; Law Bep. 1 Ex. 261. {b) Bond stamped after time limited for giving security. 2. — By an interpleader order it was directed that upon the claimant giving, within a limited time, security to the satisfaction of a Master for a certain sum, the sheriff should withdraw from goods he had seized in execution. On the last day limited by such order, and in the absence of and without notice to the execution creditor, a bond with sureties was approved by the Master, and then left with him by the claimant's attorney, and gn the same day notice was given to the sheriff by the claimant that such bond with sure- ties, to the satisfaction of the Master, had then been filed in pursuance of the said interpleader order, and in consequence' of such notice, the sheriff then withdrew. When the bond was so left with the Master, it had not the requisite stamp ; and upon this being discovered, the bond was taken to the stamp office, and there stamped the day after that limited for giving the security; and on its being brought back stamped to the Master's office, it was then marked as filed on. that day ; but the bond had never been out of the custody of the Master after it had been first left with him: — Held, that, though as between the claimant and the execution creditor the bond may not have been properly delivered according to the interpleader order, the condition as to giving security had been satisfied so far as the sheriff was concerned, and that he was therefore justified in withdrawing when he did. Darby v. Waterlow and others, 37 Law J. Bep. (n.s.) C. P. 203 ; Law Eep. 3 C. P. 443. (c) Evidence. [See Eailwat Company, 33.] (B) In EauiTT. (ffi) Bill for, when maintainable. 3.^The institution, by one of two claimants of a fund, of a suit in equity, without making the other claimant a party, for the purpose of enforcing payment from a stakeholder, is no bar to the sub- sequent institution by the stakeholder of an inter- pleader suit, or to the obtaining by him in the in- terpleader suit of an injunction extending as well to the prior proceedings in equity as to proceed- ings at law. The Prudential Assurance Company V. Thomas and another, 37 Law J. Bep. (n.s.) Chanc. 202 ; Law Eep. 3 Chauc. 74. Warington v. Wheatstone, 1 Jacob, 202, followed. 4. — Where two bills of lading got into the hands of different persons, A and B, and the master deli- vered a portion of the goods to A, and, as he al- leged, a portion to B by mistake, .and both A and B commenced proceedings in the Admiralty Court in rem, and attached the ship, this was held not to be a case for a bill of interpleader by the master, as, although he was a party to the suit, the owners are the real defendants. Semble— Though the pro- ceedings by A sought damages against the master under 24- & 25 Vict. c. 10, s. 6, for breach of duty in delivering to B, this would not be a case for in- terpleader. Sablidch v. Eussell, Law Bep. 2 Eq. 441. (i) Practice. 5. — A sheriff was in possession of goods under a writ of fi. fa. out of the Court of Chancery, but before selling, the debtor was adjudicated bank- rupt, and his assignee gave notice to the sheriff, and claimed the goods ; the sheriff, being ordered to make a return to the writ, sold the goods ; both the execution creditor and the assignee claimed the proceeds : — Held, the sheriff was entitled to file an interpleader bill, notwithstanding 1 & 2 Will. 4. c. 58, s. 6. Child v. Mann, Law Eep. 3 Eq. 806. 6. — In an interpleader suit, although the plain- tiff has not paid the money into Court on an ex parte application, he is nevertheless entitled on giving the usual undertaking as to damages to pay the money into Court, and to the protection of the Court until the hearing. Order of Malins, V.C, discharged. Manby v. Bobinson, 38 Law J. Eep. (n.s.) Chanc. 309 ; Law Eep. 4 Chanc. 347. Costs of sheriff filing interpleader bills too hastily. [See Sheriff, 13.] INVESTMENT OF EUNDS. [See TKtrsTEB (C).] JOINTUBE. [See Makeiagb Settlement (C) ; Peopeett Tax.] JOINT TENANTS. [See Tenancy in common, 2 ; Tbovbr, 2 ; Maebiage Settlement, 6, 20; Legacy, 18; Tetjst (A) 8 ; Copyhold, 4.] 296 JUDGE -JUDGMENT (A), (C). JUDGE. Words spoken by, in a judicial capacity . [See Slandeb, 2.] JUDGMENT. [See Peactioe ai Law, 12, 37, 46.] (A) Eegisteation of Jttdgment : Phiobitibs.] (a) Under 27 # 28 Vict. c. 112. (J) Under previous Acts. (B) Goods seizable in exbcwtion. (C) Satisfaction. (D) Garnishee Oedeb: Eights of Cbeditob OBTAINING. (E) Chaegbs ON Land under 27 & 28 Vict. c. 112. (E) Charge on Teust Funds. (G) Charging Oeder on Shaees and Stock. (a) When granted. \h) Eights of creditor under. (H) Priorities of Judgment Creditors in the Administration of Assets. (I) Eight of Judgment Creditor to re- deem Mobtgage. (K) Staying Execution. (A) Eegistration of Judgment : Priorities. (a) Under -H ^ 28 Vict. c. 112. 1. — After the passing of the 27 & 28 Viet. c. 112, G obtained and completely registered a judg- ment against C, and afterwards M did the same. M, on the 15th of May, 1867, and G, on the 16th of May, 1867, issued and lodged with the sheriff a writ of elegit. The inquisitions were taken on the same day, and the sheriff, notwithstanding G's protest, took the inquisition on M's elegit first, and delivered the debtor's lands in execution to him : — Held, that M's judgment was a prior charge on such lands to G's. Guest v. TAe Cow- bridge Bailway Company, 37 Law J. Kep. (n.s.) Chanc. 909 ; Law Eep. 6 Eq. 619. 2. — The mere registration of a judgment upon which no writ of execution has issued, constitutes no lien upon the debtor's land. . The Judgment Amendment Act, 1864, 27 & 28 Vict. c. 112, has in effect repealed 1 & 2 Vict. o. 110, s. 13. Semble — Eegistered judgment creditors who have not taken out execution are no longer neces- sary parties to a foreclosure suit. In re Baily's Trusts, 38 Law J. Eep. (n.s.) Chanc. 237. (b) Under previous Acts. 3. — K obtained, in 1854, a judgment against W, who died intestate in 1862. K registered the judgment in 1863, and sued out a writ of revivor against W's administrators, who had before the judement was registered exhausted the assets in payment of simple contract debts. K brought an action against the administrators on the writ of revivor : Held, that since the judgment had not been registered under the 18 & 19 Vict. c. 15. o. 3, until 1863, and the intestate died in 1862, after the 23 & 24 Vict. c. 38 came into operation, the effect of section 3 of the latter Act was to deprive the judgment debt of all priority over simple con- tract debts. Kemp v. Waddingham and others, 35 Law J. Eep. (n.s.) Q. B. 1 14 ; 7 Best & S. 301 ; Law Eep. 1 Q. B. 366. 4, — When an Act of Parliament requires that the usual or last known place of abode of a person shall be stated, the degree of accuracy required must depend on the motives of the legislature in making the requisition. An affidavit under the first of these Acts by the judgment creditor stated that he, &c., obtained a judgment in, &e., against the defendant in this cause by the name and description of, &c., " formerly of Ballina Park, in the county of Wexford, and now of the city of Dublin, Esq.":^Held, that the description was sufficient, and that the affidavit was a compliance with the 13 & 14 Vict, although it was in the form of a recital of the judgment. The 21 & 22 Viet, only applies to a supplemental affidavit to verify statement contained in the former affidavit where not covered by a verification. Thorp v. Browne, Law Eep. 2 H. L. 220. (B) Goods sbizablb in execution. 4. — By a building contract between A, the land- lord, and B, the builder, A was to. grant leases on the erection of buildings, and to assist the build- ing operations by making advances to B according to the progress of the buildings. The 7th clause of the contract stated that all materials and other things brought on the premises by B for the pur- pose of erecting the buildings were to be considered as immediately attached to and belonging to the said premises, and were not to be removed there- from without the consent of A. The 8th clause empowered A to enter upon and take possession of the land, with all buildings and other materials standing thereon, in case B should fail to proceed with the completion of the buildings : — Held, that the 8th clause did not qualify the- 7th clause, and that the ^ffisct of such 7th clause was to give such an equitable interest in the materials for the build- ings brought on the land by B that they could not be taken in execution by a judgment creditor of B. Held, also, that the contract was not a bill of sale within the Bills of Sale Act, 17 & 18 Vict. c. 36. Brown and another v. Bateman, 36 Law J. Eep. (n.s.) C. p. 134 ; Law Kep. 2 C. P. 2/2. (C) Satisfaction. 5. — An action having been referred, an award made,for the plaintiff for a certain sum, and judg- ment entered accordingly, the defendants obtained an order to stay proceedings for axertain time on paying that sum into Court, to enable them to apply to the Court to set aside the award. The money was paid in, and on tne defendants' appli- cation being refused, they told the plaintiff they would not pay interest on it, and would do every- thing to further the payment out of Court to him ; but the plaintiff contended ]that he might leave it in, tax his costs and claim principal and interest on it up to final judgment and satisfaction thereof. JUDGMENT (D), (G). 297 The taxation having been concluded, the defendants themselves obtained an order under which the sum in Court was paid to the plaintiff; and as the plaintiff claimed interest till that time, they then applied to stay all further proceedings and enter satisfaction on payment of the costs and interest only down to the refusal to set aside the award. The Court granted the application, on tlie ground that it would have been an abuse of the process of the Court for the plaintiff to recover more interest, as without incurring expense he could always have had the principal from the time when the applica- tion to set aside the award was refused. Sinclair V. The Great Eastern Raiiway Company, 39 Law J. Eep. (n.s.) C. p. 224; Law Kep. 5 C. P. 391. (D) Gabnishbb Okdek; Eights of Ceeditob OBTAINING. 7. — A judgment creditor of an intestate having obtained a garnishee order, under the 17 & 18 Vict. c. 125, s. 61, against a debtor to the estate, before decree in an administration suit : — Held, that he could not be restrained from enforcing such order. In re Barnes. Harper v. Barnes, 36 Law J. Eep. (n.s.) Chanc. 63. (E) Chakgh on Land undbe 27 & 28 Vict. c. 112. 8, — A judgment creditor cannot present a peti- tion, under 27 & 28 Vict. c. 112, until the land shall have been actually delivered to him in exe- cution. Therefore, where the land has abeady been delivered to a prior judgment creditor, a subsecjuent judgment creditor is not in a position to present a petition, but must file a bill to enforce his rights. In re The Cowbridge Railway Company, 37 Law J. Eep. (n.s.) Chanc. 306 ; Law Eep. 8 Eq. 463.- 9, — Upon the petition of a judgment creditor of a railway company, for a sale of certain land of the company which had been delivered to the petitioner under an elegit, and which, according to evidence of the petitioner, not contradicted by the company, was surplus land : the Court made an order, without directing inquiries, that the com- pany should execute a proper conveyance. In re Calne Railway Company, Law Eep. 9 Eq. 658. 10.— The Act, 27 & 28 Vict. c. 112, s. 4, does not enable an execution creditor to obtain the sale of any lands of his debtor except such as the debtor could previously have sold. Therefore, an execution creditor of a railway company cannot obtain an order for sale of the line of railway, but will only be entitled to an inquiry as to the interest of the company in the property. In re Bishop's Waltham Railway Company, Law Eep. 2 Chanc. 382. Form of' order for inquiries. Gardner v. London, Chatham, and Dover Railway Company. Ex parte Grissell, Law Eep. 2 Chanc. 385. 11. — The Court has no jurisdiction under the Act, 27 & 28 Vict. c. 112, s. 4, to order a sale, except of property actually delivered in execution. An equitable estate in leaseholds cannot be delivered in execution under a writ of fi. fa. Semble— The effect of sections 1 and 3 of the above Act is so far to restrict the operation of Digest, 186S-T0. section 13 of 1 & 2 Vict. u. 112, as to prevent a judgment debt from being treated under that section as a charge upon any lands which cannot be, or have not been, delivered in execution. Therefore, where a judgment creditor had sued out and lodged with the sheriff a writ of fl. fa. against the goods of his debtor, and the sheriffs had, under such writ, affected to seize, and had, in fact, taken possession of leaseholds in which the debtor had an equitable life estate, upon a petition by the judgment creditor, presented under 27 & 28 Vict. c. 112, a. 4, for a sale of such leasehold interest : — Held, that the Court had no jurisdiction to make the order, and that it could not upon such a petition (if at all) treat the judgment debt as a charge upon the equitable leasehold interest, for the purpose of ordering a sale ; and that the pos- session of the sheriff was not such a delivery in execution as was requisite to give the Court juris- diction. In re The Duke of Newcastle. Ex parte Padwick, 39 Law J. Eep. (n.s.) Chanc. 68 ; Law Eep. 8 Eq. 700. 12. — Lands have been " actually delivered in execution " within the meaning of the 27 & 28 Vict. c. 112. ss. 1, 4, when sequestrators are in receipt of the rents and profits. In re Rush, 39 Law J. Eep. (n.s.) Chanc. 759 ; Law Eep. 10 Eq. 442. [And see Eailwat Company, 36, 47.] (F) Chaege on Trust Funds. 13. — The Court cannot by any process analo- gous to an attachment at law under the garnishee clauses of the Common Law Procedure Act, 1854, give to a judgment creditor a charge upon money in the hands of trustees for the judgment debtor. Horsley v. Cox, 38 Law J. Eep. (n.s.) Chanc. 285 ; Law Eep. 4 Chanc. 92. (G) Chaeging oedee on Shakes and Stock. (a) When granted. 14, — Shares in a limited company were trans- ferred by T to B to secure a debt due to B. Before the transfer was registered, the plaintiff obtained judgment against T. Contemporaneously with the execution of the transfer, a deed was made, by which T assigned the shares subject to B's claim to trustees on trust as follows, viz. : (1) to pay the debt due to B ; (2) for the benefit of T and his wife ; (3) to pay the dividends to the wife for life ; (4) after her death to divide the fund among the children on their attaining twenty- one years of age ; and (5), should no child attain that age, then in trust for T and his assigns : — Held, that T, the judgment debtor had an interest in the shares within the meaning of 3 & 4 Vict, c. 82, s. 1, and that the plaintiff was therefore entitled to a charging order on the shares. Cragg V 7'aylor, 36 Law J. Eep. (n.s.) Ex. 92 ; 36 Law J. Eep. (n.s.) Ex. 63; 4 Hurl. & C. 158; Law Eep. 2 Ex. 131. (6) Rights of creditor under. 15. — Certain railway shares and reduced 3 per cent, annuities were standing in the names of exo- 298 JUDGMENT (H), (K)-JUfilSDICTION IN EQUITY. cutors, under a will which provided that the exe- cutors should sell and convert the same into money, and should, after paying certain legacies, &c., stand possessed of the proceeds in trust for A and his brother and sister. Judgment having been obtained against A, the plaintiff obtained a charging order on the shares and stock, which A sought to set aside : — Held, that the stock and shares were not standing in the name of any per- son in trust for the judgment debtor ; and that the judgment debtor had not any interest, either vested or contingent, in the stock and shares themselves within the meaning of 1 & 2 Vict. c. 110, or 3 & 4 Vict. c. 82. Cragg v. Taylor, 36 Law J. Bep. (n.s.) Ex. 63, see last case, distinguished. Dixon v. Wrench, 38 Law J. Eep. (n.s.) Chanc. 113; Law Hep. 4 Ex. 154. (H) Peioeities of Judgment Ceeditoes in the Administration op Assets. [See Administeation.] 16.— A creditor obtained a judgment against his debtor, who shortly afterwards died. The cre- ditor then, having revived the judgment against the executrix, obtained a charging order nisi upon shares forming part of the estate of the debtor. A decree for administration of the estate was made on the same day as the order nisi, but at a later hour. The plaintiff in the siiit thereupon, and before the order nisi could become absolute, ap- plied for an injunction to restrain the creditor from proceeding upon the order : — Held, affirming the decision of one of the Vice Chancellors, that the injunction could not bo granted. The grounds of shewing cause against an order nisi must be something jirior to the date of such order. Haly v. Barry, 37 Law J. Rep. (n.s.) Chanc. 723 ; Law Rep. 3 Chanc. 452. Observations on the dicta in Warburton v. HUl, Kay, 470 ; 23 Law J. Eep. (n.s.) Chanc. 633. Ibid. (I) Right of Judgment Chbditoe to eedeem Moetgaoe. 17. — Judgment creditors of a mortgagor, whose judgments were subsequent to 27 & 28 Vict. c. 112, s. 1, although at the date of a decree made in a foreclosure suit their judgments did not affect the mortgaged land, are nevertheless entitled to redeem, if, before the time fixed for redemption by the decree, they acquire a charge affecting the land, c. gr., by issuing writs of elegit, and obtaining a return from the sheriff. Mildred v. Austin, Law Rep. 8 Eq. 200. (K) Stating Execution. Signing judgment. [See Peactice at Law (K); Company (F) 107 ; Composition Deed, 78, 79.] JURISDICTION AT LAW. (A) Special case. (B) Weit of Restitution. (C) Party out of Jurisdiction. [See Prac- tice AT La-w, 8.] (A) Special case. 1, — In an action on an alleged contract of in- surance, a special case was stated without plead- ings, from which it appeared that no stamped policy had ever been executed ; but it was stated that for the purpose of the case it was to be taken' as if the defendants had executed a valid policy to the plaintiffs in ordinary form. The case was ordered to be struck out on the ground that there was no legal contract, on the effect of which the judgment of the Court could be delivered, and that the admission did not authorise the Court to dis- cuss a hypothetical case where the provisions of the Stamp Acts had been evaded. Nixon and another v. The Mbion Marine Insurance Company, Limited, 36 Law J. Rep. (n.s.) Ex. 180 ; Law Eep. 2 Ex. 338. (B) Writ op Restitution. 2. — Where a person guilty of a felony or mis- demeanor in stealing, &c. any property, has been indicted by or on the behalf of the owner of the property, and convicted thereof, the Court, before whom such person shall be tried, has power to award a writ of restitution for the property, or to order the restitution thereof in a summary manner, but the Court of Queen's Bench has not, in itself, any such power or jurisdiction. Walker v. The Lord Mayor and Mdermen of London, 38 Law J. Rep. (n.s.)M.C. 107. JUDICIAL SEPARATION. [See Divorce (E).] JURISDICTION IN EQUITY. (A) Rectification of Instruments. (a) Instrument on which plaintiff %s suing at Law. (h) On ground of mistake. (B) Remedy at Law oe in Equity. (a) Question of title. (4) Concurrent jurisdiction. (C) In eespect op Peopeety out of the JUEISDICTION. (D) OvEE Persons out op- the Jurisdiction. (E) Under paeticulae Acts of Parliament. (o> Under Sir John Eolt's Act, 25 S[ 26 Vict. u. 42. (i) To award damages under Sir Hugh Cairns' Act, 21 ^ 22 Vict. c. 27. (1) In suits for injunction. (2) In suits for specific ^performance. (F) In geneeal. (G) Ouster of Jurisdiction. (H) General peinciples governing thb ex- BECrsE op. JURISDICTION IN EQUITY (A), (D). 298 (A) Eectification op InSTBOTtIENTS. (a) Instrutnent on which plaintiff is suing at Law. 1. — A bill of exchange was intended to be di-awn by the defendant and given to the plaintiff in renewal of a former bill, but by mistake the name of the plaintiff appeared as a drawer. To an action on the bill, the defendant pleaded that the name of the plaintiff appeared as a drawer thereof. The plaintiff filed a replication stating that the plaintiff's name was inserted in the bill by mistake ; and the defendant joined issue upon this replication. Before trial the plain- tiff instituted this suit to rectify the bill by strik- ing out her name. A demurrer by the defendant to her bill of complaint was Overruled. Druiffw Lord Parker, 37 Law J. Eep. (n.s.) Chanc. 241 ; Law Rep. 5 Eq. 131. (6) On ground of mistake. 2. — Where a suit is brought to correct a con- veyance between vendor and purchaser on the ground of mistake, the Court will do so cr annul the conveyance at the option of defendant, al- though the mistake was only on the part of the plaintiff, where the parties can be restored to their former position. Costs refused to the plaintiff, where the mistake arose through great negligence. Harris v. Pepperell, Latr Eep. 5 Eq. 1. (B) Remedy at Law ob in Equity. (a) Question of title. 3. — There being two adverse claimants to money assessed for compensation in respect of land " injuriously affected " within the meaning of the Lands Clauses Consolidation Act, the parties by whom the compensation money was payable filed a bill for inquiry as to which of the two claimants was entiUed to such money. But the Court, holding the real question at issue to be the title to the land, refused to order a reference to chambers to inquire into that title, and directed ' the question to be tried by an action of ejectment. 71ie Metropolitan Board of Works v. Sant, 38 Law J. Rep. (n.s.) Chanc. 7 ; Law Eep. 7 Eq. 197. (J) Concurrent Jurisdiction. 4, — B induced E to advance to him a sum of money, representing to him that it was to be ad- vanced for the benefit of two persons, both of whom he stated to be men of good means, and parties to a bill of exchange held by him ; and B gave to R a memorandum that he held the bill upon trust as to half of the proceeds for R. The bill of exchange being dishonoured at maturity, he filed a bill against B to recover the money he had advanced. Upon demurrer by B stating the above facts, and alleging all the representations to be false:— Held, that the allegations of fraud gave jurisdiction to a Court of Equity notwithstanding the concurrent jurisdiction at law. Bamshire v. Bolton, 38 Law J. Eep. (n.s.) Chanc. 594 ; Law Re 1 .8 Eq. 294. (C) In eespect of Pkopehty on or the JUBISDICTION. 5. — If a plaintiff who is domiciled in this country sues a British subject here in respect of, or to have the foreign real estate of the plaintiffs exonerated by the defendant from a money de- mand, and such defendant appears to the suit, this Court will entertain it, although the defen- dant may be actually residing abroad, and the whole subject-matter of the suit, ultra the mere personal claim of the plaintiff, may be in a foreign country and out of the jurisdiction of the Court. A Scotchwoman was married, according to the law of Scotland, to X, whose domicil of origin was English. The husband and wife then joined in executing two Scotch " instruments, purporting to charge the wife's reversionary interest in her Scotch realty with the payment of a debt due from the husband to a Scotch creditor. The wife was divorced by the law of Scotland, on the ground of her adultery ; after which she was married to Y, a domiciled Englishman. The wife's rever- sionary interest fell into possession ; and she and her second husband then filed a bill in this Court against X (who was residing out of its jurisdiction, but who appeared to the suit), praying a decree for the payment of the debt, or for the exoneration by him of the wife's Scotch realty therefrom : — Held, that the plaintiffs were entitled to the relief which they sought. Drummond v. Drummond, 87 Law J. Eep. (n.s.) Chanc. 811. (D) OvEE Persons out of the JuSisdiotion. 6. — A native of Cape Coast Castle, against whom a judgment had been recovered in the colo- nial Court, having failed in an appeal before the Governor and Legislative Council in the colony, declared himself an insolvent, and placed his pro- perty in the hands of the assignee, who proved the judgment debt under the insolvency, but after- wards left the colony, without having fhlly realised the assets. Two other assignees, E & M, were appointed to act in his place. Pending the colo- nial insolvency, the insolvent filed a bill in this Court against the assignees, alleging the judgment in the colonial Court to be erroneous, and praying that, upon his giving a proper indemnity, the de- fendants might be ordered to prosecute an appeal to Her Majesty in Council against such judgment, or to permit the use of their names for the pur- pose ; also alleging that the defendants, in refusing to appeal, were acting for their own interests, and in collusion with the judgment creditors (whuse agents E & M were), and that if the judgment were got rid of, there would be a surplus of assets, after paying all the creditors in flul. M being out of the jurisdiction of the Court, E (who was now in England, with the assets in his hands) demurred to the bill, on the ground of want of equity and want of jurisdiction : — Held, that this Court could not assume jurisdiction, there being no sufficient averment on the face of the bill that the plaintiff was without remedy in the Courts of his own country. Demurrer allowed. Smith V. Moffiiti, 35 Law J. Eep. (n.s.) Chanc. 219; Lot Eep. 1 Eq. 397. Q a 2 300 JUEISDICTION IN EQUITY (D), (H). 7. — The Court has power in any suit to order service of a copy of the bill and interrogatories upon a defendant who is out of the jurisdiction, and not merely in suits relating to such subject- matters as are mentioned' in the 2 & 3 Will. i. c. 33, and the 4 & 6 Will. 4. c. 82. Brummimd v. Srurmnond, 36 Law J. Eep. (n.s.) Chanc. 780, and 36 Law J. Eep. (n.s.) Chanc. 163 ; Law Eep. 2 Chanc. 32. Coohney v. Anderson, 32 Law J. Eep. (n.s.) Chanc. 427 ; 1 De Gex, J. & S. 389. Foley y. MaU- lardet, 33 Law J. Eep. (n.s.) Chanc. 336 ; 1 De Gex, J. & S. 389! Samuel v. Rogers, 1 De G-ex, J. & S. 396, overruled. Ibid. By the 33rd Order of the 8th of May, 1846, having, under the 3 & 4 Vict. u. 94, and the 4 & 5 Vict. 62, the force of parliamentary enactment, power was given to the Court in all suits to order service of a subpoena upon a defendant residing abroad. The 16 & 16 Vict. c. 86 abolished the subpoena, and substituted for it the service of a copy of the bill, and empowered the Judges of the Court to make general rules and orders for carry- ing the purposes , of the Act into eiiect, and for regulating the times and mode and form of pro- cedure. By the 7th rule of the 10th of the Con- solidated Orders, the Court is authorised to order service of a copy of the bill upon a defendant residing abroad : — Held, that this, being only an adaptation of the practice to the existing course and form of procedure, was an order which it was within the power of the Judges of the Court to make. Ibid. 8. — If a foreign government violates a contract entered into with British subjects resident in England, the Court cannot in the absence of that government apply its property in this country to the relief of the injured parties, Smith v. Wegiidin, 38 Law J. Eep. (n.s.) Chanc. 465 ; Law Eep. 8 Eq. 198. A loan contracted by a foreign state by its agent in this country is a foreign contract. Ibid. A foreign company, under a contract with- a foreign government, held the surplus proceeds of guano shipped to this country remaining after the satisfaction of certain prior charges at the disposal of that government. The foreign government contracted a loan by its agent at this court, to be secured by hypothecation of the guano shipped to this country. The foreign government did not appear : — Held, that the Coiirt of Chancery could not direct the guano shipped to this country to be applied according to the terms of the hypotheca- tion. Ibid. (E) Under paeticulae Acts of Paeliament. (a) Under Sir John Bolt's Act, 25 # 26 Vict. c. 42. [See Injunction, and see No. 3 supra.] (b) To award damages under Sir Hugh Cairns' Act, 21 # 22 Vict. V. 27. (1) /» suits for injunction. [See Injunction.] (2) In suits for specific performance. [See Specific Peefoemancb.] (F) In geneeax. In oases of amount. [See Account.] To grant injunction. [See Injunction.] To execute trusts of composition deed. [See Composition Deed, 111.] To set aside deed on the grownd of mistake. [See Waivee; Vbndob and Pue- CHASEE, 3.] To grant relief against fraud, mistake; ^c. [See Feaud (B) ; Undue In- fluence.] In partition suits, [See Paetition.] In winding-^ cases. [See Company (F) In respect of infants. [See Infants.] fn patent cases, [See Patent (K).] 9. — The lessee of certain leasehold premises, which a railway company had given notice they were about to take for the purpose of the railway, claimed a future right of renewal of the lease. The company, who disputed this right, entered into possession of the land under an agreement for the payment of compensation in respect of the lessee's interest in the existing term, without prejudice to her claim in respect of the future right. Upon bill filed by the lessee to establish her right of renewal ; — Held, on demurrer, that inasmuch as the Lands Clauses Consolidation Act contained no machinery for settling such a question, and the plaintiff had no remedy elsewhere, the Court had jurisdiction. Bogg v. The Midland BaUway Com- pany, 36 Law J. Eep. (n.s.) Chanc. 440; Law Eep. 4 Eq. 310. 10. (G) OUSTEE OF JUEISDICTION. -The jurisdiction of the Court is not ousted by a submission to arbitration until the award is made. Quaere — Whether a covenant not to sue until the award is made would oust the jurisdiction. Cooke V. Cooke, 36 Law J. Eep. (n.s.) Chanc. 480 ; Law Eep. 4 Eq, 77. By agreement to refer to arbitration. [See Eailwat Company, 20, 21.] (H) Geneeai peinciples govbening the EXEECISE OF. 11, — The maxim " he who seeks equity must do equity " includes the rule at l.iw, which in all suits upon contracts, either for specific performance or for damages, guides to discriminate whether an alleged breach of the duty of the plaintiff under the contract is a bar to the suit ; such breach will be a bar, when it goes to the whole of the con- sideration, for the promise sued on, but not where there is only a partial failure of consideration which can be recovered in a cross-action. Oxford v. Provand, Law Eep. 2 P. C, 136. [And see Injuijction, 43.] JURY— JUSTICE OP THE PEACE (A). 301 JUEY. [24 & 26 Vict. e. 66, amended 30 & 31 Vict. c. 35.] Jwy Act : challenge. [See Tbbason.] Costs of good jury. [See Costs at Law, 37.] Jury de medietate lingua : Peremptory chal- lenge. [See Colonial Law, 37.] Omission to summon jury. [See Pbactice AT Law, 62.] Withdrawal of juror. [See Pbactice at liAW, 41.] Discharge of jury : trial for murder. 1. — A jury sworn and charged with a prisoner may be discharged without giving a verdict by the presiding Judge, if a "necessity," that is, a high degree of need, for such discharge is made evident to the mind of the Judge. He alone is to decide when the " necessity" for such discharge is made evident to his mind, and his decision is not subject to review by any legal tribunal. The statement upon the record by the Judge of the result of such a decision is sufficient to establish the lawfulness of the discharge. Such a discharge, even if it be an improper exercise of discretion on the part of the Judge, is not a legal bar to a subsequent trial of the prisoner for the same offence, either upon the same or upon a fresh indictment. If two prisoners be jointly indicted, and one alone be given in charge to the jury, the other is an admissible witness (though neither acquitted nor convicted, and though a nolle prosequi is not entered) upon the trial of the prisoner with whom the jury are charged. A record shewed that on the trial of W and H, who were jointly indicted for murder, the jury, ' after five hours' deliberation, at five minutes before midnight on Saturday night, were discharged by the Judge vrithout giving a verdict, and without the consent of the prisoner or of the prosecution, on .the ground that he, the Judge, for certain reasons, which he stated, " decided that it was necessary to discharge the jury." W was after- - wards given in charge to another jury, and tried alone upon the same indictment, when a verdict of guilty was returned, and judgment of death re- corded; H being admitted as a witness against her without having been either acquitted or con- victed upon the indictment, and a nolle prosequi not having been entered : — Held, affirming 'the judgment of the Cotirt below, 35 Law J. Rep. (n.s.) Q. B. 121, on a writ of error, that there was no error on the record. Conway and Lynch T. The Queen, Ir. Law Rep. 149, oveiruled. Held, also, that the question of the admissibility of H did not arise upon the record ; but that if it had arisen, and if the question of her admissibility could have been inquired into, she was admissible. Semble, per Pollock, C.B., and Martin, B. — That a Judge has the power, in his discretion, to give refreshments to a jury, either before or after they have retired to consider their verdict. Charlotte Winsor, ^plaintiff in error, v. The Queen, defenS,- ant in error, 36 Law J. Rep, (n.s.) M. C. 161 ; 6 Best & S. 490 ; Law Rep. 1 Q. B. 390 : 35 Law J. E«p. (n.s.) M. C. 121 ; 6 Best & S. 143 ; Law Rep. 1 Q. B. 289. Special jury ; discretion of Judge at chambers. 2. — Where a Judge at chambers has refused an application for a special jury, the Court will not interfere with the discretion of the Judge, in the absence of special grounds. Smith v. The London and St. Katherine's Sock Company, Law Rep. 2 C. P. 630. JUSTICE OF THE PEACE. [See Bastaedy, Fkibndlt Society, Game, Highway, Indictment, Larceny, Luna- tic, 16, Mandamus, Nuisance, Peison, Sessions, Weights and Measuees.] (A) Disqualification. (B) Jueisdiction. (ffl) Binding over to give evidence. (A) Expenses of fecial constables, (c) Committal of defaulting overseer, (a) Discharge of clerk of the peace, ie) Convictions : several offences. If) Issue of distress warrant, (g) Parish houses, (h) Power to administer oath, (i) Second sentence to commence at expira- tion of first, (k) Ouster of jurisdiction : question of title. (C) Duty of taking Recognisance. (D) Borough Justices : Appkopkiation op Penalties. (E) Appeal from JusTici;s. (a) Xb Quarter Sessions. (b) Transmission of case to superior Court, (A) Disqualification. 1.— ^Any direct pecuniary interest, however small, in the subject-matter of inquiry, disquali- fies a Justice from acting judicially in the matter, but the mere possibility of bias in favour of one of the parties does not ipso facto avoid the Justice's decision. The corporation of B were the owners of water- works, and were empowered by statute to take the water of certain streams without permission of the millowners on their obtaining a certificate of Jus- tices that a certain reservoir was properly com- pleted, ^ of a given capacity, and filled with water. An application was made to Justices accordingly, which was opposed by the millowners ; but, after due inquiry, the Justices granted the certificate. Two of the Justices were trustees of an hospital and friendly society respectively, each of which had lent money to the corporation on bonds charging the corporate fund. Neither of the Jus- tices could by any possibility have any pecuniary interest in those bonds ; but the security of their cestuis que trustent would be improved by anything improving the borough fund, and the granting of the certificate would indirectly produce that eftect, as increasing the value of the waterworks ; there was no -ground to doubt that the Justices had acted bon& fide : — Held, that the Justices were not disqua- lified from acting in the granting of the certificate, and the Court refused a certiorari for the purpose 302 JUSTICE OF THE PEACE (B). of quashing it. The Queen v. Band and others, 35 Law J. Eep. (n.s.) M. C. 167 ; 7 Best & S. 297 ; Law Kep. 1 Q. B. 230. 2. — By a provision in the Eailways Clauses Act, a Justice of the Peace, who has summary jurisdiction given to him in certain matters under ' that Act, is not to be interested in such matter : — Held, that the insertion of the clause to disqualify an interested Justice from acting was intended to have no greater effect than would have been sup- plied by the common law without it ; and there- fore it was competent for the parties at the hearing of an information before an interested Justice to waive the objection, and so render an order made by such Justice valid and binding upon them. The Wakefield Local Board of Health, appellants, V. The West Biding and Grimsby Eailway Com- pany, respondents, 35 Law J. Eep. (n.s.) Q. B. 84; Law Eep 1 Q. B. 84. (B) Jurisdiction. (a) Binding over to give evidence. 3._By 11 & 12 Will. 3. c. 12 and 42 Geo. 3. c. 85, offences committed out of Great Britain by governors of colonies and of&cers of the government under colour of, or in exercise of their of&ces, may be prosecuted or inquired of, heard and determined in His Majesty's Court of King's Bench here in England, either upon information or indictment ; and the offence may be laid to have been committed in Middlesex: — Held, that the power conferred upon Justices by 11 & 12 Vict. c 48. ss. 2, 17, 20, of binding over the prosecutor and witnesses to prosecute or give evidence against any person charged with an indictable offence, com- mitted on land beyond the sea, at the next court of oyer and terminer or gaol delivery, or superior court of a county palatine, or Court of General or Quarter Sessions of the Peace, extends to cases where the case is one of those specified in 42 Geo. 3. c. 85, and that the description " court of oyer and terminer," in 11 & 12 Vict. c. 32, s. 20 ap- plies to the Court of Queen's Bench. The Queen V. Eyre, 37 Law J. Eep. (n.s.) M. C. 159 ; Law Eep. 3 Q. B. 487. (b) Expenses of special constables. 4. — ^Where an order made by three Justices of a petty sessional division of a county, on the county treasurer, for the payment of the expenses of special constables, who had been called out and had served in such division, under the 1 & 2 Will. 4. u. 41, has been obeyed by the treasurer, and the expenses have been incurred, the money paid, and the item allowed in his accounts, the Court will not issue the writ of certiorari for the purpose of quash- ing the order, upon grounds affecting the regularity of the pujceedings in respect of the appointment of the constables, or the making of the order. The Queen v. Lord Newborough and others, 38 Law J. Eep. (n.s.) M. C. 129 ; 10 Best & S. 686 ; Law Eep. 4 Q. B. 585. Semble — That such an order should only be made at a special sessions of the Justices of the division, &c. summoned for the particular purpose of making such order, and not at an ordinary petty or special sessions. Semble further — That such an order is in the nature of a direction to the ofiftcer of the Justices, and need not shew on the face of it that the Justices signing it had jurisdiction to make it. 5. — Under the Act for the amending the laws relating to the appointment of special constables, — which, by section 13, enables the Justices of the Peace, acting for the division or limits within which such special constables shall have been called out to serve, at a special session to be held for that purpose, to order the expenses of such special constables, if the Justices so ordering are Justices for any county, riding or division having a separate commission of the peace, to be paid by the county treasurer Out of the public money then in his hands, — the order for payment may be made by Justices at a special session in and for a petty sessional division, and need not be made at a special session of Justices acting for the whole county, riding, or division within which special constables are appointed. The Queen v. The Justices for Marylebone, 37 Law J. Eep. (n.s.) M. C. 181. (c) Committal of defaulting overseer. 6.- — A poor law auditor, on the 14th of April, 1868, eertiiied, under sect. 32 of the 7 & 8 Vict. c. 101, that a sum of money was due from J, an overseer of the poor. J did not pay over the money within seven days, and proceedings were taken, under sect. 99 of the 4 & 5 Will. 4. c. 76, to recover the money so certified to be due. At the hearing before the Justices, on the 18th of May, J set up as a defence, that he had been dis- charged, on the 11th of May, by the Court of Bankruptcy, on an adjudication dated the 4th of January : — Held, that the debt being extinguished by the bankruptcy, the Justices had no jurisdic- tion under the 99th sect, to order that J should be committed to the gaol or house of correction. Semble — That the non-payment of the money certified to be due created a debt, and was not an " offence " in respect of which the power of com- mitment was given by the said section. The Quetn V. Master and another. Justices of Gloucestershire, 38 Law J. Eep. (n.s.) M. C. 73 ; Law Eep 4 Q. B. 285. (d) Discharge of clerk of the peace. 7. — A contumacious refusal by a clerk of the peace to record an order of the Court of Quarter Sessions is a misdemeanor in the execution of the office of such clerk within the meaning of sect. 6 of 1 W. & M. c. 21 , and for which therefore the Justices may discharge him from such oiBce. Where a judgment of the Court of Quarter Sessions shewed that charges in writing, under tlie 1 W. & M. c. 21, had been exhibited before such Court against the clerk of the peace, alleging that he had wilfully and contumaciously refused to enter and record a certain order of that Court, ordering certain costs incurred by the Justices to be paid, and that having heard the same and what the clerk had to allege in defence, the said Court had adjudged the charges to be proved, and had adjudged such clerk to be guilty of the misde- JUSTICE OF THE PEACE (B). 3U3 meanor in his office with which he was so charged, and had on account thereof dismissed hina from his said office : — HeW, that such judgment, being good on the face of it, was conclusiTe, and could not be reviewed by a jury in an action by such clerk against a subsequently appointed clerk to try the right to the fees of the office. Held, also, that such judgment could not be impeached in such action, on the ground that the Justices who had adjudged had a pecuniary interest in the order being recorded which the clerk had so refused to record, nor on the ground that the charges against the clerk had been exhibited at the instigation of the Justices who afterwards adjudged him guilty thereon. Wildes V. Eussell, 35 Law J. B.ep. (n.s.) M. C. 241 ; H. & E. 689 ; Law Eep. 1 C. P. 722. (e) Convictions: several offences. 8. — When a person is charged before Justices with having committed several offences, in respect of which they, have summary jurisdiction to pass sentence of imprisonment, and is convicted by them, they may, if they please, sentence him to be imprisoned for one or more of such offences, and to be further imprisoned, after the expiration of such term of imprisonment for a further term in respect of another offence. The Queen y. Cutbush and another. Justices for the Borough of Maid- stone, 36 Law J. Eep. (n.s.) M.C. 70 ; Law Rep. 2 Q. B. 379 ; and see No. 12 infra. (/) Iss2ie of distress warrant. 9. — A local Act provided that if any person rated under its powers should for ten days after demand neglect to pay the rate, it should be law- ful for any Justice of the Peace of the borough, by warrant under his hand and seal, to authorise the collector to levy the rate by distress and sale : — Held, that the issuing of a warrant under this Act was not within the limitation of Jervis's Act, 11 & 12 Vict. c. 43, s. 11, which enacts that, in the absence of special limitation, complaints under the Act are to be made within six months from the time when the matter of complaint arose. Semble — That, upon application for such a war- rant of distress as above mentioned, the Justices may state a ease for the opinion of the Court, imder 20 & 21 Viet. e. 43, s. 2. Sweetman v. Chuest, 37 Law J. Eep. (n.s.) M.C. 69 ; Law Eep. 3 Q. B. 262. {g) Parish houses. 10. — At the hearing of an information and complaint made by parish officers, under 59 Geo. 3. 0. 12, B, 24, for the purpose of obtaining posses- sion of a house alleged to be the property of the parish, the Justices are not precluded from in- quiring into the matter, and determining thereon, by reason of its being alleged that the house was the property of the person informed, against, or of the person by whom he was put into possession. And if, after the hearing, the Justices determine that a warrant should be issued to deliver up pos- session, and issue their warrant accordingly, this Court will not, on the ground of such an allega- tion having been made, interfere with their deter' mination. Ex parte Vaughan, 36 Law J. Rep. (n.s.) M.C. 17 ; Law Eep. 2 Q. B. 114. (h) Power to administer oath. 11.— By section 52 of the 55 Geo. 3. c. 184, affidavits required by that or any former or future Act to be made for the satisfaction of the Commis- sioners of Stamps, " shall in all cases not other- wise expressly provided for " be made before such Commissioners or certain other specified persons, of whom a Justice of the Peace is not one. By section 7 of 9 Geo. 4. c. 23, " any Justice of the Peace is empowered to administer" the oath to the " cashier, accountant, or chief clerk" of a bank, for certain affidavits required by the Com- missioners of Stamps : — Held, that the power in the latter Act is cumulative and additional, not exclusive, and that the authority to administer the oath given by the earlier Act, is not taken away by the later Act. Any one employed in a bank under the princi- pals to carry on the business of the bank, whether called secretary, manager, accountant, cashier, or by any other name, is a clerk, and if at the head of his department, is a " chief clerk " within the meaning of section 7 of 9 Geo. 4. c. 23. The Queen v. Edward Greenland, 36 Law J. Rep. (n.s.) M. C. 37; Law Rep. 1 C. P. 66. (i) Second sentence to commence at expiration of first. 12.— By statute 11 & 12 Vict. c. 43, s. 25, where Justices upon summary conviction " ad- judge the defendant to be imprisoned, and such defendant shall then be in prison undergoing imprisonment upon a conviction of any other offence," they may award that the imprisonment for such subsequent offence shall commence at the expiration of the imprisonment to which such defendant shall have been previously adjudged or sentenced. The defendant was convicted by Justices of an offence under the Vagrant Act, 6 Geo. 4. t. 83, d. 4, and remanded, and being brought up again, was convicted by them of three other similar offences under the Act ; he was then sentenced to three months' imprisonment for three of the offences, and to a further period of three months for the fourth, to commence at the expi- ration of the first term : — Held, that whether the Justices could or could not at common law or un- der statute 6 Geo. 4. c. 83, s. 4, make the second sentence commence at the expiration of the first, they had power to do so under statute 11 & 12 Vict. c. 43. n. 25. Be Paine, 8 Best & S. 319. {k) Ouster of jurisdiction : question of title, 13. — (1) The rule which ousts Justices of the Peace from entering upon a question of title does not apply where title is an essential element in the inquiry, and the application of the rule would deprive them of jurisdiction to enter upon /(. (2) When the facts to be proved are of (ie very essence of the inquiry, &c. there is evidence before 304 JUSTICE OF THE PEACE (C), (E)-LANDLOED AND TENANT (A). the Justices on both sides, this Court will not interfere with their decision, simply because they think it would have been better if the Justices had decided differently. (3) In February, parish officers gave M, who occupied a parish house, notice to quit. Before the expiration of the notice, V, by whom M had been let into possession, and who claimed title to the house, received possession of it from him, and let it to W. On the 4th of April the parish officers, upon complaint to Justices under statute 69 Geo. 3. u. 12, o. 24, obtained a summons against M for refusing to deliver up possession. On the hearing neither M or V, who had knowledge of the notice given to M, appeared, and the Justices issued their warrant, under which the churchwardens and over- seers were put into possession : — Held, that the Justices had jurisdiction 'to issue their warrant, notwithstanding the claim of title. Begina v. Mien, 7 Best & S. 902. (C) Duty of : taking Eecognisance. 14. — If an information disclose no indictable oifence a magistrate has a discretion to refuse to take the recognisance of the prosecutor even where he also refuses to commit or bail the person charged. Exparte )Taso», 38 LawJ.E6p.(N.s.)Q.B. 302 ; 10 Best & S. 580 ; Law Eep. 4 Q. B. 573. (D) BoKOUQH Justices : Appeopeiatiok op Penalties. 15. — Penalties imposed by Justices acting in and for a municipal borough, having a separate commission of the peace but no separate Court of Quarter Sessions, in respect of offences against the general law of thS land, are, under 11 & 12 Vict, c. 43, s. 31, to be paid to the treasurer of the county and not of the borough. Penalties im- posed by such Justices, under 9 Geo. 4. e. 61, and not awarded to the prosecutor under section 20 of that Act, are to be paid to the treasurer of the county and not of the borough, notwithstanding the Municipal Corporations Act Amendment Act, 1861, s. 4. Winn v. Mossman, 38 Law J. Eep. (n.s.) Ex. 200 ; Law Eep. 4 Ex. 292. 10,_By 11 & 12 Vict. c. 43, s. 31, the amount of any penalty ordered to be paid by Justices according to the Act is to be paid, in the absence of specific directions in the statute on which the information shall have been framed, to the treasurer of the county, riding, division, liberty, city, borough or place for which the Justices shall have atced. A borough formed part of the petty sessional division of the county within which it was situated, but had no separate Court of Quarter Sessions, the Justices for the county acting as Justices for the borough, concurrently with the mayor, according to the Municipal Cor- porations Act, 5 & 6 Will. 4. c. 76, s. 57, and there was a treasurer of the borough : — ^Held, that the mayor, while acting as Justice for the borough, was in the nature of a Justice for the county with powers limited to a special locality, and that penalties im- posed by the borough Justices must, in the absence of directions in the penal statute, be paid to the county treasurer. The Mayor, Aldermen and Bur- gesses of Bdgate v. Hart, 37 Law J. Eep. (n.s.) M. C. 70 ; 9 Best & S. 129 ; Law Eep. 3 Q. B. 244. (E) Appbai, peom Justices. (a) To Quarter Sessions. 17. — An appeal from Justices to Quarter Ses- sions is in the nature of a new trial, and fresh evidence is admissible on the hearing of the appeal. The Queen v. HdU, 36 Law J. Eep. (n.s.) M. C. 261 ; 7 Best & S. 642 ; Law Eep. 1 Q. B. 632. (6) Transmission of case to superior Court. 18.— By Stat. 20 & 21 Vict. e. 43, sect 2, a party appealing from the determination of Justices" shall, within three days after receiving the case, transmit it to the superior Court. A case was received by the appellant on Good Friday, who transmitted it to the Court on the following Wed- nesday : — Held, that, the offices of the Court being closed until Wednesday, the case was duly trans- mitted. Mayer v. Harding, 9 Best & S. 27, note (a) ; Law Eep. 3 Q. B. 410. LANDLOED AND TENANT. [See Covenant; Lease.] (A) The Tenancy. (ffl) To corporation : agreement not under seal. (6) Special stipulations. (c) Notice to quit. (1) By cestui que trust. (2) ^ect of waiver of. (d) New tenancy : how constituted. (B) Eent. (a) Payment before due. (b) Distress for. (1) Right to distrain, (i) How given. (ii) Effect of composition deed by tenant. (iii) Where tenancy determines on death of landlord. (c) What amounts to a distress. (d) Mode of distraining : opening window, (e) Costs of distress. (C) Expendituee of Tenant on faith op Landlord's Pkomise. (D) Encroachment bt Tenant. (E) Holding ovek. (ffl) By under-tenant. (b) Receipt of rent by remmnierman. (F) Fixtures. (A) The Tenancy. (a) To corporation ; agreement not under seal, 1. — By an agreement, expressed to be made by a corporation by their agents on their behalf and the defendant, the corporation agreed to let to the defendant and the defendant to take Certain pre- LANDLORD AND TENANT (A), (B). 305 mises for three years ; and the defendant also agreed to put and maintain the premises in tenant- able repair, and to deliver them up at the end of the term. The deed was executed by the plain- tiffs' agents and by the defendant, but the corpora- tion seal was not affixed. The defendant occupied for the term and held over afterwards, paying the rent received : — Held, following Wood v. Tate, 2 Bos. & P. N. B. 247, that, although the agree- ment was'not under seal, the occupation and pay- ment of rent admitted a tenancy from year to year under the corporation, and that on such tenancy being determined by regular notice to quit, the defendant was liable on an implied pro- mise to deliver up the premises in tenantable repair. The Ecclesiastical Commissioners of England v. Merrall, 38 Law J. Rep. (n.s.) Ex. 93; Law Rep. 4 Ex. 162. (6) Special stipulations. 2. — ^A stipxilation on the occasion of a weekly letting, that, after the expiration of such tenancy by the usual week's notice, the tenant shall have a reasonable time for the removal of his goods, is a valid stipulation and operates as an extension of the term, so as to give the tenant a right to enter and do what is necessary for such removal. Where it is part of the terms of a tenancy cre- ated by parol that the tenant shall be allowed to place goods on land not comprised within the let- ting, the tenant, who has acted upon such licence, thoiigh the same was not by deed, and was after- wards revoked by the determination of the tenancy, has a right to go and remove the goods he has so placed Siere, and is entitled to have a reasonable time to do so. If on the death of the landlord the tenant who has held on such terms as above, continues in pos- session, and pays the same rent to the landlord's successor, it is evidence that the latter has assented to the tenant continuing on all the said terms of the original letting. Cornish v. Stubbs, 39 Law J. Rep. (N.s.) C. P. 202 ; Law Rep. 6 C. P. 334. («) Notice to qmit. (1) 5y cestui que trust. 3.— If the trustees in whom the legal estate in a farm is vested have authorised the cestui que trust to give to the tenant of the farm a notice to quit, such notice given by the cestui que trust to the tenant is pot bad by reason of its being given in his own name, and not purporting to be given by him as agent of the trustees. The dictum in Doe d. Lyster-v. Goldwin, 2 Q. B. Rep. 143; 10 Law J. Rep. (n.s.) Q. B. 275, to a contrary effect, dissented from. Jones and two others v. Phipps, 37 Law J. Rep. (n.s.) Q.B. 198 ; 9 Best & S. 76 ; Law Rep. 3 Q. B. 567. (2) Effect of waiver of. 4. — The effect of waiving a notice to quit given to a yearly tenant is to create a new tenancy ; and consequently, a guarantor of the rent under the original tenancy is not liable for rent becoming due after the time when the notice should have expired. Tayleur v. Wildin, 37 Law J. Rep. (n.s.) Ex. 173 ; Law Rep. 3 Ex. 303. Digest, 1865-70. (d) New tenancy : how constituted. 5.— The defendant granted to T and W E a lease of a farm for fourteen years, the lease con- taining a covenant by him to pay for certain matters at a valuation, at the termination of the demise. The lease also contained a covenant by the lessees that they would not assign the farm, or any part thereof, without the consent in writing of the lessor, and also a proviso that in case of an assignment the lessor might re-enter. After the expiration of the fourteen years, T and W E con- tinued to hold the farm, and subsequently, without the knowledge or consent of the defendant, as- signed to the plaintiff all their interest in the farm. Before the defendant heard of this being done, he served T and W E with a proper notice to quit, and shortly afterwards received a notice from the plaintiff that he intended to leave. Be- yond receiving this last-mentioned notice, the de- fendant did nothing to recognise the plaintiff, either as assignee or as tenant, and denied the right of the plaintiff to have a settlement with him. A valuation having been made, the plaintiff brought an action for the amount :— Held, by Mellor, J. and Lush, J., that the plaintiff could not recover, as there was nothing to establish a new relation of landlord and tenant between him and the defendant. Elliott y. Johnson, 36 Law J. Rep. (n.s.) a. B. 44 ; 8 Best & S. 38 ; Law Rep. 2 a. B. 120. So held by Shoe, J,, but upon the ground that T and W E had no right to assign their interest without the consent of the defendant, and there- fore that the plaintiff acquired no rights under the assignment. 6. — The plaintiffs acquired certain lands for the purposes of their railway, but, not wanting it. let it from year to year to B ; in consequence of their neglect to sell it, the Lands Clauses Consoli- dation Act, s. 127, became applicable ; this section provides thaton failure to sell superfluous land with- in a certain time such land shall vest in the owner of the adjoining land ; the adjacent landowner did not interfere, and B continued tenant till his tenancy was determined by notice to quit ; before this he had let to the defendant, who refused to go out on the ground that the plaintiffs' title had ceased : — Held, that whatever was the effect of the above section there was evidence of B holding under a new tenancy from year to year, after such section became applicable, that he therefore would have been estopped from disputing the plaintiffs' title, and that therefore the defendant was also estopped. London and North- Western Railway Covipany v. West, 36 Law J. Rep. (n.s.) C. P. 245 ; Law Rep. 2 C. P. 553. Evidence of yearly tenancy. [See Powee, 4.] Tenancy by estoppel. [See Attornment, 2.] (B) Rent. (a) Payment before due. 7. — A payment of rent by a tenant to his landlord betore the day when it becomes due, RR 306 LANDLOED AND TENANT (B). ia not a payment of rent 'within the meaning of 4 Ann. o. 16. s. 10, and the tenant is not by reason of such payment discharged of his obligation to pay such rent to a persgn whom the landlord has previously assigned the reversion, if he receive notice of such assignment before the rent becomes due. De Nicole v. Saimders and another, 39 Law J. Eep. (n.s.I C. P. 297 ; Law Eep. 6 C. P. 689. (b) Distress for. (1) Bight to distrain. (i) Horn given. 8. — Half a room in a factory partitioned off from the rest, with a supply of sufficient steam- power to drive certain lace-machines, was let to A at a fixed annual rent, subject to deductions for hindrances to the working of the steam-engine: — ■ Held, a sufficient demise to give a right of distress. Selby V. Greaves, 37 Law J. Eep. (n.s.) C. P. 251; Law Eep. 3 C. P. 694. 9. — By an agreement for the sale of a house and land, Tbl., part of the purchase-money, was payable on signing the agreement, and 1,500^., the remainder of the purchase-money, was pay- able, with interest, on a day certain ; and after stipulating for the delivery of an abstract of title and the time within which the title should be deemed accepted, the agreement stated that, as the purchaser was to be let into immediate possession, and for the purpose of securing the due perform- ance of the several agreements therein contained, the purchaser admitted himself to be a tenant from week to week to the vendor of the heredita- ments thereby agreed to be sold, at the weekly rent of 80^., payable in advance : — Held, that the agreement gave a right of distress to the vendor for the sum payable as a weekly rent. Yeomarl V. Ellison, 36 Law J. Eep. (n.s.) C. P. 326 ; Law Eep. 2 C. P. 681. Holding over. [See No. 4 supra.] [And see Fixtures; Moetgage, 2, 3; Metro- polis AND Local Management Acts, 4.] (ii) Effect of composition deed by tenant. 10. — After the registration of a valid deed of arrangement according to the Bankruptcy Act, 1861, a distress cannot be levied upon the effects of the debtor for more than one year's rent due prior to the date of such registration. Williams ■ atid another v. Gadhury and another, 36 Law J. Eep. (n.s.) C. p. 233 ; Law Eep. 2 C. P. 453. 11. — Where a deed registered under the Bank- ruptcy Act, 1861, 24 & 25 Vict. c. 134, is in the form given in the schedule to that Act, conveying the debtor's estate to a trustee"to be administered " in like manner as if the debtor had been at the date thereof duly adjudged bankrupt," the title of the trustee dates from the execution of the deed by the debtor, and consequently a distress for rent due from the debtor put in after such execution of the deed, though levied and satisfied before the registration of the deed under the Bankruptcy 'Act, 1861, is within section 129 of the Bankrviptcy Act, 1849, which restricts a landlord's distress tt) one year's rent in arrear. Selby v. Greaves, 37 Law J. Eep. (n.s.) C. P. 251 ; Law Eep. 3 C. P. 694. [And see Composition Deeds, 94.] (iii) Where tenancy determines on death of land- lord. 12.— By 14 & 16 Vict. .;. 26, s. 1, the tenant of a farm or lands whose tenancy determines by the death of his landlord, instead of claiming emble- ments, is to continue to occupy until the expiration of the then current year of his tenancy, and the succeeding owner is to be entitled to recover and receive of the tenant, in the same manner as the tenant's lessor could have done if he had been living, a fair proportion of the rent from the death of such lessor to the time of the tenant so quitting. The plaintiff occupied, as yearly tenant of A, who was tenant for life, a small labourer's cottage, with an acre of land, which was partly cultivated as a garden and partly sown with corn or planted with potatoes. The defendant became owner of the cottage and land on the death of A, and dis- trained for the proportion of rent due from the plaintiff in respect of such cottage and land between A's death and the expiration of the then current year of the plaintiff's tenancy up to which time the plaintiff remained in occupation. The Court, who were at liberty to draw infer- ences of fact, held that the plaintiff was tenant of lands in respect of which emblements might be claimed within the meaning of 14 & 15 Vict. c. . 25, s. 1, and that the defendant was entitled to recover such proportion of rent by distress. Haines v. Welch and another, 38 Law J. Eep. (n.s.) C. P. 118 ; Law Eep. 4 C. P. 91. (c) What amounts to a distress. 13. — The plaintiff let a piano to "W upon the terms that if he, W, paid i5l. he was to have it for his own. The money might be paid by certain instalments, and the plaintiff was to be at liberty to take possession of tl^e piano if default was made in the payment of the in.'italments. The piano was placed in a room which was hired by W of the defendant. After a time W allowed his rent to become in arrear, and also made default in payment of the instalments. The plaintiff sent his men, to demand and take possession of the piano. They had an interview with the wife of the defendant, as she was standing in the passage close to the door of the room in which the piano' was, and which was occupied by W. The defen- dant's wife told the men that she had instructions not to le' the piano go until the rent was paid. W was unable to pay the rent. The defendant having subsequently distrained the piano for the rent in arrear, sold it : — Held, in an action of trover for the piano, that if the defendant detained it for rent at the time the plaintiff demanded it, what was done amounted to a distress, and that the action could not be maintained. Cramer and others v. Mott, 39 Law J. Eep. (n.s.) Q. B. 172 ; Law Eep. 5 Q. B. 357. LANDLOED AND TENANT (B), (E). 807 {d) Mode of distraining : opening window. 14. — 1. A landlord is not entitled, for the pur- pose of distraining for rent, to opan the window of a house which ia shut but not fastened. 2. Where another person at the suggestion of the landlord opened a window and entered the house, and then opened the outer door, through which the landlord entered and distrained : — Held, that the distress was unlawful. 3. Quaere — If the landlord had not been party to the original trespass. Nash v. Lucas, 8 Best & S. 631 ; Law Eep. 2 Q. B. 590. (e) Costs of distress. 15. — A person cannot be convicted in the treble penalty imposed by 57 Geo. 3. s. 2 for -taking or retaining any higher or other charges attending the levy and disposition of a distress for rent or rates not exceeding 201., than those meutioned in the schedule ; unless he has charged for an item not mentioned in the schedule, gr at a higher rate, or for something not actually done. He cannot be convicted for charging for an unnecessary- item, such item being in the schedule. Nott v. Bound, Law Eep. 1 Q. B. 406. (C) ElPBNDITDKB BY TeNANT ON FAITH OP Landlord's Peomise. 16. — The plaintiffs, under an agreement for a lease from the defendant, entered into possession of land near a canal belonging to the defendant, and erected thereon copperworks, for which a sup- ply of water was essential, and they remained for many years in possession under an understanding that so long as they were good customers of the canal they might use the waste water from it for the purposes of their works, and the plaintiffs had constructed a culvert to bring the water, and had used it with the defendant's knowledge. On a bill to establish plaintiffs' right to use the water of the canal for their works, it was not shewn that the water from this particular source was absolutely essential to the works, and under the circumstances of the case it was Held, that the understanding between the plaintiffs and the landowner did not come within the principle under which a landlord permitting his tenant to expend money on his land on the faith of his piomise to give the tenant an interest therein, will be compelled to give effect to that promise. ' Apportionment of costs where plaintiff partly succeeds and partly fails. Bankart v. Tennant, 39 Law J. Eep. (n.s.) Chanc. 809 ; Law Eep. 10 Eq. Ul. (D) Encboachment bt Tenant. 17, — ^Where a tenant has inclosed waste land during his tenancy, the intervention between such inclosed land and the demised premises of a brook or small river which is fordable by cattle during dry weather, is not sufficient to rebut the presump- tion that the inclosed land should be considered as part of the holding, so as to go to the landlord on the termination of the tenancy. The Earl of Lisbume v. Davies, 35 Law J. Eep. (n.s.) C. P. 193 ; H. & E. 172; Law Eep. 1 C. P. 269. 18. — The presumption of law that the posses- sion by a tenant of a piece of land lying between the land of which he is tenant and the high road, is as teuant of his landlord, does not apply where it is shewn that the lessee was in possession of the piece of land before he became lessee, and had never paid rent for it. The original adverse pos- session would continue, in the absence of circum- stances to prove the contrary. Dixon v. Baty, Law Eep. 1 Ex. 259. (E) Holding over. (a) By under-tenant. 19. — The defendant held a house and premises as tenant of the plaintiff, but without any lease or written agreement. He let part of the house to T, and, having received notice to quit on the 26th of December, ] 866, he gave notice to T to quit on the 21st of December. T refused to go out ; the defendant did all in his power to give up posses- sion. The plaintiff brought an action of ejectment against him and T; judgment was signed on the 21st of May, 1867, and on the 29th of May pos- session was given by the sheriff to the plaintiff: — Held, that the plaintiff was entitled to recover rent for one half-year, and also the costs of the ejectment, on the ground that there was an implied contract that the defendant would deliver up the absolute possession of the house and premises at the expiration of the tenancy. The declaration contained a special count, al- leging that the defendant was tenant upon the terms that he should at the determination of the tenancy give up possession to the plaintiff; that the tenancy was duly determined, yet that the defendant did not give up possession, whereby, &c. The defendant pleaded to this count, payment of 40s. into Court : — The Court, being of opinion that, under the circumstances of the case, the defendant could not have intended to admit that the plaintiff was en- titled to recover more than the sura of 40s., inti- mated that it would, if necessary, allow such an amendment as would leave the defendant at liberty to deny that there had been a breach of the con- tract alleged in the count. Henderson v. Squire, 38 Law J. Eep. (n.s.) Q. B. 73 ; 10 Best & S. 183 ; Law Eep. 4 Q. B. 1 70. (J) Receipt qf rent by remainderman. 20. — Where a tenant for life granted a lease to a nurseryman containing (among others) a cove- nant that the lessor should, at the expiration of the term, pay for all fruit-trees upon the premises planted by the lessee, at a fair valuation, and at the expiration of the term the lessee hfcld over as tenant from year to year, and on the death of the tenant for life the tenant from year to year con- tinued the occupation of the land, paying the s'a.ma rent to the remainderman, the latter being igno- rant of the existence of the covenant : — Held, that the receipt of rent by the remainderman, under the circumstances, was no evidence of a holding over under the terms of the lease so as to render it incumbent on the remainderman to take the B.R2 308 LAND IMPBOVEMENT ACT— LANDS CLAUSES CONSOLIDATION ACT (A). fruit-trees at a valuation on the termination of the tenancy from year to year by notice to quit. Oakley v.'^Monolc, 35 Law J. Eep. (n.s.) Ex. 87 ; 4 Hurl. & C. 251 ; Law Eep. 1 Ex. 159. (E) Fixtures. [See that title.] LAND IMPROVEMENT ACT. [For the recovery of public money advanced un- der Irish Land Drainage Acts, 29 Vict. u. 26. o. 1.] That an agent of a latidowner may not be entitled to the benefit of the contract with a statutory land, drainage com- pany. [See Waters v. Earl of Shaftes- bury, Pbincipal and Ageht, 14.] LAND EEGISTRY ACT. 1. — When an owner of land, who sought to have it registered with an indefeasible title, had by deed entered into a person.il covenant with the owner of adjoining lands to make and repair a certain road, and in the same deed there followed a proviso that the costs of the road should be con- sidered " a charge in equity, and, as far as cir- cumstances would admit, at law also, upon the owners of the land " sought to be registered : — Held, that this did not constitute such a charge as would be entered on the register of title. The practice with regard to appeals from the Land Registry Office is for the Court to proceed on a certified statement of the Registrar. In re Drew's Estate ; Mason's Claim, 35 Law J. Rep. (n.s.) Chanc. 845 ; 35 Beav. 443 ; Law Rep. 2 Eq. 206. 2. — In 1867, in suits in Chancery it had been certified that a good title could be made to certain estates, and the estates were afterwards sold under orders of the Court, subject to a condition that the title should not be required prior to a private Act of Parliament which had vested the estates in trustees for the sale, and which recited the pre- vious certificate of good title made by the Court of Chancery : — Held, that the title up to the period for which it had been certified might be accepted without further examination as indefeasible for - registration. In re James Watney, 38 Law J. Eep. (n.s.) Chanc. 57. (B) Compensation. (a) For what damage. (1) Loss of trade profits. (2) Lands injuriously affected. (3) Vibration. (b) In respect of what interest. (c) Bight to compensation. (1) Under local Acts. (2) Equitable mortgagee. id) Assessment of dawMges and compen- sation. (1) Doubtful title. < (2) Damage by severance. (3) Valuation by surveyors. (e) Warrant to summon jury : sheriff in- terested. (/) Eight to recover. (1) Damages awarded. (2) Pwrchdse-money awarded. (S) Conservators of river, (i) Default to sv/mmonjury. (g) Offer of, and costs. (C) ApiLioATioN OF Compensation Money. (a) Discharge of incumbrances. (A) In land : rights of commoners. (c) Building. (d) Payment to trustees. (e) Paymerit out to dowress. (/) As between tenant for life and remain- derman. (g) On decease of tenant for life. Xfi) Interim investment. (i) Costs of petition for investment or payment. (1) Jurisdiction of Court of Chancery. (2) Costs of parties served. (3) Severed applications. (4) Part-owners. (5) Costs of application in various (6) Costa of abortive attempt. (7) Form of order ; taxation. (8) Transfer to credit of administration suit. (D) Holder oP Eentchaege : eight to dis- train. (E) SupERFLirous Lands. (a) What lands are superfiMous. (4) Lands within town, or used for building (c) Eight of presumption: adjoining owners. (F) Costs. / " LANDS CLAUSES CONSOLIDATION ACT. (A) Compulsory Powers op purchasing and taking Land. (a) Notice to treat, (1) Effect of (2) Form and requisites. {b) Part of a house or manufactory. (1) What is. (2) Form of decree against company. (c) Entry on land. (1) Where permanent. (2) Eight to enter under Hbth mitinn. •{A.) Compulsory Powers op purchasing and taking Land. (a) Notice to treat. (1) Eff^t of 1. — 1. A notice to treat fo* the purchase of land under the Lands Clauses Consolidation Act, 1846, 8 & 9 Vict. 0. 18, sect. 18, is a contract of pur- chase, whether given by trustees under an Act of Parliament for b. public purpose or by a company formed for a private speculation. LANDS CLAUSES CONSOLIDATION ACT (A). 309 'i. Declaration upon an . award made by a sole arbitrator under the Lands Clauses Consolidation Act, 18+5, 8 & 9 Viet. e. 18, stated, that under the Liwrpool Improvement Act, 1864, and the Acts incorporated therewith, the defendants were authorised to piu'cliase certain messuages and lands, and that the plaintiff was entitled to and interested in them as lessee in possession, and the defendants gave him a notice within the meaning of the Lands Clauses Consolidation Act, 184:5, to treat for the purchase thereof. The Court refused leave to plead either of the following pleas: (1) That the defendants were trustees for the public, and that the notice to treat was rescinded by them before anything was done under it, the plaintiff's interest not being beneficial for the public under the purposes of the Act. (2) An equitable plea to the same effect. Steele v. The Mayor, ^c, of Liverpool, 7 Best & S. 261. 2. — A notice to treat for the purchase of land under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. t. 18, sect. 18, given by the promoters of a railway company to a tenant having no greater interest than a, tenancy from year to year, is not "requiring a possession" within sect. 121 so as to entitle him to have his compensation, assessed by Justices. Qusere — ^Whether he has any remedy against the promoters for tying, up the land. Tlie Queen V. Stone and Metropolitan Railway Company, 35 Law J. Eep. (n.s.) M. G. 208 ; 7 Best & S. 769 ; Law Hep. 1 Q. B. 529. 3. — A railway company gave notice to a land- owner to treat for the purchase of land. They were let into possession under a verbal arrange- ment. The price had not been fixed when the landowner died : — Held, that there was no conver- sion. Eighton v. Bighton, 36 Law J. Rep. (n.s.) Chanc. 61. 4. — ^Where the corporation of a town, having power to take land under the Act, gave to the parish notice to treat, and afterwards claimed the land as their own : — Held, that the notice to treat was no estoppel. Campbell v. Corporation of Liver- pool, Law Eep. 9 Eq. 579. 5. — The special Act of a railway company enacted, that before the company entered upon or took any tenement under the powers of the Act, they should give to the occupier thereof six months' previous notice of their intention to take ; and in- corporated the Lands Clauses Consolidation Act, 8 & 9 Vict.c. 18 :— Held, first, affirming the judg- mentof the Court of Common Pleas, 37Law J. Rep. (n.s.) C. p. 265 ; Law Rep. 3 C. P. 553, that a six months' notice of the company's intention to take certain premises given to the occupier thereof in pursuance of that enactment, was a good notice, binding the company to proceed under the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 1 8 ; se- condly, that such occupier was entitled to maintain an action of mandamus to conipel the company to serve a notice to treat under section 18 of the Lands Clauses Consolidation Act, 8 & 9 Vict. e. 18, and take all steps necessary to assess com- pensation ; thirdly, that in such action the plain- tiff might recover more than nominal damages. Morgaii v. The Metropolitan Railway Company, 38 Law J. Rep. (n.s.) C. P. 87 ; Law Rep. 4 C. P. 97'. 6. — A railway company after notice to treat arranged by private contract the price of the into- ' rest of a tenant in lands there being a covenant in his lease not to assign without the consent of his lessor : —Held, that the covenant was abrogated so as to enable the tenant to assign to the railway without the consent of his lessor. Slipper v. 2'fte Tottenham and Hampstead Junction Railway Com- pany, 36 Law J. Rep. (n.s,) Chanc. 841 ; Law Rep. 4 Eq. 112. The contract provided for an apportionment of rent : — Held, that the company could not resist specific performance, because the lessor was not a party to such apportionment. - Ibid. 7. — Section 16 of the Lands Clauses Consolida- tion Act, 1845, enacts that where an undertaking is intended to be effected by a capital to/be sub- scribed by the promoters, the whole of the capital shall be subscribed before it shall be lawfid to put in force any of the powers of the Act in relation to the compulsory taking of land for the purposes of the undertaking. A railway company, under a special Act incor- porating the Lands Clauses Consolidation Act, 1845, gave notice to a landowner that they re- quired to purchase and take his land for the pur- poses of their special Act. Tlie amount of com- pensation not having been settled by agreement, the landowner required them to have the compen- sation assessed in the manner pointed out by the Act, and on their refusal brought an action for a mandamus to compel them. The company pleaded that when the notice was given the whole of the capital had not been subscribed : — Held (on demurrer to the plea), that the object of section 16 is to protect the landowner ; that such a notice, when the landowner is willing to sell, is not " a putting in force any of the powers " aforesaid ; that the company could not treat the notice as invalid, and that the plea was bad. Sir Ivor Guest v. The Poole and Bournemouth Railway Company, 39 Law J. Rep. (n.s.) C. P. 329 ; Law Rep. 5 G. P. 553. (2) Form and requisites. 8.— In a suit for the specific performance of a contract founded upon a notice to treat under the Lands Clauses Act, — Held, that the notice did not require to be stamped as an agreement. Rawlings V. The Metropolitan Railway Company, 37 Law J. Eep. (n.s.) Chanc. 824. lAmit of time for compulsory powers. [See Railway Compamy, 15.] (6) Vart of a house or manufactory. (1) What is. 9. — In construing this section of the word " house " has been decided to included whatever is' necessary for the convenient occupation of the' house, but this necessity is not to be judged of by the peculiar wants of the occupier, therefore where, the occupier having a large family and requiring, to keep a number of horses and cows, bought a field at the opposite side of the road for that pur- 310 LANDS CLAUSES CONSOLIDATION ACT (A), (B). pose : — Held, tbat such field was not a part of his house, and that- he could not compel the railway- company, requiring a portion of the field, to take the whole and the house. Steele v. The Midland Railway Company, 1 Law Rep. Chanc. 276. 10. — A small piece of ground was situated in froQt of a public-house, and had always been occupied with it. On one side it was open to a narrow public street, and customers frequently left their horses and carts standing on it while they were inside the public-house. A strip im- mediately in front of the public house was paved, and formed part of a public footway between two streets : — Held, that this piece of ground was part of the houss within the meaning of the 92nd section of the lands Clauses Consolidation Act, 1845. Marson\. The London, Chatham and Dover Railway Company, 37 Law J. Rep. (n^.) Chanc. 483 ; Law Eep. 6 Eq. 101. 11. — A railway company gave notice of their intention to take a greenhouse and part of the ornamental ground adjoining the plaintiff's house in which he resided. The whole extent of the grounds surrounding the house was about two acres inclosed by brick walls ; part of it was ornamental ground, and the other part used by the plaintiff, who was a nurseryman and florist, as a nur.sery garden : — Held, that the railway company must take the whole of the plaintiff's land. Salter v. The Metropolitan District Railway Company, 39 Law J. Rep. (n.s.) Chanc. 567 ; Law Rep. 9 Eq. 432. 12. — A goit and shuttles, by which the supply of water to a reservoir connected with a manufac- tory, the machinery in which was partly worked by steam and partly by water: — Held, to be a part of the manufactory within the meaning of this section. Furniss v. The Midland Railway Company, Law Eep. 6 Eq. 473. (2) Form of decree against company. 13. — Form of decree in a case where a railway company, having taken part of the curtilage of a house, were decreed to take the whole house and ciirtilage. Marson v. 7%c London, Chatham, and Dover Railway Company (2), 38 Law J. Eep. (n.s.) Chanc. 371 ; Law Rep. 7 Eq. 546. (c) Entry on land. ( 1 ) Where permanen t. 14, — The entry by a railway company on land for ihe purpose of diverfng over it a public way which ran over lands already in the occupation of the company, is an entry with a view to the per- manent user of the land within the meaning of the Lands Clauses Consolidation Act, 1845, s. 84 ; and no entry for such purpose is lawful, except on payment of the proper purchase-money. An agreement between a railway company and a landowner provided that in case the company should require additional land for the purposes of their railway and works, they should pay for it at the rate of 200^. per acre, without further payment in respect of severance or other damages ; — Held, that the company wore thereby'autliorised to take land for the purpose of diverting a footway, with- in the time for completing their works which had not expired, although the time for compulsory taking of land had expired. Rangdey v. The Midland Railway Company, 37 Law J. Rep. (n.s.) Chanc. 313 ; Law Eep. 3 Chanc. 306. (2) Right to enter v/ader 85iA section. 15. — A railway company can only take advan- tage of the powers of entering on land given by the 8flth section of the Lands Clauses Consolidi- tion Act, 1845, where the necessity for immediate entry is so urgent as to preclude them from fol- lowing the slower modes of procedure which that Act provides. The valuation which, by the 85th section of the Lands Clauses Consolidation Act, a railway com- pany are required to obtain before exercising the power of entry given by that section, must include compensation for severance, &c. A railway company exercising that power since the 20th of August, 1867, the date of the passing of the Railway Companies Act, 1867, are not entitled to proceed upon a valuation made prior to that date, but must comply with the pro-visions of the 36th section of the Act of 1867. Fidd v. The Carnarvon and Llanberis Railway Company, 37 Law J. Eep. (n.s.) Chanc. 176 ; Law Rep. 5 Eq. 190. 16. — The object and eflTect of the Lands Clauses Consolidation Act, 1845, section 85, are to give a company the right to immediate entry upon land required for the purposes of their undertaking, but not to vest in them the ownership of the land. Wing V. Tottenham and Hampstead Railway Com- pany, 37 Law J. Eep. (n.s.) Chanc. 654 ; Law Eep. 3 Chanc. 740. (B) Compensation. (a) For what damage. (1) Loss of trade profits. 17. — A railway company, in pursuance of their Act of Parliament, served notice upon the yearly tenant of a public-house, of their intention, after the expiration of six months from the date thereof, to enter upcn and take the premises in his occu- pation. The company nevertheless did not take possession at the expiration of the specified period, and the tenant continued his business on the premises for a further space of two years, but at a reduced rate of, profits, the company ha-ving by virtue of their powers demolished the surrounding neighbourhood. At the end of the two years the tenant received a summons from a metropolitan police magistrate, under the 8 & 9 Vict. c. 18, sect. 121, to appear for the purpose of having the amount of compensation due to him assessed. On the hearing of the summons the tenant, in addition to the usual items of compensation, claimed in respect of reduced profits of trade consequent upon the demolition by the company of the surrounding neighbourhood from the time of the expiration of the six months' notice to the date of the hearing" of the summons : — Held, that he was not so entitled, the claim being one which, LANDS CLAUSES CONSOLIDATION ACT (B). 311 in the absence of statutory powers, could not have been made the subject of an action, and the keep- ing on of the business at a reduced rate of profits, after he might have compelled the company's acceptance of the premises, being his own volun- tary act. The Queen v. Vaiighan, 38 Law J. Rep. (n.s.) M. C. 49 ; 9 Best & S. 892 ; Law Eep. 4 Q. B. 190. (2) Lands injuriously affected. 18. — An umpire appointed under the Lands Clauses Consolidation Act, 1845, to assess tlie damage occasioned to the plaintiff's house by the erecting of the works of the defendants, a railway company, awarded that the execution of the works had occasioned a diminution of light to the house, that it was rendered thereby less convenient and suitable for the plaintiff's trade, and that he had sustained damage in his trade by reason of this diminution to a specified amount, but tliat not- withstanding such diminution of light, the saleable value of his interest in the house was not dimin- ished, and that, except the said damage in his trade, he had not sustained damage, and except the compensation in respect of such trade, he was not entitled to compensation : — Held, on demurrer to a declaration setting forth such award; that this was an award of damages in respect of an injury to land within the said statute, and that the plaintiff was entitled to the sum awarded. Eagle v. The Charing Cross Railway Company, 36 Law J. Rep. (s.s.) C. P. 297 ; Law Rep. 2 0. P.' 638. The declaration alleged the appointment of arbitrators by the plaintiff and the defendants and of an umpire, and an agreement whereby the time for making the award was enlarged, but alleged no attempt to appoint a single arbi- trator : — Held, that this was unnecessary. Ibid. 19. — A railway company in the execution of their works under their Act of Parliament, which incorporated the Railways and Lands Glauses Consolidation Act, 1845, 8 & 9 Vict. co. 20 and 18, erected an embankment which encroached on the public road in front of the plaintiff's house so as to reduce the width of such road from 50 to 33 feet. In an action on an award, made under the Lands Clauses Consolidation Act, there was evi- dence that such narrowing of the road had depre- ciated the value of the house to the extent of 21. a year, and had reduced the house from a second- class to a third-class residence, and the jury found that the value of the house had been diminished by reason of such contraction of the road : — Held, that there was a permanent injury to the house, irrespectively of any trade carried on there or other particular use to which it might be put, and an injury for which the plaintiff might have main- tained an action but for the statute which autho- rised the execution of such railway works, and that therefore the plaintiff was entitled to com- pensation in respect of his house being injuriously affected within the meaning of the Railways and Lands Clauses Consolidation Acts, and the case was within Chamberlain's case, 31 Law J. Rep. (n.s.) G. B. 201 ; 2 Best & S. 605 : in error, 2 Best & S. 617 ; 32 Law J. Rep. (n.s.) Q. B. 173 ; and not within EicJcet's case, 34 Law J. Rep. (n.s.) Q. B. 257; 5 Best & S. 156: in the House of Lords, 36 Law J. Rep. (n.s.) Q,. B. 205 ; Law Rep. 2 H. L. 145. See No. 20 infra. Beckett v. The Midland Railway Company, 37 Law J. Eep. (n.s.) C. P. 11 ; Law Rep. 3 C. P. 82. 20. — Loss of trade occasioned by the obstruc- tion of a highway during the execution of the works of a railway company is not an injurious affecting of the tradesman's interest in his premises which entitles him to compensation under the 68th section of the Lands Clauses Consolidation Act, 1845, or under the 6th or the 16th sections of the Railways Clauses Consolidation Act, 1845. A railway company placed a temporary bridge over a highway during' the construction of their works, whereby access to a public-house was made more difficult than theretofore, passengers were deterred from passing that way, and loss of custom and trade ensued to the public-house : — Held, by the Lord Chancellor and Lord Cranworth (Lord Westbury dissenting), that this was not a damage for which compensation could be claimed. And by the Lord- Chancellor — The 68th sect, of the 8 & 9 Vict. c. 18, and the 6th sect, of the 8 & 9 Vict. u. 20, provide for damage of a permanent, and not merely of a temporary nature, and the 16th sect of the 8 & 9 Vict. c. 20, whicli provides for damage of a temporary nature, contemplates only a direct and not a merely consequential damage. By Lord Cranworth — Compensation can only be claimed where damage had been done to the structure of the property, or where the plaintiff has suffered some special damage differing not merely in degree from that which the rest of the public has sustained. Eickett v. The Metropolitan Railway Company, 36 Law J. Rep. (n.s.) Q. B. 205 ; Law Rep. 2 E. & I. App. 175. , 21. — An award was made under the Lands Clauses Act in respect of the plaintiff's claim for compensation, the defendants having taken a cause- way, pier or jetty, extending from the plaintiff's garden to low water-mark in the bed of the river Thames. In an action brought iipon the award, the plain- tiff proved a lease to his ancestor from the Crown, for 62 years from 1806, of a house and land on the bank of the river Thames " with all courts, areas, vaults, ways, passages, lights, easements, water, watercourses, profits, commodities, advantages and appurtenances whatsoever to the same or any part thereof belonging or appertaining or therewith held, used, occupied, or enjoyed, or accepted, re- puted, deemed, taken, or known as part or parcel thereof." He also proved two agreements made in 1854 and 1858, by which the Crown agreed to grant him a new lease of the premises for 99 years from 1866, at an increased rental, in consideration (among other things) of his spending 20,000i. in rebuilding the house ; also that he had spent that sum, although the new lease had not actually been executed at the time of his claim for compensation against the defendants ; and that the causeway had been for more than 40 years exclusively used by the plaintiff and his family : — Held, affirming the judgment of the Court of Exchequer, 37 Law 312 LANDS CLAUSES CONSOLIDATION ACT (B). J. Eep. (n.s.) Chanc. Ex. 177, that the plaintiff was interested in and entitled to compensation in res- pect of the jetty and causeway. The umpire had awarded 8,325^. " as and for the comifensation for the plaintiff's interest in the said causeway, and for the jetty, and for the shut- ting up of the landing place, and for the damage by the depreciation of his mansion-house by the otherwise injuriously affecting the same." When called as a witness at the trial, the umpire stated that he had allowed among other items 5,000i. "for general depreciation in value of the house and premises by loss of privacy, prospect and other amenities " :— Held, by Blackburn, J., Keating, J., Mellor, J., and Lush, J., that the umpire had ex- ceeded his jurisdiction in awarding as he had done. Held, contra, by WiUes, J., Smith, J., and Brett, J., that he had not exceeded his jurisdiction. Duke of Bticclmch y. The Metropolitan Board of Works, 39 Law J. Eep. (n.s.) Ex. 130 ; Law Eep. 5 Ex. 221. On appeal this judgment was reversed by the House of Lords, 41 Law J. Eep. (n.s.) Ex. 137. 22. — The occupier of a house and premises in- juriously affected by the execution of the works of a railway company in exercise of the powers given t.i them by their Act of Parliament, is entitled, under the Eailways Clauses Consolidation Act, 8 & 9 Vict. c. 20. ss. 6 and 16, to compensation for damage done to his goods in such house by reason of the exercise of such powers. Knock v. The Metropolitan Railway Company, 38 Law J. Eep. (n.s.) G. p. 78; Law Eep. 4 C. P. 131. 23. — The claimants .were lessees of premises about seventy yards from the river Thames. At these premises they carried on the biisiness of potters, and required in the Course of their busi- ness a regular supply of water and sand. It ap- peared that the public had enjoyed from time immemorial a right of way to a part of the bank - of the river nearly opposite these premises for the purpose of dipping and taking water from the river. It also appeared that lower down the river there was a free public draw-lock, where the pub- lic had been in the habit of taking carts for the purpose of loading and unloading barges. This dock had a direct communication with the claim- ant's premises by streets. The Metropolitan Board of Works, in the exercise of their statutory powers, constructed works in front of the spot where the public had the right of taking water, and thereby temporarily obstructed this right. The Board also interfered with the hard or landing-place at the dock, so that it was not possible to, unload so many barges there as before. No part of the claimant's premises, was touched or taken by the Board. A jury, summoned under the Lands Clauses Act, having assessed compensation to the clairaanls for injury to their premises, first, for the obstruction to the right of taking water ; se- condly, for the difficulty in unloading sand at the dock : —Held, on the authority of Bickett v. The Metropolitan Railway Company, 30 Law J. Eep. (n.s.) Q,.B. 205, that neither injury was a subject for compensation, as it was not an injury to laud or any interest therein, but a personal injury to the claimants in the way of their trade. The Queeti v. The Metropolitan Board of Works, 38 Law J. Eep. (n.s.) a.B. 201; 10 Best & S. 391 ; Law Eep. 4 Q. B. 358. Injury to sewers ; ^ht to lateral support. [See Sewebs, 3.] (3) Vibration. 24. — A house and premises adjoining a railway, but not touched by it, were depreciated in value through vibration, noise and smoke, caused by the running of the trains on the railway after it had been completed. The premises sustained no struc- tural injury: — Held, (by Lord Chelmsford and Lord Colonsay^ Lord Cairns dissenting), reversing the decision of the Court of Exchequer Chamber, 36 Law J. Eep. (n.s.) Q. B. 139 ; 8 Best & S. 318 ; Law Eep. 2 Q. B. 223, and affirming that of the Court of Queen's Bench, 35 Law J. Eep. (n.s.) Q. B. 53 ; 7 Best & S. 122, that the owner was not en- titled to compensation from the company by virtue of the provisions of either the Lands Clauses Con- solidation Act or of the Eailways Clauses Consoli- dation Act. The Hammersmith and City Railway Company v. Brand and another, 38 Law J. Eep. (N.s./Ci! B. 265; Law Eep. 4 E. & I. App. 171. (J) In respect of what interest. 25. — A testator bequeathed leasehold premises to his executors on trust to permit his sons " to hold, use, occupy and enjoy " the same so long as they should carry on business there, they-paying the executors a reduced rent, and the executors pay- ing the full rents payable under the leases. And ha declared that if his sons should "decline" to carry on business on the leasehold premises, his execu- tors should sell the same ; and subject as therein expressed, he gave the same premises to trustees on certain trusts. By an order of Court, the premises were directed to be sold when the sons or the survivor " should decline or cease " to carry on business there. Subsequently, the Metropolitan Board of Works gave notice to treat for the premises ; and the surviving executor, acting under an order of the Court, submitted his claim to a jury, and obtained a verdict for a sum representing the whole value of the residue of the term subse- quent to the date of the notice. The sons, who were also served with a notice from the Board, submitted their claim to arbitration, and obtained an award for the fuU amount of their interest in the term. The Board refused to pay both these sums ; and upon a petition presented by the execu- tor : — Held, that the interests of the parties entitled must be valued as at the time the premises were taken, and assuming the premises had not been taken ; the interest to be valued being that ta.ken from the persons entitled, and not the value of the interest acquired by the Board. Held, therefore, that the executor mnst submit to a deduction from the full value of his interest in respect of the chances of his having to continue to receive a reduced rent, and the sons' interest must be valued as a distinct and independent interest ; the amount of such deduction and valuation being LANDS CLAUSES CONSOLIDATION ACT (B). 313 determined by a jury. Pmny v. Penny, 37 Law J. Eep. (n.s.) Chanc 340 ; Law Rep. 5 Eq. 227. 26, — A tenant for a year or from year to year, is not entitled to have the amount of compensation, in respect of his interest, determined under section 121 of the Lands Clauses Consolidation Act, 1845, where the company have merely given a notice to treat under the 18th section, but have not required him to give up possession. The Queen v. Stone, 35 Law J. Eep. (n.s.) M. C. 208 ; 7 Best & S. 769 ; Law Rep. 1 Q. B. 529. Right to renewal of lease. [See JimiSDio- TioN IK Equity, 9.] (c) Bight to compensation. (1) Under local Acts. J2,l. — ^The London (City) Improvement Act, 1847, provided by section 1, that the Lands Clauses Consolidation Act, 1845, " so far as the provisions thereof were not expressly varied or excepted," should be incorporated ; and by section 1 9, that " so much of the Lands Clauses Consolidation Act, 1845, as relates to the purchase of lands otherwise than by agreement" should not be in- corporated. The Holborn Valley Improvement Act^ 1864, by section 5, incorporated the said Act of 1847, except section 19, and also the provisions. of the Lands Clauses Consolidation Act, 1845, " except the part of the last-mentioned Act, with respect to the purchase and taking of lands other- wise than by agreement." An Act for further im- provementsof the Holborn Valley, passed in 1867, by section 1, incorporated the previous improve- ment Act, except certain sections, and the' Lands - Clauses Consolidation Act, 1845, "except the provisions of the last-mentioned Act with -respect to the purchase and taking of lands otherwise than by agreement." Under the Holborn Valley Im- provement Act, 1864; the defendants constructed certain works, and thereby blocked up a street near the plaintiff's premises, and diminished the access to and value of the premises ; and the plaintiff sent in a claim under the 68th section of the Lands Clauses Consolidation Act, 1845 : — Held, that section 68 of the Lauds Clauses Con- solidation Act, 1845, was excepted from the local Acts, and that, even assuming section 68, if incor- porated, would give a right to compensation, this being so and no other sections giving such a right, the plaintiffwas not entitled to compensation either by statutory process or right of action at common law. Dungey v. The Mayor, ^c. of London, 38 Law J. Rep. (n.s.) C. P. 298. 28.— The City of London Sewers Act, 1848, by section 2, incorporates the provisions of the Lands Clauses Consolidation Act, 1845, except so far as they are inconsistent therewith, or are therein de- clared not to extend thereto ; and by section 3 the provisions of the Lands Clauses Consolidation Act relating to the " purchase and taking of lands otherwise than by agreement," are declared not to-, extend to the City of London Sewers Act : — Held, reversing the judgment of the Court of Exchequer, 38 Law J. Eep. (n.s.) Ex. 17, that section 68 of the Lands Clauses Consolidation Act, which is in- DiGEST, 1865-70. eluded under the heading " purchase and taking of lands otherwise than by agreement," preceding the 1 6th section of that Act, was excepted by the form of words used in the 3rd section of the City of London Sewers Act ; and that a person whose premises had been injuriously affected by works done under powers given by the latter Act, in which no special provision was made as to com- pensation, was not entitled to compensation under the Lands Clauses Consolidation Act, 1845; Ferrar v. The Commissioners of Sewers for the City of London, 38 Law J. Eep. (n.s.) Ex. 102; Law Eep. 4 Ex. 237. (2) Equitable mortgagee. 29.— Money paid into the Bank, by way of deposit, prior to entering upon lands, under the 85th section of the Lands Clauses Consolidation Act, 1845, is only a security for what shall be found upon inquiry to be the value of the interests taken ; and if the subsequent inquiry is had with- out notice to any person claiming an equitable mortgage in the lands taken, his interest is not bound by the inquiry, nor is he entitled to have, his mortgage discharged out of the money paid into the Bank, but the lands taken will stilj remain subject to the charge. Martin v. T%e London, Chatham, and Dover Railway Company, 35 Law J. Rep. (n.s.) Chanc. 795 ; Law Rep. 1 Eq. 145 ; Law Eep. 1 Chanc. 501. Lan^s which were subject to an equitable mort- gage were required by a railway company for the purposes of their undertaking. The company had full notice of the equitable charge, and gave to the equitable mortgagees a bond for the value of the premises, as determined by a surveyor appointed under the 85th section of the Lands Clauses Con- solidation Act, 1845, and, at the same time, paid the like amount into the Bank, under the same section. They afterwards proceeded to have the value of the land and amount of compensation assessed by a jury, under the sections relating to the purchase of land otherwise than by agreement, but gave no notice of such proceeding to the equit- able mortgagees. Upon a bill filed by the equitable mortgagees, one of the Vice Chancellors made a decree directing an account to be taken of what was due to the plaintiffs for principal, interest and costs, and the amount certified to be due to be paid out of the money deposited by the company ; Law Eep. 1 Eq. 145 ; T)ut, upon appeal, the Lord Chancellor reversed this decision, and made a de- claration of the rights of the plaintiffs as equitable mortgagees, with the usual foreclosure decree, with liberty to apply respecting the money deposited in the Bank. Ibid. The 124th section, as to interests omitted to be purchased, does not apply to such a case. Ibid. ' Semble — The mortgagQgs might have applied under the 68th section. Ibid. (d) Assessment of damages and compensation. (1) Doubtful title. 30. — Where there is a doubt as to the true ownership of land taken by a railway company, but neither claimant is absent or prevented from SS 811 LANDS CLAUSES CONSOLIDATION ACT (B). treating, the value of the land should not be determined by a surveyor appointed under ss. 68, 69, of the Lands Clauses Act, but by the verdict of a jury, or by an award under section 23 ; and when the wrong course has been adopted, the com- pensation money so deposited will not be paid out till the value has been ascertained in the proper manner and paid into Court. Ex parte The Lon- don and South- Western Bailway Company, 38 Law J. Eep. (n.s.) Chane. 627. Adverse claimants : ejectment. [See Jueis- DiCTiON IN Equity, 3.] (2) Damage by severance. 31. — Where part of a field, available for build- ing purposes, had been taken by a railway company, under their compulsory powers, so as to detach and leave without practicable access the larger portion of the field : — Held, that the jury were rightly directed, in assessing compensation for the severance, to consider the access to the severed portion as cut off, as such access could not be afforded to building land by accommodation works, which the compai y, under' the Railways Clauses Consolidation Act, 8 Vict. c. 20, ss. 68, 69, might be ordered to make ; and the jury ought therefore to exclude these works from their consideration. The Queen v. Brown, 36 Law J. Rep. (n.s.) Q. B. 322, reported sub nom. Begina-f .The Midland Mail- way Company, ex parte Brown, 8 Best & S. 456. (3) Valuation by surveyors. 32. — The provision of section 9, 8 & 9 Vict. c. 18, touching the valuation of land taken from persons under disabilities, by two able practical surveyors, must be strictly carried out, and they are bound to meet and consult on the value, and to certify whether the price is or not a fair price. Bill for specific performance by a railway company dismissed, on the ground that the section had not been complied with in its integrity. Wycombe Bailway Company v. Bennington Hospital, 1 Law Eep. Chanc. 268. . («) Warrant to summon ju/ry : sheriff interested. 33. — ^Where a railway company have given no- tice to a landowner that they required his land for the purposes of their undertaking, and the case is one entitling the landowner to have the amount of compensation assessed by a jury, but the company have neglected to issue their warrant to the sheriff to summon a jury for that purpose within a rea- sonable time after they were required to do so, the landowner, if he is personally interested in the warrant being issued, and has sustained damage, or may be damaged, by its not being issued, has a right to proceed under the Common Law Procedure Act, 1854, section 68, by !>n action for a manda- mus to the railway compiny to issue their war- rant. Fotherby v. The Metropolitan Bailway Com- pany, 36 Law J. Eep. (n.s.) C. P. 88 ; Law Rep. 2 C. P. 188. 34. — By the Lands Clauses Act, 8 & 9 Vict. c. 18, s. 39, the warrantfor summoning a compensation jury is to be addressed to the sheriff, and if he be interested in the matter in dispute, the application is to be made to some coroner of the county in which the lands, or some part of them, are situate ; and if all the coroners of the county are so inte- rested, to some person having filled the oifiee of sheriff or coroner in the county, and who shall be then living there, and who shall not be interested in the matter in dispute, &c. Company A ob- tained an extension Act, and in the exercise of the compulsory powers attached to the new under- taking issued their warrant to the sheriff to sum- mon a jury for assessing certain compensation. The day before the warrant was issued an Act became law which provided that within three months company A should deliver to the two com- panies B and C an account of all payments and liabilities in respeot of the new undertaking, and ■ that within six months companies B and C should pay company A a sum equal to two-thirds of the expenditure with interest, and that after the pay- ment the two companies should be considered joint-owners with company A of the new under- taking. At the time this Act was passed the she- riffVas a shareholder in company B :• — Held, that the interest mentioned by the statute must be taken to mean such an interest as would disqualify a Justice at common law, and that as the period of joint-ownership by the three companies had not arrived, the interest of the sheriff in the matter in dispute was too remote to deprive him of juris- diction. The Queen v. The Manchester, Sheffield, and Lincolnshire Bailway Company, 36 Law J. Eep. (n.s.) Q. B. 171 ; Law Eep. 2 Q. B. 336. (/) Bight to recover. (1) Bamages awarded. 35. — The 81st section of the Eailways Clauses Acts enacts (with respect to mines lying under a new or projected railway) that the railway company shall, " from time to time, pay to the owner, lessee or occupier of mines lying on both sides of the railway, all such additional expenses and losses as shall be incurred by him, by reason of the severance of the continuous working of the mines being interrupted, and by reason of the same being worked so as not to prejudice the rail- way." An arbitrator, appointed under the Lands Clauses Act, directed that a railway company should pay to mine owners certain sums in respect of expenses not actually incurred at the time of the award, ex gr., the expense* of an extra engine and plant, of working the same, of a new pit, and of fresh spoil land. He at the same time found, as a matter of fact, that the above items of damage or expense were " all matters then apparent, and capable of being ascertained and estimated, and that he had awarded compensation accordingly"- — Held, that on the above finding, the claimants were not precluded by the terms of the 81st section, from at once recovering in respect of the several items mentioned in the award, the same being awarded in respect of loss, damages or ex- penses then imminent and capable of being ascer- tained. Whitehouse and another v. The Wolver- hampton and Walsall Bailway Company, 39 Law J. Eep. (n.s.) Ex. 1 ; Law Eep. 5 Ex. 6. LANDS CLAUSES CONSOLIDATION ACT (B), (C). 815 36. — By an award made under the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, the arbitrator awarded one entire sum as the amount of damage sustained by a person by reason of his messuage being injuriously affected by the exe- cution of the works of a railway company, to wit, by the erection of an embankment, and by the narrowing of the road in front of the said mes'iuage. To a declaration in an action on this award for not paying the sum awarded, the com- pany pleaded, that the said messuage was not in- jui'iously affected by the narrowing of the road : — Held, on demurrer, a good pleL Beckett v. The MidlandEailway Company, 35 Law J. Kep. (n.s.) C. P. 163 ; H. & R. 189; Law Eep. 1 C, P. 241. 37. — ^Mandamus, stating /hat the prosecutor gave notice that a ferry ot which he was owner had been injuriously affected by the works of the defendants, a railway company ; that both parties appointed arbitrators ; that the umpire proceeded to determine the claim according to the Lands Clauses Act, and made his award. The mandamus commanded the defendants at their own expense to take up the award, and furnish a copy to the prosecutor. Eeturn, that the ferry, and the inter- est of the prosecutor in it, had not been injuriously affected by the company's works, within the mean- ing of the Lands Clauses Act : — Held, on demur- rer, that the return was good, as it shewed that the award would be a mere nullity, and that the company were therefore not bound to incur useless expense in taking it up. 2%e Queen v. The Cam- brian EaUway Company, 38 Law J. Rep. (n.s.) Q. B. 198 ; 10 Best & S. 315 ; Law Eep. 4 Q. B. 320. (2) Purchase-money awarded. 38. — ^When the price of land taken compulsorily under the Lands Clauses Act has been settled by ajbitration under that Act, the execution of the conveyance is, as in ordinary cases, a condition precedent to the right of action for the purchase- money. The Gwirdians of the East London Union V. The Metropolitan BaUway Company, 38 Law J. Rep. (N.s.) Ex. 226 ; Law Eep. 4 Ex. 309. (3) Conservators of river. 39.— By the 20 & 21 Vict. c. cxlvii, the bed of the river Thames was vested in conservators, with power to them to grant licences for embanking, making docks and building jetties, on payment of consideration, to be assessed in a particijar way, and be partly paid over to the Crown ; by the 21 & 22 Vict. c. cxviii, a railway compa.ny was em- powered to make a railway bridge over the Thames, but the works were not to be commenced without the consent of the conservators and their approval of the plans ; the railway company ob- tained approval of the constTU(;tion of the bridge as proposed, and thereupon erected the piers of their bridge in the bed of the river : — Held, that the conservators were entitled to have compensa- tion assessed under the Lands Clauses Consolida- tion Act, which was incorporated as usual in the said Railway Act. The Conservators of the Elver Thames v. The Victoria Station and Pimlico Eailway Company, Law Rep.-4 C. P. 59. (4) Default to summon jury. 40. — In an action against a railway company under sect. 68 of the Lands Clauses Consolidation Act, for the full compensation claimed because of a default by the company to summon a jury within twenty-one days, a plea " that the claim was not a boni fide claim within the statute, but in fraud of the defendants and without any reasonable cause," will not be allowed. Hooper v. T!ie Bristol Port Eailway and Pier Company, 35 Law J. Rep. (n.s.) C. p. 299. iff) Offer of, and costs. 41. — Upon a claim for compensation under section 68 of the Lands Clauses Consolidation Act, 1845, the promoters of the undertaking offered a sum for compensation, such sum to include the claimant's costs, and the jurj' gave a verdict for less than that sum : — Held, that the claimant was not deprived of his right to costs under section 61, inasmuch as the offer was bad because it included costs. Such an offer to be valid must be for that which is the subject of compensation merely, un- clogged with conditions. Quaere — Whether a sura offered to a claimant under section 68, contemporaneously with the service of the notice of the time and place of in- quiry, but after the claimant has incurred the expense of attending at the nomination of the special jury, is a sum " previously offered" within section SI. In re the Claim of William Balls v. The Metropolitan Board of Works, 35 Law J. Rep. (n.s.) Q,.B. 101 ; 7 Best & S. 177; Law Rep. 1 Q.B. 337. (C) Application or Compensation Monet. (a) Discharge qf incumbrances. 42. — The purchase of leaseholds by the rever- sioner in fee is a payment off of incumbrances within the meaning of the 69th sect, of the Lands Clauses Consolidation Act. Ex parte- The Mayor, ^c, of London, 37 Law J. Rep. (n.s.) Chanc. 375. Where the moneys to be invested have been paid by different companies, the amount of the surveyor's fee will be apportioned in the same way as the stamps upon the conveyance, according to the amount of each fund to be invested. Ibid. Petition for re-investment : affidavit of no incumbrance, [See PeacticeinEotjiTY (E E).] (S) In land : rights of commoners. 43. — Every freeman of Bedford was entitled so long as he was resident there to turn oilt one head of stock annually upon certain commonable land. Non-resident freemen had no such right over the land, but might obtain such right by coming to reside in Bedford. A railway company took part of the land under the Lands Clauses Consolidation Act : the compensation money paid for the extinc- 3 s2 31G LANDS CLAUSES CONSOLIDATION ACT (C). tion of commonable rights was paid into Court. In a suit for ascertaining the rights of all parties to the money: — Held, that the money ought to be re-invested in land to be held on the same trusts as that sold, and that in the mean time the same ought to be invested in stock, and the dividends divided among such freemen as would have been entitled in each year to rights of common over thg^ land. Nash v. Coombs, 37 Law J. Kep. (n.s.) Chanc. 600 ; Law Rep. 6 Eq. 51. Burial ground closed by Order in, Council. [See Burial, 3.] (c) Building. 44. — A corporation was authorised by statute to borrow money for the erection of municipal offices on the security of rates. Land belonging ' to it having been taken by a railway company, and the purchase-money paid into Court, under the 8 & 9 Vict. c. 18, sect. 69, a petition by the cor- poration for the payment out of Court of this fund, to be applied in the erection of the municipal offices, was refused (dissentiente Lord Justice Kniglit Bruce). Ex parte the Corporation of Liverpool, 35 Law J. Hep. (n.s.) Chanc. 665 ; Law Eep. 1 Chanc. 596. An order for the application to building pur- poses of the purchase-money of land, taken under the Lands Clauses Consolidation Act, 1845, will not be made except under special circumstances. Ibid. 45. — Compensation moneys paid by a railway company for part of a settled estate were allowed to be applied — Ist, in ' converting into dwelling houses trade buildings injured by the diversion of traffic; 2nd, in removing a stack-yard, and in roofing with slate or tile instead of thatch, farm- buildings which were in danger of fire from the railway. In re Johnson's Settlements, Law Eep. 8 Eq. 348. (d) Payment to trustees. 46.-^ Land devised on trust for A for life, with remainder as she should appoint, was taken by a railway company, and the purchase-money paid into Court. A, by will, appointed to two trustees on trusts for persons in succession. On petition by these trustees, the purchase-money was ordered to be paid out to them. In r» Horwood's Estate, 3 Gif. 218, distinguished. In re Illman's Will, 39 Law J. Eep. (n.s.) Chanc. 760 ; Law Eep. 2 Eq, 363. (e) Payment out to dowress, 47. — The value of a widow's right to dower was directed to be paid to her out of the purchase- money (previously paid into Court) of lands be- longing to infants, but subject to the dower. In re Hall's Estate, 39 Law J. Eep. (n.s.) Chanc. 392 ; Law Eep. 9 Eq. 179. (/) As between tenant for life and remainderman. 48. — Where a railway company take lands, subject to a lease at a low ground-rent, the tenant for life is only entitled to the amount of the grotmd-rent out of the income of the purchase- money, and the excess of income must be accumu- lated until the expiration of the lease for the benefit of the estate. In re Wootton's Estate, 38 Law J. Eep. (n.s.) Chanc. 305 ; Law Eep. 1 Eq. 589, 49. — Leaseholds of which an expired term of 31 >years remained, were bequeathed to one for life, with remainder over. The leasehold fnterest was taken compulsorily, and the compensation paid into Court; but the dividends not amounting to as much as the net rent formerly did, the Court, on the petition of tenant for life, ordered a government annuity of the former amount of the net rent to be purchased for the tenant for life, aged 61, and the residue to be accumulated during the life of the tenant for life. Alternative order. In re , Pfleger, Law Eep. 6 Eq. 426. 50. — ^Where leasehold houseswhichwere settled in trust for A for life, remainder over, were taken compulsorily and the purchase-money paid into Court: — Held,, that it should be referred to an actuary to ascertain what ought to be paid every year to the tenant for life out of the capital and income. In re Phillips' Trusts, Law Eep. 6 Eq. 250. 51. — Where land in trust is let on lease at rack- rent, and taken under the Lands Clauses Consoli- dation Act, the tenant for life is entitled during " the remainder of the term to the amount of rent, and not the income derived from the purchase- money.- In re Metti's Estate, 38 Law J. Eep. (n.s.) Chanc. 445 ; Law Eep. 7 Eq. 72. (g) On decease of tenant for life. 52. — Dividends on a fund in Court ordered to be paid to a tenant for life may, including an apportionment of a dividend, be obtained by his executors, after his decease, upon summons ; but a new interest coming into existence, «. g. that of a remainderman, can only claim payment through a fresh order, for which, in a case arising under the Lands Clauses Act, a petition was held neces- sary. In re JoUiff's Estate, Law Eep. 9 Eq. 668. (A) Interim investment. 53. — The Court wiU san,ction the interim in- vestment on real security of purchase-money paid into Court under the Lands ,Clauses Act. Be William Smith's Estate, Law Eep. 9 Eq. 178; and see No. 65 infra. (i) Costs of petition for investment or payment. (1) Jurisdiction of Court Of Chancery. 54. — Where a public body purchased part of a settled estate under their compulsory powers, and paid the money into the Court of Exchequer, and the Act provided that money so paid in should be reinvested in land, and that the public body should pay the expenses of all purchases under the Act : — Held, that the Court of Chancery had no power to order the public body to pay the costs of a petition for payment of the fund to the parties entitled. In re Harrison's Estate, Law Eep. 10 Eq. 532. 55.-^The Court has no jurisdiction to make a railway company pay the costs of a petition for re- investment of purchase-money for land taken by them, where such money stands to the credit of a LANDS CLAUSES CONSOLIDATION ACT (C). 317 cause only, and not of the mattpr of the act. Brovm v. Fenwick, 35 Law J. Bep. (n.s.) Chanc. • 241. 56.— The 80th section o£ the 8 & 9 Vict. c. 18, the Lands Clauses Consolidation Act, is to be construed liberally. A railway company took lands belonging to a charity, and the Court authorised the investment of the purciase-money in water works : — Held, that the company must pay the costs of a petition for payment out of the purchase-money. Ee La- thropp's Charily, 35 Beav. 297 ; Law Eep. 1 Eq. 467. 57. — Where a railway company had taken glebe lauds, and had paid the purchase-money into Court, and became insolvent before payment of all the rector's costs, it was ordered that part of the fund in Court might be sold for the payment of the rector's costs yet remaining unpaid. In re Glebe Lands of Great YeMham, Law Eep. 9 Eq. 68. (2) Costs of parties served. 58. — Where land taken by a railway company is the subject-matter of a suit, and the parties to such suit are necessarily served with a petition for confirmation of the conditional contract and in- vestment of the purchase-money, and such parties appear thereon, the company must bear the ex- penses of their service and appearance. Haynes v. Barton, 36 Law J. Eep. (n.s.) Chanc. 233 ; Law Eep. 1 Eq. 422. Any party served with a petition is entitled to appear and have his costs. Sidney v. WUmer, 31 Beav. 338, dissented from. Ibid. 59. — On a petition (not in a cause) for payment of a fund out of Court, where parties who were necessarily served because of the title to the ac- count, but had ceased to have any interest in the fund, appeared by counsel : — Held, that the proper course would have been to tender such sum as would cover the cost of consulting a solicitor as to whe- ther they were interested or not, with an intima- tion that if they appeared their costs would be objected to;- and that not having been done, the respondents were entitled to their costs, fir parte The London and Soidh-Western Railway Company, 38 Law J. Eep. (n.s.) Chanc. 527. 60. — Where a tenant for life petitions under this Act for the investment of a sum of money paid into Court by a company in respect of lands and houses let on lease at rack rent, to which the tenant for life was entitled, and for payment of dividends ; the company are bound to pay the costs of the remainderman's appearance, although there may be no question between him and the tenant for life. In re Crane's Estate, Law Eep. 7 Eq. 322. 61. — A petition, presented by a tenant for life, for payment of the income of a fund paid into Court under the Lands Clauses Act, and which fund was the subject of an administration suit, was served on the trustee : — Held; that the com- pany must pay the trustees' costs. Henniker v. Chafy, 35 Beav. 124. 62. — Where the purchase-money of land taken under the Lands Clauses Act was paid into Court in a cause to the credit of the account of the en- tailed estates of the testator: — Held, that such payment discharged the fund from the jurisdiction of the Act, and that the company were impro- perly served with a petition for payment out. Prescott v. Wood, 37 Law J. Eep. (n.s.) Chanc. 691. (3) Several applications. 63.— -Upon an application imder the Lands Clauses Consolidation Act for the re-investment on real security of compensation money which had already been invested in consols at the expense of the Corporation of the City of London : — Held, following In re Lomax, 34 Beav. 294, that the in- vestment was proper, and that the Corporation must pay the costs ; but that in regard to future costs, it must be considered a permanent invest- ment. In re Wilkinson's Estate, 37 Law J. Eep. (n.s.) Chanc. 384 ; Law Eep. 9 Eq. 343. 64.^'Petition by the Ecclesiastical Commis- sioners in whom the temporahties of the see of Winchester became vested upon the resignation of the late bishop, under the Bishops Eesignation Act, for the transfer to them of fijnds in Court representing the purchase-money of lands formerly belonging to that see, which had been taken by various railway companies, which have since been amalgamated with the London and South- Western Eailway Company, and also for the payment out of dividends accrued thereon. Ex parte The Eccle- siastical Commissioners, 39 Law J. Eep. (n.s.) Chanc. 623. 65. — The costs of an interim investment in real security of purchase-money paid into Court, under the Lands Clauses Act, must be paid by the com- pany, but not the costs of any subsequent invest- ment in land. In re Flemon's Trusts, Law Eep. 10 Eq. 612. (4) Part-owners. 66. — Where a public company takes land held in undivided shares, each part-owner, bon4 fide employing a separate solicitor, is entitled to his costs of obtaining his share of the purchase- money ; but two or more of such part-owners employing the same solicitor are, in the absence of special circumstances, not entitled to more than one set of costs. In re Nicholls's TrvM Estates, 35 Law J. Eep. (n.s.) Chanc. 516. (5) Costs of application in various ways. 67. — A railway company took, under their coiji- pulsoiy powers, land whici was settled in such a way that a father and son had at that time between them the absolute beneficial interest. The pur- chase-money as fixed by arbitration having been paid into Court : — Held, that- the owners were entitled to have part of the fund paid but to them as absolutely entitled, and at the same time to have another part re-invested in the purchase of land, to be settled to somewhat different' uses, at the expense of the company. Be Jones's Trust Estate, 39 Law J. Eep. (n.s.) Chanc. 190. The petition having asked that part of the fund shoidd be applied in paying oif a mortgage created after the payment into Court, the petitioners had 318 LANDS CLAUSES CONSOLIDATION ACT (C), (E). to pay the costs of the mortgagees' appearance. Ibid. (6) Costs of abortive attempt. 68. — A petition was presented for re-investment of money paid into Court by a railway company, and the Court approved of the proposed purchase. It subsequently turned out that a good title could not be made to the land : — Held, that if the pur- chase had failed by reason of the Court disap- proving of it, the purchaser must have paid the costs ; but in this case the Court had approved, though the purcha,se had failed for want of a good title, therefore the company must pay the costs as incidental to re-investment. In re The. Wisbeach, St. Ives, and Cambridge Railway Company, ex parte The Rector of Holywell, 35 Law J. Eep. (n.s.) Chanc. 28. (7) Form of order : taxation. 69. — Orders for the payment and taxation of the costs of petitions respecting the application of purchase-money of property taken by railway companies under their statutory powers must fol- low the words of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18, s. 80. Semble — That under an order for half-yearly sales of a certain part of stock in which the purchase-money of leaseholds taken by the com- pany had been invested, and for payment of the proceeds of each sale, together with the dividends on the remaining stock, to a tenant for life and for taxation and payment of costs according to the Act, the Taxing Master may, without a fresh order, tax the costs of each such periodical sale as it occurs. In re Edmimda, 35 Law J. Eep. (n.s.) Chanc. 538. (8) Transfer to credit of administration suit. 70. — A railway company took settled land and paid the purchase-money into the Bank, under the Lands Clauses Consolidation Act, 1845, section 69. The land being the subject of an administra- tion suit by the remainderman against the tenant for life and executor, the plaintiff petitioned that the purchase-money so paid in might be carried over to t-he credit of the suit and invested in trust therein, and served the defendant and the com- pany. The Court, however, ordered investment in the matter of the company's Act and not of the suit, and payment of the dividends to the tenant for life, making the company pay only the ordinary costs of a common petition for invest- ment, and dismissed the rest of the petition; with costs. Nash v. Nash, 37 Law J. Eep. (n.s.) Chanc. 927. (D) Holder of Eentcsabse : eight to distrain. 71. — P was entitled to a rentcharge, granted by a railway company in consideration of a con- veyance of land by a deed, which reserved to the person entitled to the rentcharge powers of distress and entry upon the land to recover arrears of the rentcharge. E, who was entitled to a similar rentcharge, in order to recover the arrears thereof, instituted a suit against the company " on behalf of herself and all persons entitled to rentcharges, created in respect of purchases of land by the company, who should come in and contribute towards the expenses of the suit ; " and she obtained the ap- pointment of a receiver of the tolls, profits and income of the company. Upon an application by P (who had not autho- rised E to sue on his behalf) for leave to distrain upon t'he land for the arrears due to him : — Held, that he was entitled to distrain notwithstanding the suit. Eyton v. The Denbigh, Ruthin, and Corwen Railway Company, 37 Law J. Eep. (n.s.) Chanc. 669 ; Law Eep. 6 Eq. 14. * 72. — Where property over which a person claims a right to distrain is in the hands of a receiver the Court will give leave to distrain, un- less it is clear that the property is not within the power of distress. The owner of a rentcharge granted under section 10 of the Lands Clauses Consolidation Act, 1845, has no power of distress other than that given by section 11. And it does not extend to goods which the company have assigned for the benefit of creditors. Semble— By 30 & 31 Vict. c. 127, s. 4, the rolling stock of a railway company is protected from such distress, ^/ton v. The Denbigh, Ruthin, and Corwen Railway Company. Riclcman v. Johns, 38 Law J. Eep. (n.s.) Chanc. 74 ; Law Eep. 6 Eq. 488. (E) SuPEHFiuous Lands. (a) What lands are superfluous. IB, — A railway company took from A a small piece of land. On part of this they constructed the embankment of their railway, and over the remainder they made a road for the accommodation of an adjoining owner, the parts of whose lands they had severed : — Held, reversing the decJIion of one of the Vice Chancellors, 37 Law J. Eep. (n.s.) Chanc. 74, that they were entitled to make this use of the remainder, and a biU by A to es- tablish his right of pre-emption was dismissed. Held, also, that if the case had been otherwise as to the company's right of so using the land in question, the plaintiff would not have been defeated, on the ground that the period mentioned in section 127 of the Lands Clauses Consolidation Act had not expired. Earl Beauchamp v. The Great Western Railway Company, ZS Law J. Eep. (n.s.) Chanc. 126 ; Law Eep. 3 Chanc. 745. 74. — The 127th section of the Lands Clauses Consolidation Act, 1845, applies only to super- fluous lands properly so called, and not to lands abandoned in consequence of the railway company giving up their scheme. W. L. Smith and others V. H. Smith and others, 38 Law J. Eep. (n.s.) Ex. 37 ; Law Eep. 3 Ex. 282. (i) Lands within town, or used for building purposes. 75.— The terms of the exception of the 128lh section of the Lands Clauses Consolidation Act, _ LANDS CLAUSES CONSOLIDATION ACT (E). 319 1845, in respect of land situate within a, town, or land built upon or used for building purposes, are not satisfied by the mere fact of the land taken being within tJie borough boundary of some town, or having upon it one or two houses, or being capable of use as building ground. But it must either belong to that part of the solum of a town which is surrounded or covered by continuous houses, or, if not situate in a town itself, be land covered with continuous buildings eodem modo in which the solum of the town may be described as so covered, or be land actually and de facto used for building purposes. Although the right of pre-emption cannot be claimed in regard to superfluous land which re- mains in the possession of the company until the expiration of ten years from the time limited by its Act for the completion of its works, yet, if the company at any earlier period offer the land for sale to a third party, the right arises at once. The right is confined to land acquired by a com- pany under its parliamentary powers ; but if the usual notice to treat have been given in exercise of the powers, the right is not lost in consequence of the price being subsequently settled by agree- ment instead of an award or inquiry before a jury. Lord Oarington v. The Wycombe Eailway Company, 37 Law J. Eep. (n.s.) Chanc. 213 ; Law Eep. 3 Chanc. 277. 76. — A person may be an " adjoining owner " to superfiuous lands within section 128 of 8 & 9 Vict. c. 18, although he purchased such adjoining lands from the company itself. Semble — It would not be sufficient if his land only touched the superfluous lands at a point. To bring lands within the exception in this section as " within a town " they must be encom- passed by the buildings constituting the town. And they will not be brought within the exception as " used for building purposes " merely by being marked out in plots for, and by being capable of being used for building purposes, but must be con- nected with building purposes. All adjoining proprietors have equal rights of pre-emption, and if one only be plaintiff an inquiry will be directed whether any adjoining owners are desirous of purchasing. The right of an adjoining owner to claim pre- emption of superfluous lands arises if within the ten years allowed by the Act the company attempts to sells such lands ; and a description in their ad- vertisement of sale of lands " as surplus lands " is suificient to stamp the lands with the character of " superfluous lands." Semble — The existence of a boundary wall between the superfluous and adjoining land does not deprive the adjoining owner of his right of pre- emption. Judgment of Stuart V.C, 38 Law J. Eep. (n.s.) Chanc. 19, affirmed. - Whether Teddington is a town — quaere. T%e London and South- Western Bailway and Clement V. Blackmore, 39 Law J. Eep. (n.s.) Chanc. 713 ; Law Eep. 4 E. & I. App. 610, 77. — " Lands used for building purposes," within the meaning of section 128 of the Lands Clauses Act, 1846, must be lands actually laid out for that purpose at the time of their being taken by the railway. A lessee is an adjoining owner within that section. A private road separated surplus lands of a rail- way from the lands of certain lessees who had a right of way over it, the ownership of the soil being in their reversioner : — Held, that they were nevertheless adjoining owners. Several persons were owners adjoining a plot of surplus land all in one piece : — Held, that they were each entitled to a pre-emption over the whole before any part of it could be sold to a stranger. Conmentry v. The London, Brighton and South, Coast Railway Company, 37 Law J. Eep. (n.s.) Chano. 90 ; Law Eep. 5 Eq. 104. (c) Eight of 'pre-emption : adjoining owners. 78.— By section 217 of 7 & 8 Vict. e. xcii. (a section in almost the same words as the Lands Clauses Act, section 127) it is provided that if the company do not sell within the period of ten years the superfluous lands not required by them for the purposes of their Act, then such lands remaining unsold at the expiration of such period shall there- upon vest in and become the property of tho owners of the lands adjoining thereto in proportion to the extent of their lands respectively adjoining the same. The company became amalgamated with others ; and the new company, after the period of ten years had expired, obtained an ex- tension Act, which provided " that the respective periods by the several Acts relating to the com- pany limited for the sale of their superfluous lands should be extended for five years from the passing of the Act, and those several Acts should be read and construed as if that period had been fixed by each of those Acts for that purpose " : — Held, first, that the obligation to re-sell surplus land applied to reversions or other partial interests in land acquired by the company as well as to property in which they had acquired the fee simple ; secondly, that the words of the section extending the time for the re-sale «)uld not be construed so as to defeat the vested rights which had arisen from the lapse of the time allowed for the re-sale. The Court of Queen's Bench having decided that the surplus land forfeited by the company must be apportioned among the adjoining owners according to a line drawn from the point where their boundaries met to the nearest point of the land actually used by the company : see 34 Law J. Eep. (n.s.) a. B. 166:— Held, by the Exchequer Chamber, that this mode of apportionment was wrong, and that the land ought to be divided among the owners of the adjoining properties in proportion to the frontage of each, that is, the length of the J.ine of contact of each property, if the line were made straight from the point of in- tersection of the boundaries on one side to the point of intersection of the boundaries on the other. Moody v. Corbett and others, 35 Law J. Rep. (n.s.) a. B. 161; 7Best&S. 544; Law Eep. 1 Q. B. 610. 320 LANDS CLAUSES CONSOLIDATION ACT (F)-LAND TAX (A), (B). (F) Costs. [See (C) (g) supra.] 79, — A railway company is not liable to the costs of an inquiry (under section 94 of the Lands Clauses Cftnsolidation Act) as to whether land intersected by the works of the railway is of less value than the expense of making a communication between it ; as the sections of the statute which award costs apply only to cases where the obliga- tion of the company to take land is not in question. Cobb v. The Mid- Wales Railway Com- pany, 36 Law J. Eep. (n.s,) Q. B. 117; 7 Best & S. 267 ; Law Kep. 1 Q. B. 342. 80. — Under section 52 of the Land Clausfis Act, 1845, the Master of the Courts of Queen's Bench of England and Ireland respectively, have exclusive power to settle the costs of inquiries in case of difference between claimants and pro- moters, and their decisions are not subject to re- vision by the Court. Owen v. The London and North-Western Railway Company, 37 Law J. Rep. (n.s.) a. B. 35 ; 7 Best & S.' 758 ; Law Eep. 3 Q. B. 54. 81. — A corporation gave notice to take lease- holds under an Act with which the Lauds Clauses Act was incorporated, and the price was then settled with the persons beneficially entitled ; but it did not appear that there was any contract in writing for the purchase. The executors of the testator,' under whose will the property was settled, had died, and there was no legal personal representative of the testator. The corporation required administration de bonis non to the tes- - tator to be taken out, for the purpose of perfecting the title to the property ; — Held, that the corpo- ration must pay the costs of obtaining such ad- ministration, under the 82nd section of the Lands Clauses Act. In re The Liverpool Improvement Act, 37 Law J. Rep. (n.s.) Chanc. 376 ,' Law Eep. 6 Eq. 282. In re The South Wales Railway Company, 14 Beav. 418; 20 Law J. Rep. (n.s.) Chanc. 634. See however Er parte Buck, 1 H. & M. 619; 33 Law J. Rep. (n.s.) Chanc. 79 overruled. Ibid. 82. — ^WTien money is deposited in Coutt under the 86th section of the Land Clauses Consolidation Act tie Court has jurisdiction, under the 80th section, to order the company to pay costs. Where a railway company took possession of lands under their compulsory powers, and paid into Court a sum of money under the 86th section of the Act, the Court, upon the petition of the landowner, ordered them to pay the costs of an apportionment of rents which became neces.sary. In re The London, Brighton and South Coast Rail- way Company, ex parte Flower, 36 Law J. Rep. (ns.) Chancri93; Law Rep. 1 Chanc. 699. 83. — A judgment creditor who is not in a position to obtain actual delivery of the land of his debtor from the sheriff, as where it has been already extended on a prior judgment, cannot pre- sent a petition for sale under this statute. In re Cambridge Railway Company, V.C.W., Law Rep. & Eq. 413. 84. — A mere notice by a railway company to a landowner to treat for the purchase of land under their compulsory powers, can have no operation after the time within which they are bound to complete the railway ; therefore, where a company gave the notice to treat and the landowner sent in his claim, and nothing more was done and the time for completing the railway expired, and sub- sequently the company obtained a second Act under which they had compulsory powers to take the land in question :— ^Held, that the first notice was inoperative ; and that a fresh notice must be given under the second Act. Richm) " Without benefit ofsdhage." 16. — A policy on profits mstde " fred ftora average, but without benefit of salvage," is void under the 19 Geo. 2. e. 37, s. 1. Smith-v. Beynolds, Hurl. & N. 221 ; 25 Law J. Eep. (n.s.) Ex. 337, followed. Be Mattosr. North, 37 Law J. Eep. (N.s.y Ex. 1 16 ; Law Eep. 3 Ex. 185. (C) What constitdtes the Conteact op Insubance. 16. — The plaintiffs' broker, by their directions agreed with the defendants (a marine insurance company) for the insurance of the plaintiffs' ship on certain terms ; a policy of insurance under seal, &c. was duly executed in the absence of the broker ; and according to the usual practice the deed was retained in the company's office to await the broker's application for it, and the broker debited with the premium ; when the premium became payable according to the debiting and was de- manded, the broker (who had charged to and been paid by the plaintiffs the amount thereof) declared that the insurance was a mistake, and without the plaintiffs' authority had the deed cancelled. The plaintiffs brought an action on the deed : — Held, reversing the decision. of the Court of ExchequpB Chamber, that although retained in the defendants' office, under the above circumstances the deed was fuUy perfected and constituted a complete contract of insurance between the parties, and, as the broker had no authority to cancel it, the action was main- tainable. Xenos and another v. Wickham, Chair- man of the Victoria FHre and Marine Insurance Company, 36 Law J. Eep. (n.s.) C. P. 313 ; Law Eep. 2 E. & I. App. 296. (D) Instjkable Interest . 17. — Advances made by the charterer to the master at the port of loading to be repaid by deductions out of freight, give the charterer an in- surable interest in a policy of disbursements. Currie and Co. v. The Bombay Native Insurance Company, 39 Law J. Eep. (n.s.) P. C. 1 ; Law Eep. 3 P. C. 72. 18. — The mere fact that a person's name ap- pearing in a bill of lading as the shipper and consignee of the goods is only prim& facie and not conclusive evidence that such person has an in- surable interest in such goods. The plaintiff, who was a broker, sold for his principals on commission a certain cargo of goods, shipped under a bill of lading which made his goods deliverable to the order of the plaintiff or his assigns, and he retained the possession of such bill of lading until the purchaser had accepted a bill for the amount of the goods. The plaintiff was not a factor, but a mere agent, who had not MARINE INSURANCE (E), (F). Si9' poBsosaion of the goods, or any lien upon them or advances, commission or otherwise. The goods were lost on the voyage ; and in an action upon a policy of insurance wliich the plaintiff had effected upon the cargo, the jury found that there was no sale of the goods until after their loss ; and the learned Judge at the trial ruled that the plaintiff had an insurable interest, as the bill of lading made the goods deliverable to him or to his assigns : — Held, that such ruling was wrong as a matter of law, and that the plaintiff, having, in fact, nothing to suffer and incurring no liability by the loss, had no insurable interest. Seagrave v. Union Marine Insurance Company, 35 Law J. Rep. (n.s.) C. P. 172; H. & R. 302; Law Rep. 1 C. P. 305. (E) Double Insurance : Amount eecoverable. 19 .^By a policy of insurance a vessel was' insured from Bombay to Calcutta, and for thirty days after she had been moored at the latter place. She had arrived there ten days before such policy had been effected ; and on receiving news of her said arrival, her owners effected a second policy on her with the same insurers, by which she was insured at and from Calcutta to Bombay. The vessel was totally lost at Calcutta during the continuance of the risk under both policies, and the insurers, having paid the owners as for a total loss upon the second policy, sought to recover the full amount upon a policy of re- insurance which they had effected of the risk under the second policy, without deducting the money payable upon the first policy. The Court, being at liberty to draw inferences of fact as a' jury, were of opinion from the above facts that the second policy was intended as a substitution for the first, and that the original insurers were liable only on the second policy, and were, therefore, entitled to recover the full amount on the policy of re-insurance. The Union Marine Insurance Company, Limited, v. Martin, 35 Law J. Rep. (N.S.) C. P. 181. (F) Abaudonment, Notice op. 20. — A ship being chartered for a voyage to New Zealand, thence to Calcutta, and from Cal- cutta to London, the owners effected an insurance on the chartered freight from Calcutta to London, but the insurance was only for the preliminary voyage to New Zealand. The ship, during such preliminary voyage got aground, and sustained such damage as would have justified the owners, had they been then aware of the actual extent of it, in abandoning the vessel and treating the loss as a constructive total loss ; but though several surveys were hel3 on her after arrival at New Zealand, there were no means there of ascertaining her real condition, as it was necessary for that purpose that she should be taken into a dry dock or put on a patent slip, neither of which existed at New Zealand. The surveyors recommended certain repairs being done, and that the ship should be put in a dry dock or on a slip, at the nearest available port, for further examination ; but they did not state that they apprehended she had sustained any extensive damage beyond what had been ascertained, and they advised the captain to proceed in, ballast on his voyage as soon as the necessary repairs, pointed out, had been completed. Tlie vessel was partially repaired, and proceeded in ballast to Calcutta, where, on putting her into dry dock, her real condition was ascertained. On ' the owners being informed of this, they at once gave notice of abandonment to the underwriters ' both on the ship and on freight, there having been also an insurance on the ship. The accident to the ship had occurred in May and June, 1863, and' she might have left New Zealand in the following September, but fof- the captain not having suf- ficient funds to effect the necessary repairs ; this deficiency of funds arose from great expenses which had been incurred in getting the vessel off, from where she had grounded, and in meeting, claims of passengers for breaches of the Passengers Act, and of consignees of the outward cargo, for damage thereto ; and also from the unwillingness of the owners' agents at New Zealand to advance what was required without specific directions from the owners to do so. ' When at length these direc- . tions arrived the money was advanced ?ind the ship repaired without further delay; but the result of it altogether was, the detention of the ship at , New Zealand to the 14th of April, 1864, on which day she left for Calcutta. Held, by the majority of the Court, Cockburn, . C.J., Kelly, C.B., Channell, B., and Lush, J., re- . versing the judgment of the Court of Common ' Pleas, 37 Law J. Rep. (n.s.) C.P. 257, that suffi- cient notice of abandonment of freight was given, if such notice was necessary in order to recover , as for a total loss on the insurance on freight. Semble, per Cockburn, C.J., and Lush, J. — That no notice of the abandonment was necessary, inas- much as the ship, never having been ready to re- ceive the chartered cargo, there was nothing to abandon to the underwriter on freight. Semble, per Kelly, C.B., and Channell, B. —That \ as there was a constructive total loss of the ship, it was impossible for its owners to earn the chart- . ered freight, and there was therefore an actual and not a constructive total loss of such freight. Held, by Cleasby, B., that there had not been such a total loss of the freight as to entitle the assured to recover without notice of abandonment,- and further, that the delay at New Zealand was unjustifiable as against the underwriter, and that , therefore the abandonment of the freight was too late. Fatter and others v. Rankin, 39 Law J. Rep. (n.s.) C. p. 147 ; Law Rep. 5 C. P. 341. This decision was affirmed by the House of Lords, oh appeal. Session 1872. 21. — It is not necessary to use the word " aban- • don " in a notice of abandonment ; any equivalent expressions which inform the underwriters that it is the intention of the assured to give up to them the property insured on the ground of its having been totally lost is sufficient. The assured mast not delay to give notice of abandonment, hut sufficient time must be allowed to enable the assured to exercise their judgment whether the circumstances entitle them to aban- 350 MARINE INSURANCE (G), (I). don. Currie and Company v. The Bombay Native Insurance Company, 39 Law J. Rep. (n.s.) P. C. 1 ; Law Rep. 3 P. C, 72. (G) Unbbrwbiters : Authobitt op Bbokeb. 22, — ^The defendant authorised a broker at Liverpool to underwrite marine policies for him "not exceeding lOOi. by any one vessel." The broker underwrote a marine policy for 160^. At Liverpool it is notorious that there is generally a limit fixed between the principal and the broker, though this limit is not disclosed to the public : — • Held, that the agent in this case had no authority to underwrite for 150i., and that the contract being indivisible, the assured could recover nothing from tbe defendant in respect of the policy. Baines and aTiotker v. Ewing, 35 Law J. Eep. (n.s.) Ex. 194 ; 4 Hurl. & C. 611 ; Law Rep. 1 Ex. 320. (H) Risks insured against. (a) Commencement and duration of risk. 23. — A ship, described as "lying in the harbour of Bombay," was chartered in August, 1866, to take a cargo from Howland's Island to Great Britain ; the ship to be at Howland's Island, on or before the 1st of June, 1867. The shipowners in September, 1866, effected a policy on the vessel " at and from Bombay to Howland's Island, whilst there, and thence to any port or ports, place or places of call, and discharge in the United King- dom." The insurance was on freight " chartered or otherwise," The ship left Bombay for How- land's Island, in October, 1866, in ballast, but before arriving there, sustained such injury from perils of the sea, that it became necessary to aban- don the voyage under the charter-party : — Held, that the assured were entitled to recover as for a total loss of the freight, for the ship, though not actually bound to do so, had left Bombay for the purpose of fulfilling the charter-party, and had thereby taken a step and incurred expense in earn- ing the chartered freight, so as to give the assured a sufficient inchoate interest in the subject-matter of insurance. Barber v. Fleming, 39 Law J Rep. (n.s.) Q. B. 25 ; 10 Best & S. 879 ; Law Eep. 6 Q. B. 69. 24. — ^A time policy of insurance is not prevented from attaching by there having been a construc- tive total loss of the vessel before the commence- ment of the risk insured. Barker and another v. Janson, 37 Law J. Rep. (n.s.) C. P. 105; Law Rep. 3 0. P. 303. (6) Damage from delay. 25. — Meat was shipped at Hamburg for Lon- don, and was insured against perils of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, sur- prisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever, barratry of the master and mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods. The voyage was much prolonged by storms. The meat was in no way affected by the sea-water or such storms, but owing to the length of time to which the voyage was protracted and delayed by the weather, became putrid, and was necessarily thrown overboard: — Held, that the insurer was not liable. Taylor v. Dunbar, 38 Law J, Rep. (n.s.) C. p. 178 ; Law Rep. 4 C. P. 206. (c) Illegal act of master. 20.— A master of a vessel, though acting within the scope of his ordinary authority as master, who does an act in contravention of the laws of his country without the express authority, knowledge or sanction of his owner, whether with or vdthout a view to the owner's advantage, is guilty of an im- plied breach of his order. Therefore, where a master of a vessel has sailed at a time and on a voyage, within the 16 & 17 Vict, c. 107, ss. 170-2, with a portion of his cargo stowed on board on deck and without a certificate of clearance, contrary to that statute, and without the knowledge or authority of the owner, though with a view to the benefit of such owner, the illegality of the voyage does not affect the owner so as to prevent his recovering against an insurer for the loss of the cargo on the voyage by the perils insured against on a policy of insurance on freight. Wi/son V. Eankin, 35 Law J. Rep. (n.s.) Q. B. 87 ; 6 Best & S. 208 ; Law Eep. 1 Q. B. 162. (I) Paetial and Total Loss. (a) Constructive total loss. (1) Policy on goods. 27. — Where, in an action against an insurer on a marine policy of insurance of goods, as for a total loss, it appears that the goods, in consequence of the perils insured against, are lying at a place different from their destination, damaged, but in such a state that they may be carried to their destination, the jury in determining whether it is practically possible to carry them on (that is, whether to do so will cost more than it is worth), should take into account all the extra expenses consequent on the perils of the sea, such as drying, landing and warehousing and re-shipping the goods,' but they ought not to take into account the fact, that if they are carried on in the original bottom, or by the original shipowner in a substituted bottom, they wiU have to pay the freight originally contracted to be paid, that being a charge to which the goods are liable when delivered, whether the perils of the sea affect them or not ; and where the original bottom is disabled by the perils of the sea, so that the shipowner is not bound to carry the goods on, and he does not choose to do so, the jury are not to take into account the whole of the cost of transit from the place of distress to the place of destination, which must be incurred by the goods- owner if he carries them on, but only the excess of the cost above that which would have been in- curred if no peril had intervened. Famworth and another v. Hyde, 36 Law J. Eep. (n.s.) C. P. 33 ; Law Eep. 2 C. P. 204. 28. — Several shippers respectively shipped bales- MARINE INSURANCE (I). 351 of cotton on board a general ship. Part of the bales were lost on the voyage, part thereof arrived ■with the marks thereof obliterated, so that their respective owners covdd not be ascertained, and part arrived so as to be distinguishable and deliver- able to the respective owners :^Held, as respects jBach shipper whose fuU number of bales could not be distinguished and delivered, that he must be taken to have sustained a total loss of part of his cotton and a partial loss of the remainder, accord- ing to a calculation of the proportion that would be applicable to his cotton, with reference to the whole number of bales lost, and the whole number of bales which arrived undistinguishable. Spenoe and another v. 7%« Union Marine Insurance Com- pany, 37 Law J. Rep. (n.s.) C. P. 169 ; Law Rep. 3 O. P. 427. 29. — The appellants chartered a vessel for a voyage, and insured the cargo against total loss. In the course of the voyage the vessel went aground, became hogged, and sustained other in- juries, and surveyors recommended her to be stripped with despatch, and steps taken to save the cargo, but no attempt was made to do so ; and after several days the master, fearing bad weather, sold the vessel and cargo for the benefit of all con- cerned. The vessel remained for some days in the same state, and the weather proving fine, the pur- chasers saved a large part of the cargo : — Held, that the appellants were not entitled to treat the cargo as having been totally lost. Currie ^ Co. v. Tlie Bombay Native Insurance Company, 39 Law ^ J. Rep. (n.s.) p. C. 1 ; Law Rep. 3 P. C. 72. 30. — Where a ship with her cargo on board is sunk in deep water, so that the ship and cargo are in common danger of destruction, and there is nothing to rebut the inference that the most con- venient mode of saving either ship or cargo, or both, is by raising the ship together with the cargo, the shipowner, in considering whether there is a constructive total loss of the ship, on the ground that the cost of raising it will exceed its value when saved, is bound to take into account the fact that the outlay will be diminished by his claim for general average on the cargo and freight, which will be secured to him by a lien on the cargo, if recovered. Kemp v. HaiUday, 35 Law J. Rep. (n.s.) Q. B. 166 ; 7 Best & S. 537 ; Law Rep. 1 a. B. 820. (2) Bottomry bond. 31.— The condition of a bottomry bond pro- vided that the obligation should be void if the ob- ligators should pay, " in case of loss of the ship or vessel such an average as by custom should have 'become due on the salvage or if on the said voyage the said ship or vessel should be utterly lost, cast away, or destroyed, in consequence of the perils of the seas, &c." The vessel during her voyage was obliged to put into port in a damaged state, and was there sold for a sum less than the anlount of the bond, under circumstances which it was ad- mitted would, as between assurers and assured, have constituted a constructive total loss : — Held, in an action by the bondholders against the under- writers on a policy of insurance on the bond, that upon the true construction of the condition, the loss was not " a loss " within the meaning of the condition so as to discharge the obligor, and . that the holders of the bond were not entitled to sue the underwriters on the policy, the doctrine of con- structive total loss not being applicable to a policy of insurance on bottomry. Broomfield and another V. The Southern Inswance Company, 39 Law J. Rep. (n.s.) Ex. 186 ; Law Rep. 6 Ex. 192. (J) Laying submaritie cable. 32. — A shareholder in a company which was formed for the purpose of laying down a submarine cable between I and N caused himself to be in- sured by a policy framed in the common form of a marine policyj but containing, in addition, the following clauses, viz: "The risk to commence at, from and including the time of laying the cable on board the Gr E, and to continue till the cable be laid in one continuous length between I and N, and until 100 words shall have been transmitted from I to N and vice versft, the risk of this policy then to cease and determine"; and " it is hereby understood and agreed that this policy, in addition to all perils and casualties herein specified, shall cover every risk and contingency attending the conveyance and successful laying of the cable from and including its lading on board the G E until 100 words be transmitted from I to N and vice versi ; and it is distinctly declai:ed and agreed that the transmission of the 100 words from I to N and vice versA shall be an essential condition of this policy": — Held, affirming the judgment of the Court of Exchequer, 35 Law J. Rep. (n.s.) Ex. 94 ; Law Rep. 1 Ex. 193, that this was an insurance on the entire adventure of laying down the cable successfully in that one particular voyage of the G E; and that, the cable having broken when being hauled on board the G E after half of it was laid down, the underwriter was liable for a total loss, although the other half of the cable was saved and ready to be used in a subsequent attempt to complete the communication between I and N. Wilson v. Jones, 36 Law J. Rep. (n.s.) Ex. 78; 4 Hurl. & C. 221 ; Law Rep. 2 Ex. 139. (c) Sale by order of Prize Court. 33.- — The plaintiffs insured with the defendants the cargo on board a ship bound from Liverpool to Matamoras against the usual perils, including " takings at sea, arrests, restraints, and detain- ments of all kings, princes, and people." The ship sailed and had nearly reached her destination when she was captured by a United States cruiser, and taken into New Orleans, where a suit was instituted in the Prize Court for her condemnation. The plaintiflFs contested the suit, electing to treat the loss as a partial one. They obtained the judgment of the Court, whereupon the captors appealed. The plaintifis gave a formal notice of aijandonment, which the insurers refused to accept. Upon the application of the captors, the ship and cargo were ordered to be sold, unless bail were given by the plaintiffs. Upon receiving intelli- gence that this order had been made, the plaintiffs applied to the insurers for assistance in giving 352 MARINE INSUEANCE (I), (N). bail to prevent the sale. The ineurers refused to give any assistance, and in the end the ship and •cargo were sold by order of the Prize Court. The plaintiffs brought an action to recover from the defendants, the iusuiers, as for a total loss : — Held, affirming the judgment of the Court of •jQueen's Bench, 38 Law J. Eep. (n.s.) Q. B. 321, .that they were entitled to recover the whole amount at which they were insured under the policy, inasmuch as the decree of the Prize Court, and the sale of the goods under it, was a depri- ,vation of the ownership of the goods, and amounted to a total loss. Stringer and others v. The English ^and Scottish Marine Insurance Company, 6 Q. B. Eep. 699 ; 39 Law J. Rep. (n.s.) Q. B. 214 ; 10 Best & S. 770 ; Law Eep. 5 Q. B. 599 : 38 Law J. Rep. (n.s.) Q. B. 321 ; Law Rep. 4 a. B. 676. {d) Expense of forwarding cargo, ■ 34. — A having chartered his vessel for a voyage, -insured the chartered freight with B by a policy containing a warranty against particular average and the usual suing and labouring clause. The ship was lost, and the goods landed, warehoused, and sent on at a less freight from an intermediate port : — Held, in affirmation of the Court of Com- mon Pleas, 35 Law J. Rep. (n.s.) C. P. 250, that ■there was a total loss of freight at the intermedi- ate port, unless it could be averted by such for- warding was a particular charge within the suing _and labouring clause, and did not convert the total into n, partial loss within the warranty against particular average ; and that A was therefore en- titled to recover the expense -of such forwarding from B in an action on the'poliey. Evidence was given in such action to shew that expenses incurred in saving the subject-matter of insurance were, by usage, called " particular charges " and not " particular average " : — Held, that such evidence was admissible, but that it was in affirmance of the common law, and did not control or vary the policy, and left the case exactly in the same position as if it had not bpen given. Kidston and others \. The Empire Marine Insurance Company, 36 Law J. Rep. (n.s.) C. P. 535 ; H. & R, 433 ; Law Rep. 2 C. P. 35. 35. — The freight on the cargo of a ship having been insured by the shipowner, the ship was stranded, and the cargo necessarily landed ; she was then got off, and might, after being repaired at a port not unreasonably distant, have reasonably returned and re-shipped the cargo by lighters ; the master, however, in order to earn the freight, sent tlie cargo on by railway, though such freight might have been more tardily earned by the other pro- cess which was much less expensive : — Held, that the policy being such that the expense of the for- mer process, if it had been adopted in fact, woilld bo recoverable by the shipowner from the under- writers on freight, it was recoverable though another and more expensive method was actually adopted, biit that under the circumstances, the l.irger expense occurred was not so recoverable. Ije and another v. The Southern Insurance Com- pany, 39 Law J. Eep. (n.s.) C. P. 218 ; Law Eep. 5 C'. P. 397. (K) Genebal Avebaoe. 30.— Where goods insured under a policy against loss by jettison have been lost by jettison, the underwriters are liable under the policy for the whole of the insured value, of the goods jetti- soned, notwithstanding the assured may have a right to contribution against the owners of other interests at risk. After payment under the policy the underwriters would be entitled to the rights of the assured to such contributions. Dickenson and others y. The Jardine and others, 37 Law J. Rep. (n.s.) C. P. 321 ; Law Rep. 3 C. P. 639. (L) Vaitjed Policy. 37. — The valuation of a vessel in a valued policy cannot be opened because it greatly exceeds the real value, if there be no fraud or mistake in the meaning of the parlies when the valuation was stated in the policy. Barker v. Janson, 37 Law J. Rep. (n.s.) C. p. 106 ; Law Eep. 3 0. P. 303. 38. — Where a vessel insured in a valued policy is destroyed by collision, the underwriters after paying the amount insured, are entitled to the damages recovered from the colliding vessel, al- though the amount insured by the policy is less than the actual value of the vessel insured/ The plaintiffs subscribed a policy valued at 6,000Z. on the defendants' vessel. Pending the risk, this vessel was sunk by a collision. The plaintiffs paid the defendants the 6,000^., and proceedings having been taken in the Admiralty against the colliding vessel in the name of the de- fendants, a sum exceeding 6,000?. was recovered as damages. The vessel insured was really worth 9,000i. at the time she was lost : — Held, that the valuation in the policy was conclusive, so that the whole of the damages recovered must be regarded as salvage, and would pass to the defendants. The North of England Iron Steam-Ship Inswrance As- sociation V. Sir William Armstrong and others, 39 Law J. Eep. (n.s.) Q. B. 81 ; Law Eep. 6 Q. B. 244. (M) Rectification of Policy. 39. — The Court will not rectify an alleged mis- take in a written contract, unless it can be shewn that there was an actual concluded agreement antecedent to the instrument desired to be rectified. A bill filed for rectification of a policy of assurance so as to make it conformable to what was alleged to be the real contract, as evidenced by the insur- ance broker's slip signed by the agent at Lloyd's, was dismissed with costs ; the slip being treated by the Court, in accordance with the Stamp Acts, as an clement in the negotiations only, and not as evidence of a contract antecedent to the policy. Mackenzie v. Coulson, Law Eep. 8 Eq. 368. (N) Mutual iNSUEANCE Association. 40. — By the rules of a mutual marine insurance society, it was provided that the members should, severally and respectively, and not jointly or in partnership, or the one for tlio other of them, but each only in his own n;inie, insure each other's MARINE INSURANCE— MAEKET (A), (C). 363 shi^s, from the date of entry of each respectively until ,noon of the SOth of February then next, thence till noon of the 20th of February in the next succeeding year, and so on from year to year, against all losses ; and that in order more readily ta provide for the payment of claims, the managers (nominated by the rules) should be empowered to levy contributions of one-fourth of the fixed annual premii^.by drawing bills upon the several mem- bers ; .provided always, that if the gross amount of tie losses and expenses during auy one year shpuld exceed the ampunt of the premiums so realised, the deficiency should be made good by an additional percentage which members during the year should be respectively bound to contribute and pay to the managers ; also that the managers' drafts on the members for their proportions should be duly accepted and punctually paid when due ; and that if any member neglected to accept or pay the drafts, he should immediately cease to be in- sured in the association, and forfeit all claims, &o., but should remain liable to contribute his share, and the amount due from him should be considered a debt due to the managers, and should be recover- able by them at law. To a declaration against an individual member of.the association on a policy setting out the rules, the defendant pleaded, first, that he had paid the amount demanded of him by the managers, and, secondly, that the bills accepted by him were not yet due : — Held, that the pleadings shewed no breach of the contract into which the defendant had entered. On cross-demurrers, to the declaration and the plea, the defendant is entitled to begin. Bedway V. Sweeting, 36 Law J. Rep. (n.s.) Ex. 185 ; Law Rep. 2 Ex. 400. 41.— By a rule of a mutual insurance society, the insured was bound to give notice to the direc- tors of any change of the captain of his vessel, and, in case of default, the society was not to be liable for any subsequent loss. By another rule, notices to members sent by post were to be ef- fectual, though not actually received : — Held, that tlie directors of the society were members within the latter rule, and that a notice of a change of captain sent to them by post was valid. Brand- ford V. Howard, 35 Beav. 613. MARKET. (A) Disturbance of. (B) Right of Sale. (C) Tolls. (D) Driving Cattle on Sunday. (A) Disturbance of. 1. — The plaintiffs, a municipal corporation, were entitled to hold a market at any place within the limits of their municipal borough. The Reform Act, 2 & 3 Will. 4. c. 64, enlarged the boundaries of the borough for parliamentary purposes. The Mjinioipal Corporations Act, S & 6 Will. 4. o. 76, subsequently extended the boundaries of the muni- DiGEST, 1865-70. cipal bprough to those of the parli^mentajcy bprough for certain purposes. The corporatiion thereupon ' removed their market to a place without the" boundaries of the old municipal borough, but ^within those of ,the parliamentary borough : — Held, in an action for disturbing the plaintiff's market, that the corporation did not forfeit their ancient right to hold the market by the change which they had made in the place for holding it. It is not necessary in order to fix a persoii with disturbing a market that he should have actually sold. The Mayor, Aldermen, and Burgesses of Dorchester v. Ensor and another, 39 Law J. Rep. (n.s.) Ex. 11 ; Law Rep. 4 Ex. 335. (B) Right or Sale. 2. — A market for the town of B was established under statute 6 Geo. 4. c. clxxix. Sect. 141, for pre- venting any encroachment on it, enacted that any person who should sell, or offer or expose to sale (among other things) any roots, fruit, or garden stuff in any other place within the town should be liable to a penalty ; with a proviso excepting the sale by inhabitants in their houses, shops, or premises. A bought vegetables from a wholesale dealei in the market, who had previously on the same day paid toll for them ; he then offered them for sale in the streets :— Held, an offence within sect. 141. BlacJc, Town Clerk of Brighton, v. Sackett, 10 Best & S. 639. 3. — By the Markets and Fairs, Clauses Act, 1847, 10 & 11 Vict. u. 14,0. 13, it is enacted, that aftgr the statutory market-place is open for public use, " every person other than a licensed hawker who shall sell or expose tor sale in any place within the prescribed limits, except in his own dwelling-house or shop, any articles in respect of which tolls are by the special Act authorised to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s." The appellant was tenant of a dwelling-house and shop, and of a piece of ground in front of the shop. A wooden shed af&xed to the house, and supported on wooden posts, had been erected and continued over the piece of ground for a period of eighteen years, and, previous to its erection, there had been stone flags built into and forming part of the house, and projecting three feet beyond it. The flags still remained beneath and assisted in sup- porting the shed, and were erected at the same time as the house and shop." The appellant having been convicted, under section 13, for exposing tollable articles for sale on the ground beneath this shed : — Held, Mellor, J., dissenting, that there was not sufficient evidence to justify the conviction, as the structure must be considered as part of a " dwelling-place or shop " within the exception. Ashworth v. Heyworth, 38 Law J. Rep. (n.s.) M. C. 91 ; 10 Best & S. 309; Law Rep. 4 Q. B. 316. (C) Tolls. 4, — In a high street in the town and manor of C there was a market-house belonging to the lord. This manor, together with the market, belonged ZZ 354 MARKET (D).— MAREIAGE SETTLEMENT. to the Crown in the reign of Henry the Third. As far back as living memory extended, variouB tolls had been paid for the use of the market, for articles hawked about the town, and for stalls and standings for the sale of articles erected in the street. One of these tolls was a shilling for every cartload of fish, fruit, and vegetables hawked alDout the town and for which no toll had before been paid in the market : — Held, that there was /evidence that the toll had been paid from time im- memorial, so that a legal origin of the claim would, if possible, be presumed; that, if any objection were made to the antiquity of the toll on the score of rankness, it might still be supported as a rea- sonable toll, the amount varying from time to time according to the varying value of money; that,. if such an objection were unanswerable, the claim might be sustained as to a toll granted or reserved within time of memory, by presuming a dedication by the Crown of the street to the public since the time of Henry the Third, which would be a good consideration for a grant or reservntion of the toll claimed, as it was not toll-thorough, or a toll for the mere use of the way, but imported a licence to rest and stay upon the land for the purpose of selling' marketable commodities. Lawrence v. Hitch, 37 Law J. Eep. (n.s.) Q. B. 209 ; 9 Best & S. 467 ; Law Rep. 3 (J. B. 521. (D) Deivins Cattle ok Sunday, 5. — A local Act of Parliament, Islington Parish Act, prohibited any drover or other person from " conducting or driving," through the streets, &e., any oxen, sheep, swine, or other cattle on the Lord's Day : — Held, that driving a horse in a van, in which a number of calves were, was not a driving or conducting within the prohibition. Triggs v. Lester, Law Sep. 1 Q. B. 259. MARRIAGE. [See DivGECE ; Baeon and Feme.] (A) Validity of: Scotch Maebiagk. {B) Beeach of Peojuse. '[The Act 12 & 13 Vict jc. «8 declared to include marriages by any person acting in the place of a British consul. 31 & 32 Vict. c. 61.] (A) Validity of^ Scotch Maseiaqe. "1. — A, an Englishwoman, married in Scotland B, a domiciled Belgian. Tliey took up their abode in Belgium, and there went through the ceremony of marriage according to the law of Belgium. The Belgian marriage was dissolved in Belgium on the ' ground of mutual consent. A, in the lifetime of B, afterwards married C in England : — Held, that as the Scotch marriage was valid by the law of England, and the Belgian maarriage conferred no new status on the parties, A's marriage with C was void. Birt V. Boutinez, falsely calling herself Birt, 37 Law J. Rep. (sr.s.) P. & M. 50; Law Rep. 1 P. &-D. 487. 2. — In 1781 A, a domiciled Scotchman, and an officer in the army, eloped with B, a married woman, and continued to live with her, as man and wife, from that time to his death in 1806. Until the year 1784 he was chiefly on foreign ser- vice with his regiment. In that year B's husband died. In 1793, A and B took up their residence In Scotland, and fiom that time they were uni- formly acknowledged and received by all A'S friends, relations, and acquaintances as man and wife. Held, that although the cohabitation of A and B commenced during the life of B's husband, yet that the uniform habit and repute from 1793 to 1806 was sufficient whereon to presume a marriage by consent. Per Lord Westbury. — The interdiange of con- sent will not be attributed to the commencement of the cohabitation, but rather to the first moment when marriage was possible. Per Lord Cranworth. — Evidanee of an invalid marriage during the life of B's first husband would not rebut the presump- tion of a marriage by consent. Campbell v. Camp- bell, Law Rep. 1 H. L. Sc. 182. Marriage bij Registrar. [See Ditoece, 5.] Nullity of marriage on ground of impo- Uncy. [See Ditoece (C).] (B) Beeach op Peomise. 3. — An action for breach of promise to marry the plaintiff on the death of the defendant's father is not maintainable till after the death of the father, although in the meantime the defendant absolutely declares his intention never to fulfil his promise. — So held by Kelly, C.B., and Channell, B., distinguishing Hoehster v. Be la Te'tr, 2 E. & B. 678 ; 22 Law J. Rep. (n.s.) Q. B. 455. Contra, by Martin, B., on the ground that the case was governed by Hoehster v. De la Tour. Semble, per Kelly, C.B. — The properiemedyfor the plaintiff would be by an action of tort, claim- ing damages. Frost v. Knight, 39 Law J. Rep. (n.s.) Ex. 227 ! Law Rep. 5 Es. 322. 4. — In estimating the damage for breach of promise of marriage where the defendant has seduced the plaintiff, the jury may take into con- sideration that the plaintiff's prospects of marry- ing has become less by reason of such seduction, and the mortification to her feelings in ceasing to be a respected member of her family. The Court will not interfere with the discretion of the jury as to the amount of damages, if they have not acted in error, or fr^m imseonception, or from un- due motives. Berry v. Da Costa, 35 Law J. Rep. (n.s.) C. p. 196.5 H. & E. 291 ; Law Rep. 1 C. P. 33L (A) MARRIAGE SETTLEMENT, {See also Teust and Tbusteb.] Validity of. (a) As against creditors. ip) As against wife : marriage articles. MAKRIAGE SETTLEMENT (A), (B). 35S (B) Construction of. (a) Mdest son. (6) Exclusion of son entitled in tail, (c) " Dtie and payable" (d) Gift over : vesting. (e) Gift to "next-of-kin according to the statute.'' (/) Power to sell real estate. (C) EXEOTJTOBT TeUST : HOW CABBIBD INTO EFFECT. (D) Covenants. (a) Covenant hy wife's father to leave by villi. (J) Covenant to settle after-acquired pro- perty. (1) When binding on wife. (2) What it comprises. (E) Tkust FOE Matntenajice. (F) PoETiONS: Satisfaction. (Gr) Jointuee: how payable. (H) What Teusts ahe toltjntaet. (I) Rectification on geotjnd of mistake. (K) Rectification by Divoece Couet. [Married Women's Property, The Law relating to, amended, 33 & 34 Vict. u. 93. (A) Validity op. (a) As against creditors. 1. — Defendant, pending an action against him for the recovery of a deht,. married a woman with whom he had cohabited for several years, and in consideration of the marriage executed a settle- ment of all his property. The Court, upon the suit of the creditor, finding that the wife had knowledge of the facts, declared the settlement fraudulent and void. Buhner v. Hunter, 38 Law J. Rep. (N.s.) Chane 643 ; Law Rep. 8 Eq. 46. (6) As against wife : marriage articles. 2. — 1. Theplaintiif, married during her infancy, was deserted by her husband and obtained a dis- selution of the marriage. Under articles of settle- ment executed prior to the marriage, there being no issue of the marriage, personal estate belonging to her was to be held on trust for her absolutely after the death of her husband in her lifetime. She never assented to the settlement : — Held, that she was entitled to have the whole fund paid or transferred to her. iSmft v. Wernnan, 39 Law J. Rep. (n.s.) Chanc. 336; Law Rep. 10 Eq. 15. 2. — 2. Marriage settlement of wife's present and future property " to which she may become entitled in any way whatever," and a covenant by the husband in the most ample terms to settle such property. Wife's mother bequeathed a sum of money to the wife expressly to go into the settlement, but by a codicil authorised her execu- tors, before paying the same to the trustees of the settlement, to pay such part of it to the wife as she might require, for her separate use, independent of her husband and free from his debts and engagements: — Held, that so much as the wife required for her separate use was not subject to the trusts of the settlement. In re _Mainwaring's Settlement, Law Rep. 2 Eq. 487. (B) CONSTEUCTION OF. (a) Eldest son, 3. — A settlement contained in a limitation in favour of children except an eldest or only son, and a proviso giving over the share of any younger son who should become an eldest son before attain- ing twenty-one : — Held, that a younger son who attained twenty-one and succeeded to an estate tail, but died before the period of distribution of the fund among younger children, was not entitled to share. Be Bailey's Settlements, 39 Law J. Rep. (n.s.) Chanc. 388. (J) Exclusion of son entitled in tail. "4. — By a - settlement made in 1820, on the marriage of Mr. and Mrs. C, certain funds were settled upon trust, after the death of the survivor of them, for their children or child, "other than and except an eldest son for the time being en- titled" under a will, recited in the settlement, to a property at N D, " for an estate in tail male in possession or remainder or immediately expectant upon the death" of Mr. C; the fund to vest in such shildren or child at twenty-one. Mr. C was tenant for life of the property at N D. There were three children, a son, Edward C, and two daughters. The son, in the father's lifetime, con- curred with him in barring the entail in the pro- perty at N D, which was thereupon re-settled, the son taking only an estate for life after his father's death, but taking also out of the property an im- mediate provision of 500/. a year: — Held, varying the judgment of Wood, V.C., 36 Law J. Rep. (n.s.) Chanc. 894 ; Law Rep. 4 Eq. 286, that although the time of distribution of the trust funds was the proper period for ascertaining who was the " eldest son" to be excepted out of the settlement as being entitled under the will as tenant in tail in possession to the estates at N D, and although at that time Edward C was only entitled to those estates as tenant for life, and so did not strictly answer the description of the child to be excluded, yet as he had already acquired the larger interest in the landed property, and had dealt with it as seemed good to him, he was by the terms of the settlement excluded from taking any portion of the trust funds. Collingwood v. Stanhope, 38 Law J. Rep. (n.s.) Chanc. 421 ; Law Rep. 4 E. & I. App. 43. (c) " Due and payable." 5,: — By a marriage settlement a sum of stock was settled upon trust for the husband and wife successively for life, and after the death of the survivor of them on trust to assign the trust fund among their children, and the issue of such of them as should be then dead leaving issue, as the husband and wife should appoint, and in default of appointment amongst the said children and the issue of any of them who should be then dead leaving issue (such issue to take only their parents' share), equally to be divided among them, to sons at twenty-one, and daughters at twenty-one or marriage. And until their respective shares should become "payable" on trust to. pay the income zz2 356 MAREIAGE SETTLEMENT (B), (6). , towards their maintenance. And in ease any child should die without issue before his share should hecome " due and payable " upon trTist to pay and divide the share of such child among the survivors or survivor and the issue of any of the said children then dead, leaving issue, equally, when and as their original share should become " due and pay- able " ; and if at the death of the surviving tenant for life no such child or issue should be living, or in case any of such children and issue were then living, but all of them should die before their respective shares were "payable,"' then on trust over for other persons. The settlement also con- tained a provision enabling the trustees to pay the children's shares to them before the expiration of the respective times thereinbefore limited for the "payment" thereof: — Held, that the words "due and payable " must bear their natural meaning, so that the share of a son who attained twenty-one and died in the life of the surviving tenant for life passed under the accruer clause. In re WUmotts Trusts, 38 Law J. Eep. (n.s.) Chanc. 275 ; Law Eep. 7 Eq. 532. (d) Gift over; vesting. 6. — By a marriage settlement a fund was limited in trust after the death of th3 parents to transfer, &c., to all the children equally ; the shares of minors to be paid, transferred, &c., at their age of twenty-one years, with maintenance in the meantime ; and there was a gift over if there should be no child, or "if they should all happen to die before they became entitled to their respective shares " : — Held, that the shares of the children vested at their birth, and that the shares of two of them, who died in their infancy in the lifetime of their parents, passed to their personal representatives. A petition of appeal by some of several co- plaintiffs against the others of them was allowed. Jopp V. Wood, Smith v. Jopp, 2 De Gex, J. & S. 323. 7. — On the marriage of A and B, personalty was limited to them for their lives, and after the decease of the survivor, " leaving one or more child or children then living, on trust for all and every the child and children of A , and B, as B should -by will appoint, and in default of appoint- ment, upon trust for all and every such child and children equally" : — Held, that to entitle a child to take in default of appointment, it was not necessary that he should survive his parents. In re Grat- wick's Settlement, 35 Bear. 216 ; Law Rep. 1 Eq. 177. 8. — By the trusts of a marriage settlement- a fund was to go, upon the death of the tenant for life, to the child or children of the marriage equally, "to be a vested interest in and paid to such child or children at twenty-one," with main- tenance and accumulation clauses, but no survivor- ship or accruer clause on a child dying under twenty-one. On there being no issue, the fund was to revert to the settlor. There were several chil- dren, one of whom died under twenty-one : — Held, that the whole fund vested in the children who attained twenty-one. In re CoUey's Trusts, Law Eep. 1 Eq. 496. . 9. — J W, by deed, settled a share in peroonal estate upon trust for himself for life, and after his decease for A absolutely, with a gift over " in case A should die in the lifetime of the said J W." A was in fact dead at the date of the deed : — -Held, that the gift over took effect. Barnes v. Jennings^ 35 Law J. Eep. (n.s.) Chanc. 676 ; Law Eej). 2 Eq. 448. [And see Power, 36.] (e) Gift to "next-of-kin according to the statute." 10. — The ultimate trust in a marriage settle- ment of personal property of the intended wife, M W, was declared to be " for such person or persons as at the time of the decease of the said M W shall be her next-of-kin, under and according to the statute made for the distribution of the estates of persons dying intestate, but exclusive of the said E E (the intended husband) " : — Held, the next- of-kin according to the statute took as tenants in common. The rule is, that where there is a refer- ence to the statute, it regulates the nature of the interest as well as the persons to take. In re Rankings Trusts, Law Eep. 6 Eq. 601. (/) Power to sell real estate. 11. — A marriage settlement of personalty em- powered the trustees to sell it, and invest the pro- duce in real estate. The estate was to be held on corresponding trusts, and to be considered, per- sonal estate. There was an express power to sell the securities to be purchased, and to re-invest the produce, from time to time, but no express power -to sell the purchased estate. The trustees invested the fund in a real estate : — Held, that they had a power of sale over it, and could give good receipts for the purchase-money. Tait v, Latkbury, 35 Beav. 112; Law Eep. 1 Eq. 174. [And see Power, 2, 3, 42; Statute, 1.] (C) Executory Trust : how ciRBiED into EFFECT. 12. — Where personalty was given by will to children equally, " the girls' shares to be settled on thejnselves strictly," the Court directed the share of each married girl to be settled on her for her and her husband's joint life without power of anticipation ; in case of her dying in the lifetime of her husband, her share to go as she should by will appoint, in default to her next-of-kin, exclu- sive of her husband ; if she should survive her husband, to her absolutely. Loch v. Bagley, Law Eep. 4 Eq. 122. 13. — Property was by a codicil directed to be settled " in a course of entail to correspond as fai as may be practicable " with the limitations of a newly created peerage contained in letters patent, which limitations were to the Countess of D for life, remainder to her second son and the heirs male of his body, remainder to her third and other younger sons and the heirs male of their respective bodies successively: — ^Held, by Lords Chelmsford, Westbury, Colonsay, and Cairns, the Lord Chancellor dissenting, that a strict settlement of the property ought to be directed corresponding in order of succession with the limitations of the MARRIAGE SETTLEMENT (0), (D). 367 peerage, but limiting the estates of the second and other younger sons of the Countess of D, being lives in esse at the death of testatrix, to estates for their respective lives, with remainder to their first and other sons in tail male, mainly on the ground that the object was to endow the title, and that a peerage being 'inalienable, such limitations would best correspond in eifect with the limita- tions of the peerage. Hon. Sackville West v. Vis- count Molmesdale, 39 Law J. Rep. ■(n.s.) Chano. 605 ; Law Rep. i E. & I. App. 643. The codicil, by which the settlement was di- rected, referred to a will thereby revoked, limiting a different course of entail, and containing powers of jointuring, and charging portions, and making the estates for life unimpeachable for waste. The codicil only directed that the settlement should " contain such powers, provisoes, declarations, aud agreements as the trustees therein named should consider proper, or their counsel should advise ; — Held, the Lord Chancellor dissenting, that the will ought to be the model of the settlement, and that the estates of tenants for life should be with- out impeachment of waste, and that the settlement should contain powers of jointuring and charging portions to the limits contained in the revoked devise. Ibid. Semble, per Lord Cairns — That the absence of specified amounts in the executory instrument would not be fatal to such powers. The letters patent conferring the peerage con- tained a shifting clause: — Held, that a clause should be inserted in the settlement in the same language mutatis mutandis as that contained in the patent. Ibid. For the report of this case in the Court of Chancery, see 36 Law J. Rep. (n.s.) Chanc. 253 ; Law Rep. 3 Eq. 474. (D) Covenants. (o) Covenant by wife's father to leave by will. 14.— rBy marriage articles, the father of the lady covenanted that if she should' survive him, or die before him, leaving any child or children, he would by will give devise or otherwise well and effectually settle and assure to trustees a "child's share" in his real and personal estate upon trust for his daughter for life, with remainder to the children of the marriage, the shares of sons to vest at 21, with remainders over. One child only of the marriage, a son, attained 21, and he died a bachelor in the lifetime of the covenantor: — Held, reversing the decision of one of the Vice Chan- cellors, that the covenantor was not bound to provide by his will against a lapse, and that the representatives of the deceased child took no interest under the covenant. Appeal from an order made by Malins, V.C, 3& Law J. Rep. (n.s.) Chanc. 586. In re Brookman's Trusts, 39 Law J. Rep. (n.s.) Chanc. 138; Law Rep. 8 Chanc. 182. (A) Covenant to settle after-acquired property. (2) When binding on wife. 15. — A marriage settlement recited an agree- ment that the after-acquired property of the wife should be settled, but the covenant to settle was on the part of the husband only : — Held, that tho wife was not bound by it. Where they are incon- sistent, tlie operative part of a deed prevails over the recitals ; but where the operative part is am- biguous, the recitals may be resorted to to explain the ambiguity, young v. Smith, 35 Beav. 87 ; Law Rep. 1 Eq. 180. (c) What it comprises. 16, — A marriage settlement contained' a cove- nant for the assignment to trustees, on the trusts of the settlement, of any property of the value of 400Z. or upwards, to which the intended wife, or husband in her right, should become entitled at any time during the coverture for any interest wliatsoever. The wife was at the time entitled in reversion expectant on the decease of her mother to one-seventh of a sum of 3,278?. in her own right, and to a seventh of another one-seventh of the same sura as one of the next-of-kin of a deceased brother : — Held, by the Lords Justices (affirming an order of the Master of the Rolls), that the covenant referred to the value, not of the wife's interest in any fund, but of the fund itself in which she had an interest, and comprised her shares though the reversionary value may have been less than 400i. Held, also, by Lord Justice Cairns (and, semble, by Lord Justice Turner), that the aggregate value of the whole of both shares must be regarded. QuEere — Whether succession duty and costs should be deducted in estimating such value. In re Mackenzie's Settlement Trusts, 36 Law J. Rep. (n.s.) Chanc. 320 ; Law Rep. 2 Chanc. 345. 17. — By a marriage settlement it was declared and agreed, and the husband covenanted that in case any real, personal or mixed estate and effects to the value of oOOl. should come to or vest in his wife, or in him in her right, at law or in equity, by devise, descent, gift or otherwise, it should be conveyed and assigned by him and her to the trustees of the settlement, to be held by them upon the trusts thereof. A legacy of 5,000/. was, after the marriage bequeathed to the wife for her separate use. The executors of the testatrix were two of the trustees of the marriage settlement, and they, at the request of the- husband, invested the legacy in the Ohio Bonds, in the joint names of the husband and wife. That stock was afterwards sold out under powers of •attorney by the husband, and the purchase-money was lost ; — Held, that the 6,000?. legacy was within the covenant and agree- ment to settle the after-acquired property ; and the husband and the trustees of the settlement were decreed to make good the amount to the trust estate. Campbell v. Bambridqe, 37 Law J. Rep. (n.s.) Chanc. 634 ; Law Rep. 6 Eq. 269. 18. — The ordinary covenant in a marriage settlement to settle all future property coming to the wife, or to the husband in her right during the coverture, in the fullest words, but not pointing to a mere contingent interest (which in the present case might have been barred by a. disentailing deed), will not include a mere contingent interest 358 MAERIAGE SETTLEMENT (D), (F). which does not become vested during the coverture. Dering v. Kynaston, Law Eep. 6 Eq. 210. 19. — Where an interest in property existing at the date of a marriage, is increased in value by the death of other persons, such increment is not after- acquired property within the meaning of a covenant in a marriage settlement. In re Browne's Will, 38 Law J. Eep. (n.s.) Chane. 316 ; Law Eep. 7 Eq. 231. 20. — A covenant in a settlement to settle all the property of the wife of which she was pos- sessed at the date thereof ^^as held to include property to which she was entitled jointly with other persons in remainder after an estate in tail, though the covenant was in terms only the cove- nant of the husband and not of the wife, and though the recitals in the settlement specified certain property to which the wife was tlien en- titled in expectancy but did not mention this particular interest. Caldwell v. Fellowes, 39 Law J. Eep. (n.s.) Chanc. 618 ; Law Eep. 9 Eq. 410. 21. — A marriage settlement, made in 1828, con- tained a joint covenant by the husband and wife to concur and join in company and settling upon the trusts of the settlement, ail property, real or personal, which the wife, or the husband in her right, might thereafter become entitled to or in- terested in, under the will or intestacy of, or by gift from the wife's father, or imder the will or intestacy of, or by gift from any other person or persons whomsoever. The husband died in 1843, having by his will, made in 1841, left all his property to his wife absolutely : — Held, that the covenant did not apply to the property acquired by the wife under the husband's will. The wife's father died in 1836, and under his will she became entitled, in reversion, to a sum of 100/., which did not, however, fall into possession until after the husband's death : — Held, notwithstand- ing, that this was subject to the covenant. Dickin- son V. Dillwyn, 39 Law J. Eep. (n.s.) Chanc. 266 ; Law Eep. 8 Eq. 546. 22. — A joint and several covenant by intended husband and wife to settle after-acquired property, applies only to property acquired during coverture, and does not therefore operate on property coming to the wife under her husband's will. Carter v. Carter, 39 Law J. Eep. (n.s.) Chanc. 268 ; Law Eep. 8 Eq. 551. 23. — A covenant in a marriage settlement by wife and husband to settle all realty and personalty which the husband and wife, or either of them in right of the wife, " should at any time or times during the said intended coverture become seised or possessed of or entitled to": — Held, not to include a vested remainder in land, expectant on the death of a tenant for life who had outlived the coverture, to which the wife was entitled at the date of the settlement. In re Fedier's Settlement Trusts, Law Eep. 10 Eq. 585. (E) Tetjst fob Maintenance. 24. — Under a marriage settlement, an infant took an interest in the settled fund vested at tswenty-one or upon mai'riage, and the settlement contained a proviso that until payment of the fund, the trustees should pay and apply the whole of the income, or so much thereof as they should think fit, for or towards maintenance and educa- tion : — Held, that the father was entitled to have maintenance allowed out of the income of the fund, without reference to his ability, and also to receive out of accumulated income whatever sum ought to have been applied in past maintenance. ■ Distinction between a trust for maintenance arising out of contract, and mere bounty. Mundy V. Lord Howe followed, doubtingly, 4 Bro. C. C. 66, 223. Eansome v. Burgess, 36 Law J. Eep. (n.s.) Chanc. 84 ; Law Eep. 3 Eq. 773. (F) PoETioNS : Satisfaction. 25. — A testator by his will, executed in Eng- land and in the English form, gave legacies to the younger children of his deceased daughter. By a settlement of prior date, made in the Scotch fornat upon his dai^hter's marriage, he had covenanted to pay to trustees a principal sum, to be divided, after the death of the parents, among the younger children of the marriage. The obligation was never satisfied in his lifetime, and no reference to it was contained in the will. The legacies were in excess of the portions which would have arisen from the settlement : — Held, that the testator placed himself in loco parentis, and the wiU being construed according to English law, the legacies were to be taken in satisfaction of the provisions contained in the settlement. Campbell v. Campbell, 35 Law J. Eep. (n.s.) Chanc. 241 ; Law Eep. 1 Eq. 383. 26. — A father, on the marriage of his son, covenanted with the trustees of the settlement that he would leave to them one-fifth share of his re- siduary real and personal estate, to be held by them upon the trusts of the settlement. These were for the husband during his life, or until bankruptcy or alienation ; then for the wife for life, and then for the children of the marriage. By his will he gave his residuary real and personal estate equally among his five children : — Held, 1. That the bequest to the husband was not a satisfaction of the interests of the wife and chil- dren under the covenant. 2. That the bequest to the husband was a satis- faction of his life interest under the covenant, and that he must elect between them. 3. That his election to take the bequest and give np the life interest under the covenant was an alienation of such life interest within the terms of the settlement; and that it thereupon passed to his wife. M'Carogher^. Whiddon; Whieldon y. M'Carogher, 36 Law J. Eep. (n.s.) Chanc. 196; Law Rep. 3 Eq. 236. 27. — Eour sisters, each being entitled to one- fifth of a portion fund, to raise which a term of years had been limited to trustees, became entitled each to one-fourth of the estate on which the por- tion.s were charged. Two of the four portioners were sui juris, two others were married, and their portions in settlement. The two former were de- sirous of having each of their shares of the estate discharged from the portion fund and from the MARRIAGE SETTLEMENT (F), (I). 359 term of years upon paying the diflerence between their respective portions and the fourth part of the whole fund : — Held, they had no right to have the charge so distributed, instead of being raised as an entirety. But the Court thought that it was a matter of arrangement. Minutes. Otway- Cave X. Otway, Law Rep. 2 Eq. 725. 28. — By an indenture of settlement on mar- riage of one of the two daughters of B, B cove- nanted to pay to the trustees of the deed 10,OOOZ. upon trusts which conferred a direct benefit on the husband. Also by his Tiill, made after the settlement, B gave to trustees all his property in trust, after payments of debts, &c., for division between his two daughters in equal moieties, but so that their respective husbands should not take any benefit therein : — Held, reversing the judg- ment of Vice Chancellor Wood (the Lords Justices of Appeal differed), that the gift by the will was not a satisfaction of the covenant, and that the debt of 10,000?. should be paid out of the property before the division of the residue into equal moie- ties took place. Held, also, that the question whether a gift by a parent, or person in loco parentis, by deed or willjjs to be considered as an addition to, or as a satisfaction or ademption of, a gift by a prior deed or will is one of intention. The rule against double portions is founded on a presumption of intention, which may be rebutted by intrinsic evidence raising a counter presumption, as where the object of the bounty is not the same in both instruments, or there is any substantial difference in the provisions of the two instruments. Less is required to countervail the rule where the question is one of satisfaction, that is, where the settlement is followed by the will, than in the converse case of ademption. By Lord Romilly. — Li a case of satisfaction the object of the bounty may always have his election whether to take under the will or under the deed, but in cases of ademption never. A provision by bequest in a will can only be treated as an extin- guishment of the provision by a prior settlement, •not as a bequest on an implied condition that the legatee performs the testator's covenant; and therefore a bequest to one person cannot be a satisfaction of a provision by deed for another person ; in such a case the intention that the be- quest should be subject to the covenant must be clearly expressed ; it will not be implied. Lord John Ohiohester and wife v. Coventry and others, 36 Law J. Rep. (n.b.) Chanc. 673; Law Rep. 2 E. & I. App. 71. 29. — G, upon the marriage of his daughter M, covenanted to pay to the trustees of her settlement an annuity of 300?., upon trust for her for life, for her separate use, without power of anticipation. By his will G devised his real estate to the use that his daughter M should receive an annuity of 400?. for life for her separate use, and also that ' another daughter L should receive an annuity of 1,000?., and bequeathed his residuary personal es- tate, subject to the payment of his debts, upon trusts therein mentioned. In other respeats, both in his lifetime and -by his will, the testator had given his two daughters equal benefits; — Held (upon special case), that, having regard to the general tone of tlie will, and particularly to the direction for the payment of debts, M took the 400?. annuity in addition to the 300?. annuity. Paget v. Grmfell, 37 Law J. Rep. (n.s.) Chanc. 833 ; Law Rep. 6 Eq. 7. (6) Jointure: how payable. 30. — Testator, pursuant to a power of appoint- ment, limited certain settled estates as to part to his eldest son in tail, and as to the residue to his younger children as tenants in common in tail, the' whole being charged under the set- tlement with the payment of a jointure to his widow. The income of the part appointed to the eldest son was of fluctuating value, being de- rived mainly from mineral produce ; the income of the residue was, derived solely from surface rents ; — Held, that the jointure, being a charge on the annual income of the whole, must be appor- tioned as between the appointees in proportion to the actual income received in each year, and not in proportion to the capitalised value of 'their res- pective shares. Ley v. L(y, 37 Law J. Rep. (n.s.) Chanc. 328 ; Law Rep. 6 Eq. 174. Jointure free of property-tax. [See Peg-, PEBTY Tax.] (H) What Trusts age voluntary. 31. — A woman in contemplation of marriage, being at the time indebted upon simple contract, executed a settlement of all her real and personal estate, except certain chattels exceeding in value the amount of the debt. After trusts in favour of the wife, husband, and issue of the marriage, the settlement contained limitations, in default of issue, in favour of the wife's mother, sister and nieces and their issue, one of the nieces being described as her adopted child, and it being pro- vided that in case of issue of the marriage, she should stand on the same footing as a child. The wife died without issue, leaving the debt unpaid : — Held, upon the suit of the creditor, that the trusts in favour of the collaterals, including the adopted child, were voluntary and void as against the plaintiff. Smith v. CherrUl, 36 Law J. Rep. (n.s.') Chanc. 738 ; Law Rep. 4 Eq. 390. 32. — Limitations in a marriage settlement of the property of the intended wife in favour of children by a futvire marriage and of nephews and nieces are purely voluntary gifts, and not within the consideration of the marriage. Such volun- tary gifts are not good unless it is proved that the person who made them understood their nature, and intended to carry them into execution. Wol- lastoTi V. Tribe, Law Rep. 9 Eq. 44. (I) Rectification on ground of mistake. 33. — Where it was obvious on the face of a, marriage settlement, and was admitted by all parties, that a clause in the settlement had been inserted by mistake, the Court,' on petition under the Trustees Relief Act, did not order the settle- ment to be rectified, but made a declaration that the clause was inserted by mistake, and ordered 360 MAERIAOE SETTLEMENT iK)— MASTEB AND SERVANT (A). the distribution of the fund as if the elaus^ had not been inserted. In re De La ToucMs Settle- ment, Law Eep. 10 Eq. 699. 34. — Marriage settlement of wife's present and future property " to which she may become en- titled in any way howsoever," and a covenant by husband in the most ample words to settle such property. Wife's mother bequeathed a sum of money to the wife expressly to go into the settle- ment, but, by a codicil, authorised her executors, before paying the same to the trustees of the settlement, to pay such part of it to the wife as she might require to her separate use, independent of her husband, and free from his debts and en- gagements : — Held, that so much as the vrife required for her separate use was not subject to the trusts of the settlement. In re Mainwaring' s ,t, Law Eep. 2 Eq. 487. (K) Eectification by Divoece Court. [See DivoEOK (E).] MARSHALLING. [See Administration ; Moetgage.] (B) MASTEE AND SEEVANT. [See Apprentice ; Railway Company ; Threats ; Truck Act.] (A) Mxj'Tuai, Eights and Liabilities. (a) Evidence of contract of service. (1) In action for breach. (2) To give jurisdiction under Maiter and Servant Act, 1867. (A) Determination of contract. (c) Arrears of salary : right to interest. (d) Offence by servant : leaving service. Liability op Master foe Servant's Negligence. (a) Evidence of employment. (A) Negligence of fellow servant : common employment. (c) Negligeiwe of servant to obey order which master would be bound to obey. ((?) In general. (A) Mutual Rights and Liabilities. (a) Eindence of contract of service. (!) Z» action for breach. 1, — The appellants engaged the respondent, under a written agreement, dated the 25th of Sep- tember, 1866, as a file-forger, for two years, after the rate of the Sheffield list of prices for the time being. On the 24th of February, 1866, the appel- lants refused to give the respondent work. On the 16th of March, 1846, the respondent entered a plaint in a County Court against the appellants ; and in his particulars alleged that the appellants had " neglected and refused to perform, and had not performed, their said agreement, whereby the respondent had sustained damages to the amount of 11. 14s., being four weeks' average wages in lieu of notice." The appellants paid 11, lis. and the costs into Court on the 19th of April, 1866. On the next day, the 20th of April, the respondent again went to work for the appellants, but was dis- missed on the 21st of April. On the 4th of July, 1866, the respondent entered another plaint against the appellants, and in his particulars alleged that the appellants " refused to employ the respondent, but illegally discharged him from their service," and claimed 48/!. 12s. At the trial the jury found a verdict for the respondent for ZZl, 12s. It was admitted that the agreement sued on in the first plaint was the same agreement as was sued on in the second plaint : — Held, that there was no evidence to go to the jury of such agree- ment, and that the Judge ought to have directed a nonsuit. Bamsley and another v. Taylor, 37 Law J. Eep. (n.s.) Q.B. 39. (2) To give jurisdiction under Master and Servant Act, 1867. 2. — P, a Guilder, being in want of workmen at Sheffield, wrote for some to the secretary of the Free Labour Registration' Society. He received from the secretary, in reply, a letter, inclosing a blank form, which shewed when filled up the nature and duration of the employment and the wages for the same, and which was headed " To be filled up by employers requiring hands from the Free Labour Registration Society." P filled up this form, and signed it under the words "Signa- ture of the employer," and inserted his address at Sheffield after the words " Address of em- ployer." This form, when so filled up and signed was received by the secretary of the society, and shewn to C, a workman, who, together with others, then signed a document, headed " Free Labour Society, in which it was stated " that, having accepted employment in Sheffield," "we," being the persons who had so signed it, " agree to the deduction from our wages " of a certain " fee to the said society for obtaining us the employment," and also " not to quit the service of our employer" without just cause : — Held, that there was upon the face 6f this document a sufficient connection between it and the form signed by P to enable the two to be taken together so as to form a writ- ten contract, signed by both parties, within the 4 Geo. 4. c. 34, s. 3, and therefore to be a contract within the jurisdiction of the Justices to make an order under the^ Master and Servant Act, 1867i for its fulfilment by C, although the service under it had not been actually commenced. Qusre —Whether the effect of the Master and Servant Act, 1867, is that, to be within such jurisdiction, the contract must be in writing, as required by 4 Geo. 4. u. 34, b. 3, when the service has not been commenced. It is no objection to an information and com- plaint laid under the Master and Servant Act, 1867, that the complainant clainftd therein the fulfilment of the contract of service, instead of claiming only compensation for its breach, or claiming in the alternative such compensatidn o* fulfilment, Crane v. Powell, 27 Law J. Rep. (h.s.) M. C. 43 ; Law Rep, 4 0. P. 123. "MASTER AND SERVANT (A), (B). 361 (4) Determination of ccntraot. 3. — A contract of service as farm bailiff is put an end to by the death of the master, unless the contrary be stipulated for by the terms of the con- tract. Farrow v. Wilson and Wife, 38 Law J. Eep. (».s.) C.P. 326 ; Law Rep. 4 C.P. 744. (o) Arrears of salary : right to interest. 4. — ^Where arrears of wages, to be ascertained in a particular manner, are due, the claimant, in the absence of fraud, will not be entitled to in- terest on each arrear as from the time when its amount was ascertained, but only to interest from the time of demand. Pearse v. Green, 1 Jac. & W. 135, distinguished. Bishton v. Grissdl, Law Eep. 10 Eq. 393. ((£) Offences hy servant: leaving service. 5. — Tinder 4 Geo. 4. e. 34, s. 3 (which enables magistrates to punish with imprisonment certain classes of workmen who are guilty of breaches of their contracts of service, or to abate the whole or part of their wages, or to discharge them from their employment) a workman may be convicted a second time for persisting, on his return from im- prisonment, in absenting himself from the service of his employer, as the contract is not rescinded by the mere fact of imprisonment. And although the offender bon4 fide believes that a conviction will dissolve his contract, and opinions of Judges can be cited in support of such a belief, this is no lawful excuse, but only matter for the discretion of the magistrates in imposing punishment. Unvnn and another v. Clarke, 36 Law J. Eep. (n.s.) M. C. 193 ; 7 Best & S. 400 ; Law Rep. 1 Q. B. 417. (B) LlABLLITT OF MaSTEE FOE SeEVAHT'S Negligence. (a) Evidence of employment. 6.- — The defendant, a wine merchant carrying on business in the Minories, sent his cjerk in a cart to Blackheath, to deliver wine and bring back empty bottles. The cart had reached King William Street, on its way back, when the clerk persuaded the carman to drive to the clerk's house, near the City Road, upon private business of his own. The cart while'in the City Eoad, andabouttwo miles out of its way, ran against and injured the plaintiff: — Held, on the authority of Mitchell v. Crasweller, 13 Com. B. Rep. N.S. 237; 22 Law J. Rep. (n.s.) C. p. 100, that, as it appeared that the driver had started upon an independent journey for a purpose unconnected with his master's busi- ness, the defendant was not liable for the conse- quences of the accident. Storey v. AsMon, 38 Law J. Rep. (n.s.) a. B. 223; Law Rep. 4 Q. B. 476. 7.— 'The defendant was a contractor engaged in making a sewer for the vestry of G; one of his men who was employed to take care of a horse and cart, and who had no right to go home to dinner or leave the horse and cart, took them to his house and left them outside whilst he was having his dinner; the horse ran away and damaged the plaintiff's railings : — Held, first, that there was evidence to warrant a jury in find- DiGEST, 1865-70. ing that the man was in the defendant's employ at the time of the negligsnce and accident ; and secondly, that the defendant was not entitled to notice of action under the 25 & 26 Vict. c. 102, s. 106. Whitman v. Pearson, 37 Law J. Rep. (n.s.) C. P. 156. 8. — 1. The defendants s.ent a barge under the management of their lighterman to a wharf for the purpose of being loaded ; he was unable to get up to it in consequence of a barge belonging to the plaintiffs lying in the way withoiit anyone in charge of it ; the foreman of the wharf told him to shove the other barge away, as it had no busi- ness there, and to bring his alongside ; he then moved the plaintiff's barge from the wharf, and made it fast to a pile in the river. ^ When the tide went down the plaintiff's barge settled upon a projection in the bed of the river, and was injured: — Held, that the defendants were responsible, as the lighterman, in doing the act complained of, was acting as their servant. Page v. Defries, 7 Best & S. 137. 2. Laml) v. Lady Elizabeth Polk, 9 C. & P. 621, overruled. 9. — An incorporated water company created a nuisance in a public highway, by leaving unfeneed a stream of water which they had caused to spout up in it. The horses of the plaintiff were fright- ened, ■Jind swerving from it fell into an unfeneed excavation in the highway made by contractors who were constructing a sewer, and were thereby injured: — Held, that the water company and not the contractors were the parties liable. HUl v. The New River Company, 9 Best & S. 303. (6) Negligence of fellow servant. 10. — The rule which exempts a master from liability to his servant for injury arising to such servant from the negligence of his fellow servant employed with him for a common object, is not confined to a common immediate object, but em- braces all cases where the risk of injury from the negligence of the one is so, much a natural and necessary consequence of the employment which the other accepts that it must be included in the risks which are to be considered in his wages. A carpenter employed to do work for a railway company, and amongst other things paint a^ shed at their station, is so necessarily brought into con- tact with the traffic of the line that risk of injury from the carelessness of porters employed to turn carriages on the turn-tables on the line is natur- ally incident to such an employment and within the rule. Morgan v. The Fate of Neath Railway Company, 35 Law J. Rep. (n.s.) Q. B. 23 ; 7 Best & S. 123 ; Law Rep. 1 Q. B. 149. U. — In an action against a railway company by one of their labourers for damage by collision, when being cairied hom6 from tSe place of em- ploym:ent, it iiss attempted to distinguish this case from the ordinary cases of common employ- ment (see last case) by the fact that the accident arose from there having been no pointsman at a certain siding, and that the guard directed the points to be opened when he ought not. The dis- tinction was negatived. It was also contended 3 A 362 mAstee and seevant— meteopolis local management acts. that as the piaintiiTB hours of lafcour were over when the accident happened he was not in the em- ployment of th» company. This was also negatived, as it appeared tliat it was the duty of the plaintiff to the company tO return home every evening. Tim- ney v. 'I%e Midland, Eailway Company, Law Eep. 1 C. P. 291. 12. — A railVvay-station, which was used both by the G W Company and the L and N-W Company, wae under the charge of a servant of the L and N-W Company. A train belonging to the G W Company, and driven by one of their engine- drivers, hating been improperly and negligently shunted into a siding, injured the plaintiff, a ser- vant of the L and N-W Company, who was there engaged in cleaning carriages on such siding : — . Held, that the injury was caused by the negligence of the engine-driver in the discharge of his ordi- nary duty to the G "W Company alone, and not in the course of any common employment with the plaintiff; and that therefore the plaintiff could maintain an action for damages against the G W Company. Warktrton v. TTie Great Western Bail- ■may Company, 36 Law J. Eep. (n.s.) Ex. 9 ; 4 Hurl. & C. 695 ; Law Rep. 2 Ex. 30. 13. — The plaintiff was a workman in the em- ployment of the defendant, a maker of locomotive engines. He was ordered by the defendant's fore- man to get upon a travelling crane moving upon a tramway, and used in hoisting engines, and he obeyed. It was the first occasion of using the crane, and the first time that the plaintiff Was em- ployed upon it. The piers supporting the tram- way gave way; it fell, and the plaintiff was injured. There was no evidence that there was any defect ' in the crane, that there was any negligence in the mode in which it was used, that the engine was of unreasonable or improper weight, that the defen- dant had employed unskilful or improper persona in building the piers, or that he knew of their insuflBciency; neither did it appear that he had personally interfered at the time of the accident : — Held, setting aside a verdict for the plaintiff, first, that the foreman was not a deputy or repre- sentative of the defendant, but a fellow servant of the plaintiff; secondly, that there was no evidence for the jury of personal negligence on the part of the defendant. Feltham f. England, 36 Law J. Eep. (n.s.) Q. B. 14 ; 7 Best & S. 676 ; Law Eep. 2 Q. B. 33, (c) Negligence of servant to obey order whickmaster would be bound to obey. 14. — The law as to the exemption of a master from liability for an accident happening to a ser- vant from the act of another servant in a common employment, considered, and held that where an accident happened to A in consequence of a defect in certain mining arrangeinents which had beell completed, under the superintendence of B's fore- man, before A entered the service of B as a miner, B was nevertheless exempt -from liability on th6 ground of a common employment. Tlie duty of a master to his servants on this head, where he does not superintend the work himself, is to select pro- per and comJ)etent persons to do So, and to fui'nish them with adequate materials and resources for the work. A servant does not cease to be a ser- vant within the rule as to common employment by being foreman or superior over the other workmen, Wilson V. Merry, Law Eep. 1 H. L. Sc. 326. (d) In general: [See CoLONiAi, Law, 12; Neghgencb, 27, 36; Patent, 28 ; Eailway Compant, 69-72.] 15. — By an Order of Council made under sta- tute 11 & 12 Vict. c. 107, s. 4, every inspector has power to cause to be cleansed and disinfected premises in which animals labouring under the cattle plague have been or may be, and every owner or occupier of such premises is to obey any order given by the inspector for that purpose, under a penalty of 20Z. An inspector gave an order to the foreman of the appellant who resided at a dis- tance to cleanse and disinfect certain premises, which order was disobeyed. Semble — That the ap- , pellant was not liable for the disobedience of the order by his foreman, per Cockbum, C. J. Semble, contrA, per Mellor, J. Searle v. BeynoMs, 7 Best & S. 704. MEECANTILE LAW AMENDMENT ACT. [See Limitation, Statute of, 12; Sheriff, 12.] Section 6 of the Mercantile Law Amendment Act, 1856, relates to persons under obligation at the time of the passing of the Act. De Wolf v. lAndsell, Cochrane' s Estate, 37 Law J. Eep. (n.s.) Chanc. 293 ; Law Eep. 6 Eq. 209. MEECHANT SHIPPING ACTS. [Amended 30 & 31 Vict. c. 124.] [Bee ShiMing (A) 17, (L) 1, (0) 1, (Q) 3; Infant (J).] MESNE PEOPITS. [See Evidence, 11.]' METEOPOLIS LOCAL MANAGEMENT ACTS. (A) PoWEES AND LlABIUTIES OF THE MeTBO- POLITAN BOAKD OF WoEKS. (a) Setting apart land for use of inhabit- ants of piiblic square. (i) Limitation of process to recover com- pensation from. (B) PoWeb of District Boabd to appobtiom PAVING EXPENSES. 'C) PoWEES AND Liabilities of Vesteies. (a) Order to tenant to pay rent to vestry. (b) Repair of highway. MEIROPOLIS LOCAL MANAGEMKNT ACTS (A). 363 (D) Paviko Rates. (a) What buildings are liable. (b) Practice ia Equity as to comjpensation money. [The Act, 18 & 19 Vict. c. 120, and the sub- sequent Acts for the improvement of the metro- polis varied, amended, and in part repealed. 32 & 33 Vict. c. 102.] (A) POWBBS AND LlABIMTtES OF THE MeTEOPOLI- TAN BOABD OF WoEKS. (o) Setting apart land for use of inhabitants of public square, L — By the 26 Vict. e. 13, s. 1, power is given to the Metropolitan Board of Works, in places ■within their jurisdiction, to take charge of' " any inclosed garden or ornamental ground set apart otherwise than by the revocable permission of the owner thereof in any public square, crescent, circus, street or other public place, for the use or enjoyment of the inhabitants thereof, and where the trustees. Commissioners or other body ap- pointed for the care of the same have neglected to keep it in proper order, or where such garden or ground has not been vested in or placed under the management of any trustees, Commissioners, or other body for the care of the same, and from the want of such care, or from any other cause, has been neglected," and to remove buildings or encroachments upon the land, " if after due in- quiry the person entitled to any estate of freehold in the same cannot be found, or if it shall be vested in any person by whom it is held, subject to any condition or reservation for keeping the same as and for a garden or pleasure-ground, or that the same shall not be built upon." And, by section 2, the right of any person, in right of any house or other property, to require that any gar- den or ornamental ground as aforesaid be kept or maintained as such, or that the same shall not be built upon, may, upon his request, be vested in the Board. The ancestor of the plaintiff was tenant in common of certain property in -the metropolis comprising the-houses and gardens of a square, and obtained a decree in Chancery for a com- mission of partition, under which some of the houses and the garden were allotted to him ; and the Commissioners directed that the owners and proprietors of his allotment should for ever after- wards, at their own sole and proper costs and charges, keep and maintain the square garden or pleasure-ground, and the railings round the same, in sufScient and proper repair as a square garden or pleasure-ground, in like manner as the same then was. By a second decree it was ordered, that the property should be held in severalty as allotted by the certificate of partition, and that the parties should execute mutual conveyances to each other of their respective allotments. This decree was carried into effect by indentures of lease and release, which recited the decree in Chancery and the direction of the Commissioners, but contained no covenants on the part of the person taking the allotment which included the garden, to keep it in repair as directed by the Commissioners. Sixteen years later, T became entitled to this allotment, and settled part of it, including the garden, on his son C, the residue being settled to his own use ; and C covenanted with his father, the settlor, to keep the ground then used as a garden in its then present form and in an open state, and in neat and ornamental order. The son afterwards conveyed the square garden in fee to E, who covenanted with him to keep the garden in its then state; and that it should be lawful for father and son and their tenants, inhabitants of the square, on payment of a reasonable sum, to have keys and admission at all times into the garden. The garden, after tiumerous mesne assignments, became vested in the plaintiff (who had in the meantime become devisee of the remainder of the property settled to the use of T) and W as tenants in common. The Board of Works, assuming to act under their statutory powers, took possession of the garden, which was in a neglected state and out of repair : — Held, affirming the judgment of the Court of Queen's Bench, 37 Law J. Eep. (n.s.) Q,. B. 11, Law Eep. 3 Q. B. 94, that the Board were not justified by the statute, which applied only to cases whfre land by Act of Parliament or otherwise had been vested in trustees, or irrevocably set apart for the use and enjoyment of the inhabitants of a square or street, and that no such privilege ap- peared to be vested in the inhabitants of the square in the present case. Tuli: v. The Metro- politan Board of Works, 37 Law J. Rep. (n.s.) Q. B. 272; 8 Best & S. 813 ; Law Rep. 3 Q. B. 682. (i) Limitation of process to recover compensation from, 2. — The plaintiffs claimed compensation in respect of their messuage having been injuriously affected by the sewage works of the defendants, made by them under the powers of the Metropolis Management Act, 1855 ; and by an agreement made between the plaintiffs and the defendants, under the Lands Clauses Consolidation Act, 1845, the amount of compensation, if any, to which the plaintifis were entitled was referred to an arbi- trator. In an action on the award of such arbi- trator, for the amount of compensation awarded : — Held, no defence that the claim for compensa- tion was made more than six months after the damage had been sustained, since section 106 of the Metropolis Management Act, 1862, solimitins; the time for issuing process, or instituting any proceeding against the defendants, for anything done under the powers of their Acts, does not ap- ply to such a claim, and, if it could apply, the ob- jection that the claim was made too late should have been set up when the plaintiffs gave notice of their claim, and not after the matter had, with the defendants' consent, been referred to an arbitra- tor. Judgment of the Court of Common Pleas, 36 Law J. Eep. (n.s.) C. P. 227 ; Law Rep. 2 0. P. 532, affirmed. Delany and another v. The Metropolitan 3 A 2 361 METROPOLIS LOCAL MANAGEMENT ACTS-METBOPOLITAN BUILDING ACTS. Board of Works, Z1 Law J. Eep. (n.s.) C. P. 59 ; LawEep. 3 0. P. 111. lAahility for poor rates. [See Eats, 18.] Liability of contractor. [See Neoligencb, 24.] (B) Power of Disthict Boabd to apportion PAVING liXPENSHS, 3 -By 18 & 19 Viet. c. 120, sect. 105, and 25 dt 26 Vict. c. 102, sect. 77, the costs of paving a new street, under the compulsory powers of the former Act, are payable by the owners of the land and houses abutting upon and forming the street, and are to be apportioned by the vestry or district board of works. By the interpretation clause of the latter Act, the expression "new street" is to include a part of any such street. A district board of works, after passing a resolution that a street should be paved, apportioned the expenses of paving a portion of it among the owners of property constituting such portion : — Held, that th^ apportionment was void, as being unequal and not within the powers of the Act. Whitchurch v. T%e Board of Works for the Fulham District, 35 Law J. Eep. (n.s.) M. 0. 145; 7 Best & S. 212; Law Eep. 1 Q. B. 233. (0) Powers and Liabilities of Vestries. (a) Order to tenant to pay rent to vestry. 4. — The vestry of a metropolitan parish, hav- ing incurred certain expenses for paving, gave the plaintiff, the occupier of a house liable to contri- bute thereto, notice, under the 25 & 26 Vict. c. 102,_sect. 96, to pay his rent to them and not to the defendant, his landlord. The plaintiff gave notice thereof to the defendant, who nevertheless distrained. The plaintiff thereupon paid his rent (which was less than the paving expenses appor- tioned to the house) to the vestry, and the defen- dant then merely levied the expenses of the distress and withdrew : — Held, that the defen- dant's right of distress was only taken away on actual payment by the plaintiff to the vestry, and the distress was therefore justifiable in the first instance, and that the expenses thereof might bo levied. Eyan v. Thompson, 37 Law J. Eep. (n.s.) C. P. 134 ; Law Eep. 3 C. P., 144. (J) Repair of highway. 6. — The common law liability of a parish to repair its highway has not been transferred by the MetropClis Loeal Management Act, 1855, 18 & 19 Viet. c. 120, to the vestries constituted under that Act, and therefore no action lies against any such vestry at the suit of an individual who has sus- tained damage in consequence of a neglect to repair the common highway within the parish of such vestry. Larsons v. The Vestry of the Parish of St. Matthew, Bethnal Green, 37 Law J. Eep. (N.s.) C. P. 62 ; Law Eep. 3 C. P. 66. (D) Paving Eates. (it) What buildings are liable. 6. — A, the owner in ijjo of land, entered into a building agreement with B, by which B was to have possession of such land -and to build thereon a certain number of houses, and to inclose and lay out a portion of the land as an ornamental plea- Bure-ground, for the exclusive use of the inhabitants of such houses. A lease was to be granted by A of each house when finished, and with the lease of the last house was to be granted a lease of the inclosed pleasure-ground ; and until all the leases were granted B was to pay A yearly rent in respect of the whole land, but the agreement was not to operate as a demise nor to give B any estate or interest in the premises until the leases were exe- cuted. B, under this agreement, inclosed and laid out the pleasure-ground, and built some of the houses of which, and of which only, leases were granted to him ; but not having completed all the houses : — Held, that A remained the owner of the land which had been inclosed as such pleasure- ground within the meaning of section 250 of the Metropolis Management Act, 1855, and therefore, as such owner, liable under section 77 of the 25 & 26 Vict. c. 102, to contribute to the expense in- curred by the parish vestry in paving a new street abutting on such pleasure-ground. The Bight Hon. Lady Holland v. The Kensington Vestry, 36 Liw J. Eep. (n.s.) M. C. 105 ; Law Eep. 2 C. P. 565. 7. — A church, together with the land appur- tenant to it, is not rateable either as a house or land to the expenses of paving a new street, under the powers of the Metropolitan Management Acts, 18 & 19 Vict. c. 120, s. 105, and 25 & 26 Vict, c. 102, s. 77. Angelly. The Vestry of Paddington, 37 Law J. Eep. (n.s.) M. C. 171 ; 9 Best & S. 496; Law Eep. 3 Q. B. 715. (i) Practice in Equity as to compensation money. 8. — Section 89 of the General Metropolitan Paving Act, 57 Geo. 3. e. 29, gives the Court of Chancery jurisdiction to order a vestry which has paid compensation money into Court, under the Act, to pay the costs of a petition for payment out. In re Baunders' Estate, Law Eep. 8 Eq. 681. [And see Lease 9; Public Health Act, 19.] METEOPOLITAN BUILDING ACTS. (A) Party Walls. (B) General Line of Boildinos. (C) Laying out Eoad for Building. (D) District Surveyor's Fees. (E) Notice of Action. (A) Pabty Walls. 1. — It does not necessarily follow that the re- moval of an adjoining house is an interference with the party structure, so as to entitle the ad- joining owner to the three months' notice under 18 & 19 Vict. c. 112, ss. 83, 85. A " brest-summer," let several inches into the party structure, which partly supported the pre- mises being removed, not considered a part of the party structure. Mqjor v. Park Lane Companu, Law Eep. 2 Eq. 453, METROPOLITAN BUILDING ACTS (A), (D).; 363 2.— The Metropolitan Building Act, 18 & 19 Viut. c. 1 22, does not enable the building owner to iaise or rebuild a party structure so as to obstruct the ancient lights of the adjoining owner. Crofts T. Haldine and another, 36 Lav J. Bep. (n.s.) a.B. 85 ; 8 Best & S. 194 ; Law Eep. 2 Q.B. 194. 3. — Where, under the Metropolitan Building Acts, a building owner takes down a party wall, no obligation is east on him to protect the privacy &c., of the exposed rooms of the adjoining owner, by means of a hoarding or otherwise. Thompson v< HUl and others^ 39 Law' J. Eep. (n.s.) C. P. 264 ; Law Eep. 5 C. P. 664. (B) Generai, Line of Buildings. 4. — By the Metropolis Local Management Amendment Act, 25 & 26 Vict. c. 102, s. 75, it is provided, that in certain cases no building shall be erected beyond the general line of buildings in the street in which it is situated, without the con- sent of the Metropolitan Board of Works, the general line of bnildiugs to be decided by the superintending architect of the Board ; and any building erected without this consent, or con- trary to the terms of it, may be ordered by a magistrate to be wholly or in part demolished. The appellant applied to the Board for consent to build a house, which was granted ; but with- out procuring the conditions upon which the consent was granted, he built the house higher than those conditions permitted : — Held, that a magistrate, upon c summons charging the appellant with having erected a building be- yond the general line of buildings in the street, and contrary to the conditions on which the con- sent of the Board of Works was obtained, might order him to demolish so much of the house as was beyond the general line of buildings, although this line had only been decided by the superin- tending architect on the day previous to the hear- ing of the summons. Bauman v. The Vestry of St. Pancras, 36 Law J. Eep. (n.s.) M. C. 127; 8 Best & S. 446 ; Law Eep. 2 Q. B. 628. The Vestry of St. George, Hanover Square, v. Sparrow, 33 Law J. Eep. (n.s.) M.C. 118; 16 Com. B. Eep. N.S. 209, considered. 5. — A person who erects a building within the limits of the Metropolis Management Act, 25 ,& 26 Vict. e. 102, without the consent in writing of the Metropolitan Board of Works is bound to erect it within the general line of buildings in the place where it is so erected ; and if the magistrate finds that the building is beyond such general line he has authority to make an order under section 75 of that Act for its demolition, though the decision of such general line by the superintending archi- tect to the said Board was not given until after the building complained of had been erected. The Board of Works for the Wandsworth District v. SaU, 38 Law J. Eep. (n.s.) M. C. 69 ; Law Eep. 4 C. P. 84. > (C) Latino out Egad foe Building. 6. — By the Metropolitan Management Amend- ment Act, 1862, 25 & 26 Vict. c. 102, a. 98, no existing road, passage or way, being of a less width than 40 feet, shall be hereafter formed or laid out for building as a street for the purposes of carriage traffic, unless it bo widened to the full width of 40 feet, the measurement of the width of such street to be taken half on either side from the centre or crown of the roadway to the external wall or front.rof the houses or buildings erected, or intended to be erected, on either side of it ; but where forecourts or other spaces are intended to be left in front of the houses or buildings, then the width shall be measured up to the fence or boundary, dividing or intending to divide such forecourts or Spaces from the public way, and any road, passage or way hereafter to be formed or laid oiit for either of the purposes aforesaid sh;ill be deemed to be a new street. By section 112, in the construction of the Act, the expression " new street " shall apply to and include all streets here- after to be formed or laid out, and a part of any such street. The appellant purchased a number of plots of land abutting on an ancient carriage-way, but separated from it by an oak fence. The way varied in width, being in many parts less than 40 feet wide, and from 41 feet to 28 feet opposite the appellant's ground, where the way was bounded by the permanent inclosure of a church and adjacent buildings, erected previously to the Act cited. At the time of the purchase two houses had been erected on the land by the vendor, leav- ing a space of 27 feet between the front walls of the houses and the boundary fence of the road. The appellant began to take down the fence in front of the houses, and to raise a brick wall in its place. A police magistrate having found that the appellant had begun to lay out the road for build- ing as a street within the meaning of section 98, and that the section did not require the road to be widened to the full width of 40 feet from the opposite fence of such road, but only to the width of 20 feet from the centre of the roadway to the boundary wall dividing the appellant's ground from the public way : — Held, that the finding was right, and the construction put upon the section a reasonable one. Taylor v. The Metropolitan Board of Works, 36 Law J. Eep. (n.s.) M. C. 53 ; Law Eep. 2 Q. B. 213. 7. — The respondent was the owner of land lying between roads A and B; he built houses along road A with back gardens running down to road B, and he then took down the old fence of road B, and placed an oak fence with gates 3 feet back on his land : — Held, that he could not be compelled, under the 25 & 26 Vict. c. 102, s. 98, to put back his fence to 20 feet from the centre of road B. The Metropolitan Board of Works v. Clever, 37 Law J. Eep. (n.s.) M. C. 126 ; Law Eep. 3 P. C. 531. (D) District Sukteyob's Pees. 8. Thefeesdue under theMetropoli tan Building Act, 1885, 18 & 19 Vict.c. 122, s. 51, to a district surveyor, one month after the roof of any build- ing surveyed by him in pursuance of the Aet shall have been covered in, are payable by whomsoever at that time answers the description of "builder, 366 METROPOLITAN POLICE— MINE (A).. occupier, or owner,'' and cannot be charged upon a person subsequently becoming the owner of the 'premises. Tubb v. Good, 39 Law J. Eep. (n.s.) M. C. 136; Law Rep. 5 Q. B. 443. (E) Notice op Action, [See Action, 12.] METROPOLITAN POLICE. [The whole of statute 3 & 4 Will. 4. c. 89, and section 10 of 20 & 21 Vict c. 164, repealed. 31 & 38 Vict. c. 67, ti. 4.] The summary powers conferred by section 24 of the 2 & 3 Vict. c. 71, upon the metropolitan magistrates, of dealing with a "person brought before any of the said magistrates charged with having in his possession or conveying in any man- ner anything which may be reasonably suspected of being stolen, or unlawfully obtained," do not apply to a case where the only possession of the property is a possession inside a warehouse, but are confined to the class of offences contemplated by section 66 of the 2 & 3 Vict, c 47. To bring a case within section 24, the "having in his pos- session " must be ejusdem generis with " convey- ing." Joseph Leonard Hadley, Jonah Hadley, and James Ebden, v. John BrownjoJm Perks and Thomas Holwaj/ Perks, 35 Law J. Eep. (n.s.) M. C. 177; 7 Best & S. 376 ; Law Rep. 1 a B. 444. The power given to a constable by section 66 to " stop, search and detain any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully ob- tained," is confined to cases where a person has or conveys the property in the street or other open place; and section 24 of the 2 & 3 Viet. c. 71 is supplementary to section 66 of the 2 & 3 Vict. c. 47, and gives the magistrate power to convict summarily persons who, under section 66, are liable to be arrested by a constable in the open. Ibid. Semble, per Blackburn, J. — That section 24 gives the magistrate the same power with regard to persons arrested under section 66 for offering for sale or pawn property suspected to have been stolen. Ibid. A person is sufficiently "brought" before a magistrate within the meaning of section 24 if he appear in answer to a summons ; and it is not necessary that he should have been actually ar- rested and brought in custody. Ibid. METROPOLITAN ROADS ACT. Apportionment of rent: form of action, [See Action, 14.] MINE. (A) Lease. (a) Construction. of. (J) Covenants as to working. (c) Power to lease unmened mines. (d) Lease hy Comurt of Chancery. (B) Sam of Mines apabt feom Subfaob bi COUET OF ChANCBEY. (C) WOBKING. (a) Rights and duties of adjoining owners, (1) Flow of water, (2) Suit for account of coat wrong- fully worked, (b) Bight of surface owner to support, (c) Violation of rules of working. (D) Resisevation of Mines in Convbtancb. (A) Lease, (a) Construction of. 1. — The mines under a farm of 181 acres were supposed to be divided by a fault running north and south in such a way as to leave about 83 acres on the west and 98 acres on the east ; and th^ owners, by several agreements, agreed to demise to S the mines lying to the westward of the fault, " supposed to be 83 acres or thereabouts," and to D the mines lying to the east of the same fault, " supposed to be 98 acres or thereabouts," and each lessee was to pay, in addition to a royalty, a dead rent amounting to about 21. per acre on the estimated area of the mines demised to him. No lease was executed to either of the lessees, but they entered upon> and commenced working the mines agreed to be demised to them respectively. S in the course of his workings arrived at a fault, which, if taken as the boundary between the mines agreed to be demised to him and those agreed to be demised to D, would leave him only 8 acres, instead of 83 ; and he worked through the fault. D then filed a bill for an injunction to restrain him from so working, and one of the Vice Chancellors granted the injunction ; but, upon appeal, this decision was reversed, the Comi being of opinion that, assuming the fault worked through by the defendant to be the same as the fault indicated in the_ agreement (which was not clear), the plaintiff was not entitled to a lease of mines so largely exceeding the estimated acreage of the mines agreed to be demised to him as the mines lying to the eastward of the fault, and ha could not be considered as constructively in possession of more than the lessors had by their agreement bound themselves to demise. Davis v. Shepherd, 35 Law J. Rep. (n.s.) Chane. 581 ; Law Rep. 1 Chane. 410. In construing the words " or thereabouts," when used to qualify the statement of the estimated quantity of mines agreed to be demised, the same principles ought to be acted upon as would guide the Court in construing the same words in an agreement for sale or demise of the surface. Ibid. 2. — In a contest between a licensee (not exclusive), who, in a demise of a fire-brick manu- factory, was empowered to dig, work, and burn the fire day from lands A, and also to work the iron- stone and coal to be found in connection with such fire-clay : and a subsequent lessee of the same lands and also the mines, seams, veins, or MINE (A). 367 beds of iron-stone and fire-clay found in connec- tion with sneh coal seams " as are workable as coal seams " :^-Held, that the lessee was entitled to dig and get fire-clay which was in connection with a coal-seam, although the coal by'itself was not a profitable working, but with the fire-clay it was. Qiisere — Whether, if the licensee proved that, by the abstraction of the fire-clay in question by the lessee, his manufactory might be stopped during the term, the lease to that extent would have been invalid. Carr v. Benson, Law Rep. 3 Chanc. 524. (i) Covenants as to working. S. — Declaration on a covenant in a lease of a colliery, by which the owners for the time being were entitled to as many coals at the pit's mouth as should be consumed in any one dwelling-house, to be,agreed upon by the majority of them. Plea, that the whole of the coals comprised in the demise were worked out in the fair and proper course of working the mines. The lease was for the term of twenty-eight years, from the 30th September, 1847, at the royalty of one- eighth of the minerals produced, and contained a, proviso that if the minerals should be fully and fairly gotten before the expiration of the term, the lessees might deter- mine itougiving twelve months' notice. Itappeared that some coal remained in the pit, but it could not be practically worked without costing more than it was worth : — Held, that the covenant was absolute, and therefore the plea was no answer. Cartwright v. Forman, 7 Best & S. 243. 4. — By deed in 1857, reciting the will of S, under which the defendant became tenant for life of the W estate, the trustees of the defendant conveyed lands at S, part of the estate, to R in fee, reserving the coal thereunder, with power to work and carry away the same, the defendant or the person or persons, for the time being entitled thereto, and his and their assigns, paying to B, his heirs and assigns, compensation for damage sustained thereby ; and the defendant covenanted that, notwithstanding any act done by him or S to the contrary, the trustees had power to grant and release the lands ; and that free from incumbrances created by the defendant or any of his ancestors, or testators, or any person rightfully claiming under him or them. In 1859 the plaintiff became the owner of a portion of the lands. In 1 844 S had granted a lease of mines under the lands at S, whereby the lessees covenanted that they would work and carry on the colliery, coal mines and seams of coal thereby demised in a fair, proper and orderly manner, and according to the best and most approved method of working collieries of a like natiire on the rivers Tyne and Wear, and so as to produce with safety the greatest quantity of merchantable coals from and out of each and every the workable seams thereof, and would not knowingly do or suffer to be done any wilful or ■negligent act, matter or thing whatsoever, which might hazard or endanger the colliery, coal mines or seams of coal, or which might bring any creep or trust upon them, or occasion any loss, damage or detriment thereto, or which might tend to hinder, stop or obstruct any of the watercourses, aircourses, passages or drifts which should be in or belonging to the same. The lessees also cove- nanted not to sink pits within 200 yards of any dwelling house, building, or farm-yard erected or to be erected upon the lands without consent in writing, and to leave unwrought the coal under the mansion-house and park and other parts of the superincumbent lands, but not including the lands at S. The lease contained other covenants for the security or benefit of portions of the sur- face, not including the lands at S, and for making compensation for damage. Dwelling-houses had been built upon the lands at S after the purchase by E, and the lessees had so worked the mines as to cause portions of the lands to subside and sink, and the dwelling-houses and their foundations to be weakened, cracked, injured, &e. In an action, by the plaintiff upon the covenant to pay compensa- tion and the covenant for title contained in the deed of 1857, the jury having found that the lessees had worked the mines according to the best and most approved method of working collieries of the like nature on the Tyne and Wear, and that the sinking of the laud was not caused by the weight of the houses : — Held, 1. By the Queen's Bench. That the plaintiff was not entitled to recover on the covenant for compensation. 2. By the Exchequer Chamber, affirming the judg- ment of the Queen's Bench, which followed a decfsion of Wood, V.C. in Shafto v. Johnson (not reported, but see p. 252), that the lessees were not only authorised but bound so to work the mines as to obtain therefrom the largest quantity of coals that could be gotten consistently with the safety of the mines, and without regard to the safety of any dwelling-house which might be erected after the date of the lease upon any portion of the surface not specially protected by any of its provisions, and therefore the covenant for title was broken by the grant of the prior lease. I'ayhr V. Shafto, 8 Best & S. 228. 5. — The lease of coal mines; which were capable of being worked by instroke from adjoining mines, reserved a minimum rent and royalties in the usual manner, but contained a proviso that in ease of pits being sunk the minimum rent was to be increased. It also contained a covenant on the part of the lessee to work " uninterruptedly, efficiently, and regularly, according to the best and most approved mode : " — Held, that under the cir- ■ cumstances, although the most approved mode of working was by sinking pits, the lessees were not bound ■ to sink them ; that the lessees were not bound to work so as to produce royalties in excess of the minimum rent ; and that this Court would not grant an injunction to restrain the lessees from •breaking their covenant. Wheatley v. The West- minster Brymho Coal and Coke Company, lAmiied, 39 Law J. Eep. (n.s.) Chanc. 175 ; Law Eep. 9 Bq. 638. (c) Power to lease unopened mines, 6.^As a lease of land with the mines, where there are open mines, does not justify the lessee 363 MINE (B), (0). in -working unopened mines, bo a power to leafe such land with the mines does not authorise a lease of unopened mines. Therefore, where land containing an open mine ■was settled, " with the mines and minerals there- under," with a power to the trustees of the settle- ment to lease, at a rack-rent, the premises therein comprised (not mentioning.the mines), subject to a proviso that " no lessee should be made dispunish- able of -waste ; " — Held, that a lease of unopened mines was not authorised by the po-wer. Clegg v.' Eowland, 35 La-w J. Eep. (n.s.) Chano. 396 ; Law Eep. 2 Eq. 160. Held, also, that a trustee appointed subse- quently to the lease, and ignorant of its existence, was not liable for want of diligence in allowing the tenant for life to receive the rents. Ibid. Observations upon Daly v. Becket, 24 Eeav. 114. Ibid. [And see Power (A) 1.] (d) Lease by Court of Chancery. 7. — "Where an infant was seised of land in fee, defeasible in the event of his dying under twenty- • one without issue, and all the persons who in any event would be entitled in defeasance cf his estate joined wLtl> him in a petition for the sanction of the Court to a mining lease under the 17th section of the 11 Geo. 4. & 1 Will. 4. c. 65, the Court, dis- tinguishing the case of In re Evans, My. & Cr. 318, made the order. In re Clark, 35 Law J. Eep. (n.s.) Chanc. 314 ; Law Eep. 1 Chanc. 292. (B) Saxb of Mijtbs apaet feom Sueface by CoUHT OF ChANCEET. 8.— The Court of Chancery has power to autho- rise the sale of mines, apart from the surface, granting an easement on the surface for the pur- pose of working the mines, for which a rent was to be reserved. Jn re Milward's Estate, Law Eep. 6 Eq. 248. 9. — Upon a petition under 25 & 26 Vict. c. 108, for leave to sell minerals separately from the suiT- face, service of the petition upon infant tenants in tail in remainder is not necessary. Be Prys^s Settled Estates, 39 Law J. Eep. (n.s.) Chanc. 760 ; Law Eep. 10 Eq. 631. (C) WOEKING. (a) Bights and duties of adjoining cwners. (1) Flow of water. 10.- — The barrier between two mineshavingbeen perforated, the owner of one of them artificially conducted his water so as to pass by the perfora- tions into the other, that mode of removing it from his, mine being most beneficial to himself, thereby causing irreparable damage to the plaintiff : — Held, that the Court would, on an interlocutory applica- tion, grant a mandatory injunction, so as to keep things in the state in which they were ante litem motam until the hearing. Semble, also — It would be immaterial whether the perforation were the wrongful act of ihe in- jured Q-wner or not. The doctrine in Smith v. Kenriek, 7 Com. B, Eep. 516, 563 ; 18 Law J. Eep. (n.s.) C. P. 172, explained. Westmimster JBrymJbo Coal and, Coke Company v. Clayton, 36 Law J. Eep. (n.s.) Chanc. 476. , ll.^-Defendants working mines in two places (A and B), B being to the deep of A, towards which the water from A would naturally flow in a proper course of working, and to save pumping, stopped up the only opening between A and B, so as to dam up the water in A, which they aban- doned. The water thus dammed up rose so high as to overflow by natural gravitation into the plaintiif's mines, through openings made by prede- cessors of the plaintiffs trespassing in the defen- dant's mines : — Held, that the plaintiffs were not entitled to any relief, but inasmuch as the defen- dants had in the first instance, and until restrained by injunction, used artificial means (pipes) to send the water to the plaintiffs' mines, the bill was dis- - missed -without costs. Lomax v. Stott, 39 Law J. Eep. (n.s.) Chanc. 834. (2) Suit for account of coal wrongfully worked. 12.- — In a suit for an account of coal -wrongfully worked by the defendant, where the working was inadvertent and without fraud, the Court, in as- sessing the compensation for the coal got by him, directed him to be charged only with the fair ' market value of the coal, as if the Cftal-field had been purchased by him of the plaintiffl QuEere — If the plaintiff was entitled to any allowance for wayleave in respect of coals taken through his mines, unless he could prove that his mines had been damaged thereby. Hilton v. Woods, 36 Law J, Eep. (n.s.) Chanc. 941 ; Law Eep. 4 Eq. 432. (b) Bight of surface owner to support. Compensation by railway company. [See Eailway Company, 55.] Custom of lord of manor to work mines so as to destroy the surface. [See Inclo- S-DEE, 2, 3.] Suit by canal company. [See Canal, 1.] [And see Covenant, 13.] (c) Violation of rules of working. 13.— By the 23 & 24 Vict. e. 151, s. 10, rules 1 and 2, — which direct that " an adequate amount of ventilation shall be constantly produced in all coal mines or collieries and ironstone mines, to di- lute or render harmless noxious gases, to such an extent that the working-places of the pits, levels and workings of every such colliery and mine, and the travelling-roads to and from such working-places, shall, under ordinary circum- stances, be in a fit state for working and passing therein," and that all entrances to any place not in actual course of working and extension, and suspected to contain dangerous gas of any kind, shall be properly fenced off so as to prevent access thereto, — it is meant, not only that the working- places and travelling-roads of the mine should be kept ventilated, but that all parts of the mine MINE (D)— MOETGAGE (A). 369 should Ido ventilated so as to render the working- places and travelling-roads safe. In a colliery subject to the above rules there was a heading, the top or fore-end of which had not been worlied for eighteen months; while this part of the heading was being put in repair, it became filled with explosive gas, in consequence of one of the workmen removing a door so as to divert the ventilation. Danger signals were at once put up, so as to prevent access to that part of the heading filled witJi gas, and there was no intention to re- sXime operations in it until it had been ventilated ; but the door was not immediately replaced, from a fear that this would be dangerous while the men were in the pit. Three days afterwards, and be- fore the ventilation was restored, an explosion took place in the end of the heading : — Held, that this part of the heading was a " working place " within the meaning of the statute, so that there had been a breach of the rule requiring ventila- tion to be maintained. Brough v. Homfray and others, 37 Law J. Eep. (n.s.) M. C. 177 ; 9 Best & S. 492 ; Law Eep. 3 Q,. B. 771. (D) Eesbrvation of MrNES in Conveyance. 14. — Upon a sale, in 1801, of lands in North- umberland, the conveyance, after reciting that the royalty was reserved to the vendor, reserved to him " all mines and seams of coal, and other mines, metals or minerals, as well opened as not opened, within and under the closes or parcels of ground hereby granted and released, witli full liberty to search for, dig, bore, sink, win, work, lead and carry away the same :" — Held, by the Lords Justices, in opposition to Vice Chancellor Kindersley, 34 Law J. Eep. (n.s.) Chanc. 572; 2 Dr. & Sm. 395, that freestone was included in this reservation ; but, in accordance with his Honour, that, under the reservation, the stone could not be worked except by means of underg;:ound workings. By Lord' Justice Turner — A mine is a way or passage under ground ; a quarry is a stone-pit, a place upon or above, and not under the ground. Bell V. Wilson, 35 Law J. Eep. (n.s.) Chanc. 337 ; Law Eep. 1 Chanc. 303. [And see IwCLOsnEE, 2, 3 ; TiAnd Tax, 4.] MISDEMEANOE. [See Felont ; Inbictjtent ; Obscene Book.] > 1. — On an indictment for misdemeanor the jury may find the prisoner guilty of any lesser misde- meanor that is necessarily included in the offence as charged. Begina v. Taylor, 38 Law J. Eep. (N.s.) M.C. 106; Law Eep. 1 C. C. E. 194. 2. — Where a prisoner was indicted and con- victed of a misdemeanor, punishable with penal servitude, and then evideirce was given of a previ- ous conviction of felony, but the indictment con- tained no allegation of such previous conviction : — Held, that a sentence of five years' penal servi- tude was right. Begina v. Siimmers, Law Eep. 1 -C. 0. E. 182; 38 Law J. Eep. (n.s.) M. C. 62. Digest, 1865-70. 3. — To expose an infant so as to endanger its life, as by sending it in a hamper by train, is an offence within 24 & 26 Vict. c. 100, s. 27, though the exposure be done without any intent to injure the child, and though no injury actually follow from the exposure. Begina v. Falkingham, 39 Law J. Eep. (n.s.) M. C. 47 ; Law Eep. C. C. E. 222. MISEEPEESENTATION. [See Fraud ; Faise Pretence.] MONEY HAD AND EECEIVED. [See Action, 1, 2.] MOETGAGE. [See Attornmint ; Fixtures; Shipping (M).] (A) Construction of. (a) What property passes. (b) Attornment clause. (B) POSSHSSION. (C) Power of Sai-k. (a) Sale by mortgageenot having legalesiate. (J) Purchase-money remaining on- mortgage, (e) Biijht to surplus proceeds of sale. (d) Extinguishment of power. (D) Eedemption. (a) Equitable release of interest. (b) Parties to suit for. (E) Eight to and Form of Ee-conveyancb. (F) Payment into Court. (G) Eight of Mortgagor's Assignees. (H) Eights and Priorities of Mortgagee. (a) Effect of fraud or suppression. (b) Constructive notice. (c) Possession of deeds, {d) Parting with deeds. (e) Further advances : tacking. (/) Marshalling. (g) Payment by mortgagor under mistake, (/*) In general. (I) Consolidation op Mortgages. (K) Merger of Charge. (L) . Legal Eights of Mortgagee. (M) Sub-Mortgagee. (N) Mortgage of Policy of Assurance. (0) Stock Mortgage, (p) accoukts. (O) Interest. (E) Eeceiver. (S) Costs and Allowances. (T) Stamps. (A) Construction of. {a) What property passes. 1, — A man being entitled to an estate in fee in 3B 370 MORTGAGE (A), (0); one moiety and a leasehold interest, subject to for- feiture on assignment, in the other moiety of a house, and also to other freehold and leasehold property, executed a mortgage deed which recited that he was entitled in fee to certain other pro- perty and to the said house, and conveyed the same in fee with the usual estate clause, and which also recited that he had leasehold interests in two other properties, one of which it conveyed by underlease, and the other it covenanted to assign on request : — Held, that the leasehold in- terest in the moiety of the said house did not pass. Francis and Wife v. Minton, administrator of G. F. Minton, 36 Law J. Eep. (n.s) C. P. 201 ; Law Eep. 2 C. P. 643. (i) Attornment clause. 2. — A mortgaged to B the lease of a house and two policies of assurance to secure 250^., with interest at lOZ. per cent., and after covenanting to pay the interest, 251., the rent reserved by the lease, 11 5^., and premiums on the policies, 32^. 125. Qd., he attorned tenant from year to year to B, the mortgagee, at the yearly rent of 1752., which sum exceeded the amount of the interest, the landlord's rent and the premiums by 21. 7s. 6d. A having become banlcrupt, the mort- gagee distrained under the attornment clause for 175?., as for a year's rent due, notwithstanding that the interest, the landlord's rent and the pre- miums had all been- duly paid, and seized goods .upon the premises belonging to a third party C. Upon bill by C to restrain the sale, demurred to by the mortgagee : — Held, upon the construction of the deed, that, notwithstanding the difference ' in the amounts, the attornment clause was intended to secure the interest, the landlord's rent and the premiums, and nothing more, and that these having all been duly paid, the distress was un- lawful. Secus — If the object of the attornment clause had been expressed to be for enabling the recovery of the principal as well. Hampson v. Fellows, 37 Law J. Eep. (n.s) Chanc. 694 ; Law Eep. 6 Eq. 575. 3. — A mortgage deed by which a messuage and premises were conveyed to the trustees of a building society to secure payment by the mort- gagor of the sums payable by him under the rules of the society contained a provision that in case of default in such payment, then immediately or at any time after such default should have been made, the mortgagor should and would hold the said premises, expressed to be thereby conveyed, as yearly tenant to the trustees from the day of the date of the deed at a certain yearly rent, and that the said trustees should have the same remedies for recovering the said rent as if the same had been reserved by a common lease. Default was made by the mortgagor under the deed, and in the following year the trustees distrained, for a year's rent, the goods of the plaintiff which were upon the premises. No notice was ever given to the mortgagor by the trustees of the society that they intended to treat him as tenant. The plaintiff brought trover for the goods so distrained against the trustees : — Held, that the trustees were not entitled to treat the mortgagor as a tenant until they had given him notice of their intention to alter the relation in which he stood to them, from that of mortgagor and mortgagee to that of tenant and landlord ; and that consequently the distress could not be justified, and the plaintiff was entitled to recover, Clon-al to the roadway, where his servant was with a cart. He stepped back on to the flagged way, and one of the flags which was in an insecxire state, gave way, and he fell into one of the cells and was injured : — Held, that, although the plaintiff in getting his coals was not doing so in the ordi- nary mode, yet the defendants were under the same obligation to provide for his safety as if he had been pursuing the ordinary mode, and that he was not a mere licensee, but engaged with the consent of the defendants in doing something in- cidental to the completion of the contract between himself and the defendants, in which both he and the defendants had an interest, and therefore the defendants were bound to take due and reason- able care for his security upon their premises. Holmes V. The North-Eastern EaiZway Company, 38 Law J. Eep. (n.s.) Ex. 161 ; Law Eep. 4 Ex. 254. Affirmed in Exchequer Chamber, 40 Law J, Eep. (n.s.) Ex. 121. 21. — The defendant agreed with one D for the setting up of some gas regulators, in his sugar- refinery. The contract stipulated they were not to remain unless a certain saving was effected, and that this was to be tested. In order to do so, it was necessary to examine the burners, and D's manager and the plaintiff, as his servant, went to the sugar-refinery for that purpose. In the re- finery there was a shaft for raising and lowering sugar, and necessary, usual and proper for the business. This shaft was unfenced, though when out of use it might have been fenced round. The plaintiff was warned by D's manager that the place was dangerous, and lights not allowed, and that he should keep by a man who would have a light ; but having left a tool in a part of the re- finery where he had been, he went back for it, and in returning to the man with the light fell through the shaft without any fault on his part ; — Held, affirming the judgment of the Court of Common Pleas, 35 Law J. Eep. (n.s.) C. P. 184 ; H. & E. 243 ; Law Eep. 1 C. P. 274, that where a person resorts to a building in the course of business on the express or implied invitation of the occupier, such person, using reasonable care, is entitled to expect the occupier to use reasonable care to pre- vent damage from unusual danger which he knows or ought to know ; that where there is evidence of neglect, it is a question for the jury ; and that in this case there was evidence for the jiuy that the plaintiff was on the defendant's premises on busi- ness by his tacit invitation, that the shaft was an unusual danger known to the defendant, and that damage occurred to the plaintiff from lie defen- dant and his servants not using sufficient means to avert and warn him of it. Indermaur v. Dames, 36 Law J. Eep. (n.s.) C. P. 181 ; Law Eep. 2 C. P. 911. The Court of Exchequer Chamber, on appeal, can only look to the pleadings as amended below, and not to the original pleadings. Ibid. (A) Occupier oj unfinished premises. 22. — A person in the occupation of part of an unfinished house and premises as a tenant, is re- sponsible for a nuisance committed on the premises. Therefore, where a person walking along a street in the dark, fell down a " hoist-hole," which was open and unprotected, and within fourteen inches of NEGLIGENCE,(D), (G). 385 the highway, and was injured : — Held, that the person, who as tenant, was in the occupation of the cellar, "hoist-hole," and part of the house, was liable for the nuisance, although the house, &c., was unfinished, and the builder had control over )ti_ and was about to put gates to the " hoist- hole." Hadlty t. Taylor, Law Eep. 1 C. P. 53. (D) In the custody of dangeeous goods. 23. — The defendant having placed a crushing- machine in a public market for exhibition, a child was injured by putting his fingers between the cogwheels while another child was turning the handle : — Held, that the defendant was not liable for negligence in leaving the machine unguarded where it was ; and that the injury sustained by the child, was the direct result of the improper meddling with the machine. Mangan v. Atherton, 36 Law J. Eep. (n.s.) Ex. 161 ; 4 Hui'l. & C. 388 ; Law Eep. 1 Ex. 239. (E) By Conteactoes and othees. 24. — ^The defendant, a contractor, was engaged by the Metropolitan Board of Works to construct a sewer along a highway. It was necessary to cut a trench in the highway, and, after buiJding the sewer, to fill in the trench, and restore and make good the surface of the highway. The sewer was built and finished ; the trench was filled in and completed by the defendant ; the work was pro- perly done ; the surface of the road was properly reinstated and made Sood, but, subsequently, a hole appeared in the highway which was caused, as the jury found, by the natural subsidence of the soil. Into this the plaiutiflf's horse fell, and the plaintiff's wife was injured. The defendant did nothing to the highway after he had completed the work ; but the jury found that the parish had not taken to it so as to relieve the defendant from the obligation of looking after the work and making good its subsequent defects : — Held, affirming the judgment of the Court of Queen's Bench, 86 Law J. Eep. (n.s.) Q. B. 166 ; 8 Best &. S. 272, that the defendant was not liable in an action brought against him by the plaintiff, he having done all that he was bound to do to the highway. Hyams v. Webster, 38 Law J. Eep. (n.s.) Q. B. 21 ; 9 Best & S. 1016 ; Law Eep. 4 Q. B. 138. 25. — Where money is paid by spectators at races or other public exhibitions for the use of temporary stands or platforms, there is an implied warranty on the part of the person receiving the money, that due care has been used in the construction of the stand by those whom he has employed as indepen- dent contractors to do the work, as well as by himself, or in other words, that the stand is reason- ably fit for the purpose for which it is let, so far as reasonable care and skill can make it so. The defendant, acting on behalf of a committee of which he was a member, employed certain persons to erect for them a temjjorary stand for the use of persons desirous of seeing a steeple chase. The stand having been erected, the defendant, on behalf of himself and his colleagues, received money from the plaintiff and other persons for the use of places Digest, 1865-70. on the stand. The contractors were competent and proper persons to be employed to erect the stand, but it was in fact so negligently erected that it fell and caused injury to the plaintiff, while he was _ 'upon it looking at the races. Neither the plaintiff nor the defendant knew of the improper construc- tion of the stand :— Held, affirming the decision of the Queen's Bench, 39 Law J. Eep. (n.s.) Q. B. 113 ; Law Eep. 6 Q. B. 113, that the defendant was liable for the injury sustained by the plaintiff. Francis v. Cockrell, 39 Law J. Eep. (n.s.) Q. B. 291 ; 9 Best & S. 950 ; Law Eep. 5 Q. B. 601. (F) By Seli.ee of Goods. 26. — The vendor of an article manufactured by himself of ingredients known only to himself is liable to the person for whose use he knows it is bought if damage results to that person in conse- quence of the articles being, through the vendor's negligence, unfit for the purpose for which he pro- fessed to sell it. A declaration by husband and wife alleged that the defendant was a chemist, and sold to the hus- band, to be used by the wife, a compound, the in- gredients of which were known only to himself, and which he professed was fit for washing the hair, and could be used without personal injury ; but that the defendant had acted so unskilfully, ne- gligently, and improperly in and about making the compound that it \i as not fit to be used for the said purpose, and through his negligence, &c., the wife's hair was destroyed: — Held, that the wife had a cause of action, and that the declaration was good. John George and Emma, his wife, v. Skivington, 39 Law J. Eep. (n.s.) Ex 8 ; Law Eep. 5 Ex. 1. By sheriff in conduciing sale. [See Sheeiff, 11.] (G) By Public Bodies. 27. — Trustees appointed by statute for public purposes, with power to levy tolls, but not deriv- ing\ any personal benefit, are liable in their cor- porate capacity for damage sustained by reason of the default of their servants or agents to the same extent as absolute owners levying tolls for their own profit, although there is no improper conduct on the part of such trustees. The Mersey Docks and Harbour Board Trustees v. Gibbs and others ; The Mersey Bocks and Harbour Board Trustees v. Penhallow and others, 36 Law J. Eep. (n.s.) Ex. 225. Dictum of Lord Cottenham, in Duncan t. Find- later, 6 CI. & F. 894, overruled. Ibid. 28. — By a local Act of Parliament, a/ duty was cast upon Commissioners of making and m^iintain- ing a sluice and cut for the discharge of drainage waters ; owing to the negligence of the persons employed by them, the sluice and cut were not maintained, and the plaintiff sustained damage by reason of the water overflowing his land : — Held, on the authoril y of The Mersey Books and Har- bour Board Tnislecs v. Gibbs, the last case, and reversing the jvdgment of the Court of Queen's Bench, that nhhough the Commissioners were a public body bound to discharge a public duty with- 3D S86 NEGLIGENCE (H), (I). out reward, and without funds, they were respon- sible for the negligence of those whom they em- ployed. Coe V. Wise, 37 Law J. Eep. (n.s.) Q. B. 262 ; 7 iJest & S. 831 ; Law Eep. 1 Q. B. 711. By the 217th section it was provided that "if any person, after the said Drainage Commissioners, or any person employed or authorised by them, shall have begun to carry this Act into execution, shall happen to sustain any damage ... by or in consequence of any act of the said Commis- sioners for Drainage, or their agents, workmen or servants, for which such person shall have had no recompense or satisfaction, . . . the damage or injury shall be ascertained and settled by a jury in manner herein provided," &c. : — Held, that this remedy only applied where the act by reason of which the damage or injury was suffered was one . which the Commissioners were authorised to per- form, and that they were not exempted from lia- bility to action in respect of damage or injury cifused by an act of omission. Ibid. Liability of vestry for non-repair of high- way. [See Methopoois Local Ma- nagement Act, 5.] (H) By Master or Employer. ■ (1) In general. [See Master and Servant.] (2) By employer gratuitously conveying servant. 29.— While defendant was gJatuitously convey- ing plaintiff in his carriage to the place where the latter had agreed to perform certain work for him, an accident happened to the carriage, and plaintiff was seriously injured : — Held that, in the absence of gross negligence, defendant was not liable to pay compensation for the injuries so sustained by plaintiff. Moffatt v. Bateman, Law Rep. 3 P. C. 115. (I) Contributory Negligence. (a) Questions to be left to the jury. 30. — 1 . In all actions for negligence, where there is evidence of negligence on the part of the plain- tiff, the proper question to be left to the jury is that laid down in Tuff\. Warman, 6 C.B. Rep. N.S. 585, viz., whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution, that, but for such negligence or want of ordinary care and caution on his part, the mis- fortune would not have happened. ^ 2. In an action for negligence, it appe^ired that the plaintiff's horse and cart were drawn up opposite his shop and left unattended, and that a horse and van of the defendant's were drawn up two or three feet in the rear of the cart, and also left imattended. No person actually saw the cir- cumstances leading to the accident, but it seemed that the two vehicles had been in collision, and the evidence was conflicting. The Judge, in summing up, withdrew from the jury the question of contributory negligence on the part of the plaintiff: — Held, that there must be a new trial for indiscretion. Walton v. The London, Brighton and South Coast Railway Company, H. & R. 424. (b) By railway passengers. 31. — The plaintiff, a boy twelve years of age, had entered a third-class railway carriage at night time, and was about to seat him self, when h& placed his fingers on a port of the door. His father was behind him getting into the carriage when a porter violently closed the door, which crushed the plaintiff's fingers and struck his father on the back :^-Held, that there was evidence of negligence on the part of the porter, which was properly submitted to the jury, and that there was no con- tributory negligence on the part of the plaintiff. Per Martin, B., Channell, B., and Pigott, B. Dis.- sentiente, Kelly, C.B. Coleman v. TTie South- Eastern Railway Company, 4 Hurl. & C. 699. 32. — The plaintiff, a passenger, after getting into a carriage of a train on the defendants' rail- way, left his hand for about half a minute on the door-jamb ; the defendants' guard, after crying out to the passengers to take their places, shut the doors of the carriages of the train, and not seeing the plaintiff's hand, injured his thumb in shutting the door: — Held, distinguishing the case from Fordham v. The London, Brighton and South Coast Railway Company, 37 Law J. Rep. (n.s.) 0. P. 176, that there was no evidence of negligence by the de- fendants, and that there was evidence of negligence by the plaintiff. Richardson v. The Metropolitan Railway Company, 37 Law J. Rep. (n.s.) C. P. 300. 33. — The plaintiffs were passengers in an ex- cursion train of the defendants. On arriving at the stiltion for which they were bound, the train being longer than the platform, some carriages, iu one of which the plaintiffs were riding, stopped at a point beyond the platform. It was then day- light. The carriage, in which the plaintiffs were, was constructed in the ordinary way, with an iron step about three feet from the ground and a foot- board immediately under and on each side of the step extending along the carriage. The plaintiffs were neither told to get out nor to remain in the carriage. The male plaintiff looked out of the window, but no servant of the company was at hand ; several other passengers got out of the carriages on each side, and after waiting a few moments he alighted. His wife then taking both his hands jumped as carefully as she could from the iron step to the ground, and in so doing sus- tained the injury for which the action was brought. No offer was made to back the train so as to bring the carriage to the platform, but no request was ever made to the company's servants to do so. It was not shewn that the length of the platform at the station was inadequate to the ordinary traffic of the place: — Held (per Byles, J., Mellor, J., Montague Smith, J., and Hannen, J., dissentiente Keating, J.), affirming the decision of the Court of Exchequer, 37 Law J. Eep. (n.s.) Ex. 98 ; Law Rep. 3 Ex. 160, that the accident arose from the acts of tho plaintiffs, and that there was no evi- dence of negligence on the defendants' part to go NEGLIGENCE (1)— NUISANCE. 387 the jury. Siner and Wife v. Tfte Great Western Railway Company, 38 Law J. Eep. (n.s.) Ex. 67; Law Rep. 4 Ex. 117. Foy V. The London, Brighton and South Coast Kailway Company, 18 Com. B. Rep. N.S. 225, distinguished and commented upon. Ibid. 34. — lu an action against a railway company for an injury occasioned by the negligence of the guard of a train, the evidence was that the plaintiff in getting into the railway carriage put his hand on the hinge-side of the door of the carriage, which was standing open, and before he had got quite in and taken his seat, the guard came and, witliout any warning, slammed the door upon the plaintiff's hand, and so jammed it between the door and the door-post. It appeared from the plaintiff's evidence at the trial that there was no handle to get into the carriage by, or at least none which could be seen, it being dark at the time : — Held, affirming the decision of the Court below, 37 Law J. Eep. (n.s.) C. P. 176 ; Law Rep. 3 C. P. 368, that there was evidence of negli- gence on the part of the defendants, and that there was not such clear evidence of contributory negligence on the part of the plaintiff, that the Judge at the trial ought to have withdrawn the case from the jury. Fordham v. The London, Brighton and South Coast Railway Company, 38 Law J. Eep. (n.s.) C. P. 324 ; Law Rep. 4 C. P. 619. 35. — The plaintiff was a passenger by the de- fendants' railway to D. The platform at D was of considerable length, and parallel, and close to the through rails on a level with the floors of the carriages, but at one end it receded gradually from the through rails to allow a branch line or sliding to run to an engine house. That part of the plat- form, which was parallel to the through rails and intended for passengers, was in every way sufficient for the proper drawing up of the train, but the engine driver drew up the train short of the proper place, so that the last carriage (in which was the plaintiff,) was opposite to the receding portion of the platform. 'There was a very dim light in the carriage, and no lights at this end of the platform, which was lighted only at the other end. The train having stopped for a few seconds, but the name of the station not having been called out, the plaintiff opened the door, stepped out, and fell into the chasm between the carriage and the plat- form, and was injured. Amongst those who came to help the plaintiff was an inspector, who said it was the driver's fault in drawing up short, and the train eventually proceeded on from this spot, with- out drawing up farther on : — Held, by Bovill, C.J., and Brett, J., that there was evidence for the jury of an invitation to alight, and of negligence on the part of the defendants, without contributory negli- gence of the plaintiff; and by Keating, J., and Montague Smith, J., that there was not. CocHe V. The South-Eastern Railway Company, 39 Law J. Rep. (n.s.) C. p. 226 ; Law Rep. 5 C. P. 457. (c) Acts of independent parties. 36. — The defendants, a gas company, having contracted to supply the plaintiff with a service pipe from their main to the meter on his premises, Jaid down a defective pipe from which the gas escaped. A workman, in the employ of a gas fitter, engaged by the plaintiff to lay down the pipes leading from the meter over the premises, negligently took a lighted candle for the purpose of finding out whence the escape proceeded. An explosion then took place, whereby damage was occasioned to the plaintiff's premises, to recover compensation for which the plaintiff brought his action against the defendants: — Held, that the damage was not too remote, and that the plaintiff not being the master of the workman, could not be considered as contributing to the damage by reason of his act, and was therefore entitled to recover. Burrows v. The March Gas and Coke Company, 39 Law J. Eep. (n.s.) Ex. 33 ; Law Eep. Ex. 67. (K) Statutoey Negligence by Railway Company. [See Railway Company.] (L) Damages : proximate cause. [See Damages.] NEW TEIAL. [See Practice at Law (Z) ; Probate (K) 21; Slander, 9; Divorce (S) (i); Patent (K) (.).] NOTICE OF ACTION. [See Action of Trial. See Practice at Law (L).] To quit. [See Landlord and Tenant (A) (c).] NUISANCE. (A) When restrained in Equity. (a) As against public bodies. (b) Riparian easement : prescriptive right. (c) Noise and crowd. (d) Fermaucncy of injury. (B) Action for. (C) Abatement of. (a) Under Nuisances "Removai Acts. (1) Summons to appear. (2) Order for abatement. (3) Power of local authority as to new sewers. (4) Biseased meat. (A) By injured party. (D) Indictment. (l. of each annuity. Held, that the claimant had no direct interest legal or equitable in the society's lands, and was not entitled to a county vote as a freeholder for life under 30 & 3] Vict. e. 102, sect. 6, subsect. 1. Robinson v. Ainge, Law Eep. 4 C. P. 429. (iv) Equitable freehold. 26. — By a deed, made with the consent of the ordinary, certain land of the annual value of 40s. was granted in exchange for other land unto and to the use of C and his successors, vicars of the vicarage of a certain parish, for the time being, for ever : — Held, that the incumbent who succeed- ed C in such vicarage had a sufficient equitable if not a legal freehold interest in the laud to qualify him for a county vote. Wallis v. Burkes, 39 Law J. Eep. (n.s.) C. P, 106 ; Law Bep. 5 C. P. 222. 27. — A piece of land, called a riding, divided into about eighty allotments of an acre each, had been held for centuries by the bailifif and bailiff burgesses of the town of C, who from time imme- morial, whenever a vacancy had occurred, had invested an inhabitant of such town with the pos- session of one of such allotments, ' to hold the same for his life and the life of his wife so long as he and she should reside in such town, subject and chargeable with waste, and also subject to the rules of the said bailiflf and bailiff burgesses. Each holder of such allotment manured and mowed the same, and after the crop of grass had been taken off by him the bailiff and bailiff bur- gesses were accustomed to grant tlie after-grass for five weeks to such other inhabitant as they thought fit, and at the expiration of such five weeks the whole riding was thrown open to all the inhabitants of the town to depasture sheep and cattle there until the 15th of December, when it was closed. Each holder of such allotment was separately rated to and paid the poor-rates, and the annual value of such allotment was between 3i. and 51. : — Held, that each holder had such an equitable estate of freehold in the land, with the possession of which he was so invested, as would confer a county vote ; and that he was in the actual and bonS, fide occupation of such land within the meaning of 2 Will. 4. c. 45, s. 18, not- withstanding the said rights of after-grass and pasture granted to the other inhabitants. Trcnjield V. Lowe, 38 Law J. Eep. (n.s.) C. P. 191 ; La-w Eep. 4 C. P. 454. (v) Leasehold interest. 28. — A testator devised the residue of a terra of 999 years to trustees in trust for the claimant for life, with remainders over : — Held, that this did not entitle the claimant to a vote as a,ssignee of the unexpired residue of the term under 2 Will. 4. c. 45, s. 20, and 6 Vict. c. 18, s. 74. Gainsford V. Freeman, 35 Law J. Eep. (n.s.) C. P. 92 ; H. & E. 352 ; Law Eep. 1 C. P. 129. 29. — A person entitled under the 2 Will. 4. c. 46, s. 20, to a county franchise in respect of his leasehold interest in a house in a borough which, before 30 & 31 Vict. c. 102, conferred no vote for the borough, loses his right to such franchise upon his tenant acquiring, under 30 & 31 Vict. c. 102. s. 3, a borough vote in respect of such house. Charlton v. Johnson, 38 Law J. Eep. (n.s.) C. P. 37 ; Law Eep. 4 C. P. 426. 30. — Byan agreement made between the owners of an estate, the trustees of a building society, and one C, the land was to be security for the advance by C of moneys to be expended in building cot- tages thereon, and the owners were to grant to the occupiers of the cottages leases for ninety-nine years on the reqxiest of C, with the consent of the trustees. By a subsequent agreement between the trustees and the claimant who occupied one of the cottages so built, it was agreed that on his paying certain moneys by instalments, and satis- fying all the terms of the agreement, and the rules of the society, the trustees should procure him a conveyance for ninety-nine years. Only a part of the money had been paid ; no request for a lease had been made by C, and none had ever been granted: — Held, that the claimant was not entitled to the county franchise given by the 30 & 31 Vict, c. 102, s. 5, as lessee or assignee for the unexpired residue of a term originally created for not less than sixty years. Trotter v. Watson, 38 Law J. Eep. (n.s.) C. p. 100 ; Law Eep. 4 C. P. 434. (vi) Description of qualification. 31. — The voter's qualification was described in the list as a " leasehold house and garden." The voter held the property under a lease to him for life, and if he died within sixty years, then for the remainder of sixty years : — Held, that the description was sufficient. Jones v. Jones, 38 Law J. E«p. (n.s.) C. p. 43 ; Law Eep. 4 C. P. 422. (2) For borough vote. (i) Bativg qualification. 32. — A rate for the relief of the poor, is not a rate ■' made " within the 30 & 31 Vict, c, 102, s. 3, at the time when it is signed by the overseer, nor at the time when it is allowed by the Justices ; and it must be both signed and allowed within the year of occupation. Jones v. Bubb, 38 Law J. Eep. (n.s.) C. p. 57 ; Law Eep. 4 C. P. 468. 33. — A rate for the relief of the poor, in order to be "made " within 30 & 31 Vict. c. 102, ». 3, must be entirely made within the year of occupa- tion, and it is so entirely made if the signing of PARLIAMENT (D). 399 the overseers, allowance by the Justices, and pub- lication be within that year, and it is immaterial that the steps previous to such signing were taken before the commencement of the year. A landlord who paid the poor-rates, and by arrangement with his tenant, charged a higher rent in consequence, got the overseers to put his tenant on the rate instead of himself without communicating with his tenant, who, however, appeared before the revising barrister to claim a vote in respect of the premises : — Held, that even if this act of the landlord could by ratification be made a claim by the tenant to be rated, the ratifi- cation must be within the year of occupation ; and that, therefore, the tenant's appearance before the barrister after the end of such year could not be a ratification. Ainsworth v. Creeke, 38 Law J. Bep. (n.s.) C. p. 58 ; Law Eep. 4 C. P. 476. 34. — A occupied exclusively and as sole tenant rooms in a dwelling-house, which were not so severed from the rest of the building as to consti- tute a house. A gave notice to the overseers that he occupied a part of the dwelling-house, and that he claimed to be rated for the same to the relief of the poor, and the overseers thereupon entered his name in the rate-book jointly with the otjier occupiers of the dwelling-house, but no separate rating was made with reference to A : — Held, that it not appearing that the part of the house which A occupied was separately rated, A was not the occupier of a dwelling-house within the meaning of the Representation of the People Act, 1867, 30 & 31 Vict.c. 102, s. 61. Cuthbertson V. Hains, 38 Law J. Eep. (n.s.) C. P. 109 ; Law Eep. 4 C. P. 625. 35. — 1. A occupied a dwelling-house for the requisite twelve months. His landlord paid all rates, A paying him an increased rent in conse- quence. There had been two rates for the parish in the twelve months. The overseers without any claim mide by A wrote his name in both rates at a time sabsequent to the making of the second rate : — Held, A was not entitled to be on the list of voters. Norris v. The Town Clerk of Hastings, Andrew's case. Law Eep. 4 C. P. 498. 35. — 2. The fact that, under circumstances pre- cisely similar to those in the last case, No. 35 (1), the overseers wrote the voter's name in the rate- book in respect of the rates without any claim made by him, in no way affects the question. The vote must be disallowed. Jameson's case. Law Eep. 4 C. P. 498. 38.— By the 31 & 32 Vict. c. 46, s. 14, any per- son who in consequence of a change of boundary of a borough by the Act, would be entitled to be registered if he had been rated for the required .period, shall be entitled to be registered notwith- standing he has not been so rated if he has been rated to all poor-rates made after the passing of the Act. A would have been entitled under the above section to vote for a borough ; but no rate had been made in the parish after the passing of the Act, and he had not claimed to be rated nor of course paid any rates : — Held, that A was entitled to be registered as a voter. Clarke v. Brown, Law Eep. 4 C. P. 600. (ii) Composition. 37. — The owner of premises, the occupier of which claimed to be entitled to a borough vote in respect of such occupation, under 30 & 31 Vict. e. 102, had, prior to that Act, entered into an agree- ment under the Small Tenements Act, 13 & 14 Viet. e. 99, s. 4, for a year, from March, 1867, to March, 1868, to pay a composition instead of the full ordinary poor-rate in respect of such premises, whether occupied or not :— Held, that the liability of such owner to be rated instead of the occupier did not cease on the 15th of August, 1867, the date of the passing of the 30 & 31 Viet. c. 102, but continued to the 29th of September, 1867, in- asmuch as such agreement to pay such composi- tion was a " composition " within the meaning of proviso ( 1 ) to section 7 of that Act. Mason v. Ben- nett and others, 38 Law J. Eep. (n.s.) C. P. 48 ; Law Rep. 4 C. P. 502. 38.— The word '• composition " in 30 & 31 Vict. c. 102, s. 7, proviso (1), applies not only to the case of an owner paying less than the full amouot of the poor-rates by agreement, but also to the case where he pays a less amount, simply by order of the vestry under the Small Tenements Act. Trotter V. Trevor ; Hanks v. Jones, 38 Law J. Rep. (n.s.) C. P. 51 ; Law Rep. 4 C. P. 502. (iii) House or building. 39. — The voter occupied as tenant a room in a set of chambers, which, though severed from and having no direct communication with the other room of the set, communicated, with a vestibule common to both rooms. The door of the vestibule opened on a landing of a public staircase, and the voter had a right of way over the vestibule, and in common with his landlord, who occupied the other room of the said set, had control over the door ' communicating with the said landing: — Held, that the subject of the voter's occupation was not a house or building within the meaning of 2 Will. 4. c. 45, s. 27, and therefore the voter was not enti- tled to the borough franchise in respect of such occupation. Cuthbertson v. Butterworth, 38 Law J. Eep. (n.s.) C. p. 98 ; Law Rep. 4 C. P. 523. 40.— To be a " counting-house " within the meaning of 2 Will. 4. c. 45, s. 27, it is not neces- sary that it should be an entire house ; on the contrary, it may be part of a house or other build- ing, as the word " counting-house " is used in that section according to its ordinary acceptation. Where therefore a room was let to and occupied as a counting-house by a tenant who had a key to the outer door of the house, and who had also, and to the exclusion of the landlord, the key of the door which separated such room from the land- ing of the staircase, which gave access to that and the other rooms of the house, also let out to sepa- rate tenants as counting-houses or offices : — Held, that such room sufficiently constituted a counting- house within 2 Will. 4. c. 45, s. 27. Piercy v. Maclean, 39 Law J. Rep. (n.s.) C. P. 114; Law Rep. 5 C. P. 252. 41. — As far as the purpose for which a struc- ture may be used in order to constitute " a build- ing," within the statute 2 Will. 4, c. 45, s. 27, there 400 PAELIAMENT (D). is no distinction between agricultural and com- mercial industry, and a building really used for warehousing manure, Jcept there for the purposes of the land, is sufficient to qualify, as far as its use is concerned. Norrish v. Harris, Gillham v. the same, Mason t. the same, Adains v. the same. Front V. the same, Berry v. tlie same, Hodges v, the same, 35 Law J. Eep. (n.s.) C. P. 101; H. & E. 328 ; Law Eep. 1 0. P. 155. When the amount required for a borough quali- fication, under section 27 of the Eeform Act, is made up partly by building and partly by land, there is nothing to define the proportion which the building must bear to the value of the land ; and it is therefore sufficient to give such qualification, so far as the value of the biiilding is concerned, if the building bon^ fide add to the land's real an- nual value to let, though in a small degree. Ibid. (iv) Occtipation. 42. — A tenant of a set of chambers in the Inns of Court, forming a house within 2 Will. 4. c. 45, s. 27, does not cease to occupy them within the meaning of that section, by letting a room unfur- nished to another person, he himself still retaining another room for his own use, and being bound to supply a clerk, a laundress, and coals for such person, and pay the rates and taxes, though such person has a key of the outer door and may lock up his room if he pleases. Smith v. Lancaster, 39 Law J. Eep. (n.s.) C. P. 33 ; Law Eep. 5 C. P. 246. 43. — A partnership of more than twenty per- sons for carrying on the business of farming is within section 4 of the Companies Act, 1862, 25 & 26 Vict. c. 89, and if not registered under that Act is illegal ; and where land and building have been rented by such partnership for carrying on such business, and the only occupation thereof by its members is a constructive one arising out of the occupation of one who acted as manager, no quali- fication, under section 27 of the Eeform Act, can be acquired by its members, as the occupation cannot be shewn without disclosing the illegal partnership. Harris v. Amery, 35 Law J. Eep. (n.s.) G. p. 89 ; H. & E. 358 ; Law Eep. 1 C. P. 148. 44. — The Naval Knights of Windsor were in- corporated by royal charter, which provided that they should observe and obey the rules, &c.,-at any time made by the Crown for their government and declared by the Court of Chancery, should lead virtuous &c. lives, daily attend divine service, live together in a collegiate manner in the house or building to be erected for their residence, keep table together in their common hall, not to be absent from their said house more than ten days without licence, and not lie out of their house, &c., be obedient to a governor and visitors in the ob- servance of the rules, &c., therein contained, or which the Crown should make for their orderly behaviour and government, and be liable to ex- pulsion for disobedience, marriage, scandal, or crime. A mess rooip, &c., and seven dwelling- houses were erected, and each knight occupied a house and repaired and paid taxes for the house he occupied: — Held, that the knights simply held their respective houses as members of and for the convenient carrying out of the purposes of the corporation, and that the corporation occupied such houses through the persons of its individual members, and that therefore they did not occupy as owners or tenants within 30 & 31 Vict. c. 102, s. 3. Durant v. Kennett, 39 Law J. Eep. (n.s.) C. P. 107 ; Law Eep. 5 C. P. 262. 45. — Where a canon occupies a house in right of his canonry, the presumption is that he does so in his separate capacity as a corporation sole, and not as a mode of enjoyment by the corporation aggregate of the dean and chapter, of which he is a member, and that therefore his interest in such house is sufficient to entitle him to a borough vote. Ford V. Harington, 39 Law J. Eep. (n.s.) C. P. 107 ; Law Eep. 6 C. P. 282. 46. — The appellant claimed a borough vote in respect of his occupation of one of a series of houses known as Lord Coningsby's Hospital, to which he had been duly nominated. The persons who occupy these houses are nominated by the owner of certain estates, out of which fixed pay- ments are made to such occupants, who are called servitors, and are subject to certain rules made for their government in 1614, when the hospital was founded, and which they must obey iinder the penalty of a fine. They pay no rent, and clothes and coals are supplied to them out of the funds of the hospital. When a man is appointed to one of the houses he holds it, with a garden near to it, for life, and cannot be disturbed in his occupation by any one, except for a murder or a felony, or something of that kind. None of the houses had ever been let by any of the persons appointed to them, but a garden appertaining to the house held by appellant had been let by him because he was too old to cultivate it himself: — Held, that the appellant had a freehold interest in the house to which he had been appointed, and that his occupa- tion thereof was not of such an eleemosynary character as to prevent his acquiring the borough franchise as an inhabitant occupier under the Ee- presentation of the People Act, 1867. Fryer v. Bodenham, 38 Law J. Eep. (n.s.) C. P. 185; Law Eep. 4 C. P. 529. (v) Joint occupier. 47. — A man, who is an inhabitant occupier, as tenant of a dwelling-house within a borough, and otherwise qualified within the meaning of 30 & 31 Vict. c. 102, s. 3, does not become a joint occupier within the proviso to that section, by letting to a lodger a furnished bed-room with the part use of a sitting-room in such dwelling-house. Brewer v. M'Gowen, Town Clerk of Bradford, 39 Law J. Eep. (n.s.) C. p. 30 ; Law Eep. 6 C. P. 239. (vi) Lodger franchise : college rooms. 48. — Fellows, scholars and undergraduates of colleges of the University of Cambridge are not lodgers within the meaning of section 4 of the Ee- presentation of the People Act, 1867, in respect of their occupation of rooms in their respective colleges, although by the Cambridge Award Act, PARLIAMENT (D). 401 1856, the whole of a college property is to be deemed to be in the oocupation of the college, ■which is to be assessed to the rates in its corporate name ; and even if they be such lodgers, they are not entitled to vote in respect of such occupation for the borough of Cambridge, inasmuch as the 78th section of the Keform Act, 2 Will. i. a. 45, ■which prohibits any person so voting in respect of the occupation of any rooms in any of the colleges of the University, is incorporated with the Repre- sentation of the People Act, 1867. Barnes and others v. Pettrs, Ferown and others v. Peters, Bake- well and others v. Peters, 38 Law J. Rep. (n.s.) C. P. 266; Law Rep. 4 0. P. 539. (vii) Women. 49. —Neither by common law nor by statute are women entitled to vote at elections for Members of Parliament. Charlton v. Lings, 38 Law J. Rep. (n.s.) C. P. 25 ; Law Rep. 4 C. P. 374. [See also No. 20 supra.] (6) Claim to be rated. 50. — The qualification required for a borough franchise, under the Representation of the People Act, 1867, must be complete by the 31st of July of the qualifying year. Therefore, a person claim- ing such franchise as a rated inhabitant occupier, but who had never been rated to any of the poor-rates which had been made during the twelve months previous to the 31st of July of the qualifying year, cannot rely on a claim to be rated made under the 2 Will. 4. c. 45, s. 30, which was not served on the overseers until after such 31st of July. Medwin v. Streeter. 38 Law J. Rep, (n.s.) C. p. 180 ; Law Rep. 4 C. P. 488. (c) Notice of objection. (1) In counties, (i) Form of. 51. — ;It is not necessary to give a separate notice of objection to the overseers in respect of each county voter objected to ; but a notice stating that the objector objects to the names of the persons mentioned in a list at the end of such notice suf- ficiently follows the Form No. 4 in Schedule (A) to the 6 & 7 Vict. c. 18, to satisfy the 7th section of that Act. Smith v. Holloway, 35 Law J. Rep. (n.s.) C. p. 100 ; H. & E. 315. (ii) Date. 52. — The notice of objection served on the over- seers was dated the 12th of August, but was signed on the 18th of August: — Held, that this did not vitiate the notice. Jones v. Jones, 35 Law J. Rep. (n.s.) C. p. 94 ; H. & E. 341 ; Law Rep. 1 C. P. 140. (iii) Description ef objector. 53. — If an objector, to prove service of his notice of objection, produce a duplicate stamped at the post-ofSce, and the person objected to then produce the notice actually served to prove the duplicate incorrect, the objector may rely on this notice actually served. In a notice of objection the abode of the ob- jector was described thus— "-(Place of abode as Digest, 1865-70. described on the register), 22, Southampton Street, Bloomsbury, London, W.C. ; (present place of abode), 110, Guildford Street, Russell Street, W.C. " ; the revising barrister decided this was misleading : First, because it did not state in what city, to^wn or place Guildford Street, Russell Street, W.C., was situate ; secondly, because iu the W C. district there was only one Russell Street, viz., Russell Street, Covent Garden, a long distance from Guildford Street, and another street called Great Russell Street, also a long distance there- from : — Held, that as the reasons were given the Court would review the decision, and that, as there was only one Guildford Street in the W.C. district, and a person taking the whole notice together would conclude the present direction was London, W.C, the decision was -wrong. Iforris ■f. Pilcher, 38 Law J. Rep. (n.s.) 0. P. 69 ; Law Rep. 4 C. P. 417. 54. — In a notice of objection the abode of the objector was simply put as " Bronygraig." Evi- dence was tendered to shew that the person objected to, on going to C, the to-wn and parish where the property qualifying the objector was, could easily have found the objector by inquiry, and that Bronygraig was well known there, and could easily be found. The revising barrister decided that the notice was bad in law on its face, and could not be affected by such evidence, or by the fact that, under the particular circumstances, the notice gave the requisite information : — Held, that the sufficiency of the description of the ob- jector's place of abode was matter of evidence, and that the decision was -wrong. Jones v. Prit- chard, 38 Law J. Rep. (n.s.) C. P. 67 ; Law Rep. 4 0. P. 414. (iv) Description of voter. 55. — Not-withstanding there are, since the 30 & 31 Viet, c 102, s. 30, and 31 & 32 Vict. c. 68, s. 19, separate lists of voters for a county, it is sufficient if the notice of objection served on the overseers be in accordance with the Form No. 4 in Schedule (A) to 6 Vict. u. 18, s. 7, and the notice of objection to the person on the register be in ac- cordance -with Form No. 2 in Schedule (A) to 28 Vict. c. 36, s. 6, -without, in either case, particularly specifying the list of voters to which the objection applies. Charlton v. Johnson, Eees' case, 38 Law J. Rep. (n.s.) C. p. 39 ; Law Rep. 4 C. P. 400. (v) Contents of notice. 56. — The notice of objection to an occupier of a tenement of the rateable value of 12^., put on the list of voters by the overseers, must state the grounds of objection. Bennett v. Brumfitt, Alder- san's case, 38 -Law J. Rep. (n.s.) C. P. 65 ; Law Rep. 4 C. P. 407. (2) Cities or boroughs. (i) Address of, sent by p'ost. 57. — Where a city voter's place of abode is described in the list -with the parish in which it is situate, but not the city or county, the addition of the city and county to such described place of abode in the address of a notice of objection sent by the post to such voter, does not prevent the 3F 402 PAELIAMENT (D). notice from being in compliance with section 100 of the 6 & 7 Vict. c. 18. Cotton v. Frail, 36 Law J. Eep. (n.s.) C. p. 67 ; Law Eep. 2 C. P. 86. (ii) Signature of objector. 58. — There is a sufficient signatxire within the 6 Vict. c. 18, o. 17, if the objector stamps on the notice of objection a fac-simile of his signature. Bennett v. Brumfitt, 37 Law J. Eep. (n.s.) C. P. 25 ; Law Eep. 3 C. P. 28. (iii) Description of objector. 59. — In a notice of objection given to aborough voter, the objector was described as " on the list of voters for the parish of St. Peter, in the said borough." There being in the borough a list for the parish of St. Peter, in which the objector's name did not appear, as well as a freemen's list, in which his name was inserted, it was held, in conformity with Tudball v. The Tovm Clerk of Bristol, b Man. & G. 5 ; 13 Law J. Eep. (n.s.) C. P. 49, that the notice of objection was insufficient. Bright v. Devenish, 36 Law J. Eep. (n.s.) C. P. 71 ; Law Eep. 2 C. P. 102. 60. — The place of abode of an objector was de- scribed by him in a notice of objection to the party objected to, as " Bartonsham," "on the list of voters for the parish of St. 0." Bartonsham was a known district, containing streets and villas ; but the revising barrister found that by going to such district the placeof abode of the objectorcould easily have been discovered: — Held, that the description was sufficient,' thequestion as to its sufficiency being one of fact, on which the finding of the revising barrister was conclusive. Thackway v. PH-cher, 36 Law J. Eep. (n.s.) 0. P. 73 ; Law Eep. 2 C. P. 100. 61. — The parliamentary borough of Penryn and Palmouth consists of six places, viz., the old borough of Penryn, the town of Falmouth, and four parishes ; and each of these six places has separate overseers, and a separate list. In a notice of objection given to a voter for the borough, the objector, whose name appeared on the said old borough Ust, was described as "on the list of voters for the borough of Penryn " : — Held, that the notice was good, as it sufficiently pointed out the list on which the objector's name would be found. Moon V. Andrews, 38 Law J. Eep. (n.s.) C. P. 97; Law Eep. 4 0. P. 461. 62. — In a notice of objection to a borough voter, the objector was described as "on the list of voters for Golborne Street, in the borough of W." The borough of W consisted of three townships, each having a separate overseer and separate list: — Held, however, a sufficient description, if it were such as would be commonly understood in the loca- lity to designate the list on which the objector's name would be found. Allen v. The Town Clerk of Warrington, 39 Law J. Eep. (n.s.) C. P. 113. (iv) Description of voter. 63. — A notice of objection to a borough voter served on the overseers of the only parish in such borough, objected to the voter " being retained on the list of persons entitled to vote in the election of a Member for the said borough." There were two lists published by such overseers, one of per- sons entitled to the occupation franchise, and on which list was the voter's name, and the other of persons entitled in respect of reserved ancient rights, and on which last list, there was the name of only one person, viz., that of the objector. It was proved on the part of the overseers that they were not misled by the notice, but that they knew perfectly well that the objection was intended to apply to the list of persons entitled to the occupa- tion franchise and not to the other list, and they accordingly so acted thereon, and duly published the name of the votar in the list of persons ob- jected to: — ^Held, that under these peculiar cir- cumstances, there was enough to warrant the. re- vising barrister coming to the conclusion that the notice did sufficiently specify the list on which the voter's name appeared, and the revising barrister having in substance found that the description was such as would be commonly understood to apply to the list of occupiers, the Court could not say that he was wrong on tJiese facts, or hold as a matter of law that the notice was bad. Aldridge v. Med- win, 38 Law J. Eep. (n.s.) C. P. 46 ; Law Eep. 4 C. P. 464. (v) Withdrawal of notice. 64. — The public have an interest in an objec- tion to a person's name being retained on the list of voters ; and therefore, where notice of objection to such name has been given, the objector has no right of his own accord to withdraw it; at all events, where such notice of objection has been duly given, and the objector appears before the revising barrister in support of it, and proves the giving of such notice, the revising barrister must require the voter's qualification to be proved, and he has no jurisdiction to inquire whether the objector has or not previously withdrawn his notice of objec- tion. Proudfoot V. Barnes, 36 Law J. Eep. (n.s.) C. P. 68 ; Law Eep. 2 0. P. 88. (d) Jurisdiction of revising barrister. 65. — Where a person is on the list of voters, and the qualification is good on the face of it, the revising barrister has no power to strike his name off the list, although the same qualification has been held by this Court to be bad, unless the vote be regularly objected to by a properly quali- fied person. Smith v. James, H. & E. 338 ; Law Eep. 1 C.P. 138. 66. — ^Where the qualification of a claimant to a borough vote consists of a house which is num- bered, and the number has been omitted in the claim, the revising barrister has power, under section 40 of the 6 & 7 Vict. c. 1 8, to amend the claim by inserting in the fourth column the number of the house, if it be supplied to his satisfaction before completing the revision of the list. Barlow V. Mumford, 36 Law J. Eep. (n.s.) C. P. 65 : Law Eep. 2 C. P. 81. (e) Practice on appeals. 67.— Women are not within section 42 of 6 Vict. c. 18, which gives the power of appeal from PAROCHIAL ASSESSMENT— PARTIES TO ACTIONS AND SUITS (A), (B). 403 the decision of a revising barrister. Wilson v. the Town Clerk of Salford, 38 Law J. Rep. (n.s.) 0. P. 35 ; Law Rep. 4 C. P. 398. 68. — If appeals have been consolidated by the revising barrister which do not depend upon the same point of law, the Court will dismiss the con- solidated appeal. Bennett v. Brumfitt, Ashcroft's case, 38 Law 3". Rep. (n.s.) C. P. 72 ; Law Rep. 4 C. P. 399. 69. — Where the Court sends a ease back to the revising barrister to decide a matter of fact which he has referred to the decision of the Court, instead of deciding it himself, and the appellant then drops the appeal, the respondent is not entitled to costs. Lawe v. MaiUard, 38 Law J. Rep. (n.s.) C. P. 179 ; Law Rep. 4 C. P. 547. PAROCHIAL ASSESSMENT. [See Rates.] PARTIES TO ACTIONS AND. SUITS. ■.[See Pleading at Law; Pleading in Equity.] (A) Parties to Actions. (B) Paeties to Suits. (a) Suit by Foreign Government. (4) Bill by feme covert administratrix. (e) In suits for specific performance. (1) Against railway company. (2) By sub-purchaser. {d) Trustee and cestui que trust. (e) Assignee in bankruptcy. If) In injunction suits. (A) Parties to Actions. [See Action.] 1. — A Spanish firm, C & Co., authorised the plaintiff, a London merchant, by letter of attorney, to sign in the name of the firm a contract for the sale of their mines in Spain. The plaintiff was to be remunerated by part of the purchase-money. Two documents were then made between the plaintiff, " actingfor himself, and, under the letter of attorney, for and on behalf of ■ C & Co., co-pro- prietors with him of the mines, of the one part," and the defendants of the other part, whereby the plaintiff, " acting for himself and his co-partners, called the vendors," agreed to sell the mines be- longing to the vendors to the defendants, and they agreed to buy them. One part was sealed with the defendants' seal ; the other was signed by the plaintiff "for self and partners :"— Held, that C & Co. were parties, and ought to be joined as plaintiffs in an action on this contract. Jung v. The Phosphate of lAme Company, 37 Law J. Rep. (n.s.) C. p. 73 ; Law Rep. 3 C. P. 139. 2. — Spurr, an attorney, practised under the style or firm of Spurr & Chambers, and did work as an attorney for one Cass. Chambers, although an attorney himself, was in reality not a'partner in the firm, but a mere salaried clerk with an in- terest in the net profits of the business. Spurr was indebted to Cass upon a bill of exchange for a smaller amount than the bill of costs upon which Cass was indebted to him. Cross-actions were brought, and in one action Cass pleaded never in- debted, and set off the amount due upon the bill of exchange, while in the other Spurr likewise pleaded that he did not accept the bill of exchange, and set off the amount due upon the bill of costs. The jury found that Chambers had authorised Spurr to contract on behalf of himself and Chambers with Cass, and that Spurr had so contracted r — .Held, that it was competent to Spurr to sue alone, and to maintain the action subject to any set-off which Cass might have against Spurr and Chambers jointly. Spurr v. Casa; Cassy. Spurr, 39 Law J. Rep. (n.s.) Q. B. 249 ; Law Rep. 5 a B. 656. Misjoinder of plaintiff's wife suing in representative capacity. [See Exe- cutor, 20.] (B) Parties to Suits. (a) Suit by Foreign Government. 3. — The United States of America sued as sole plaintiffs. A cross-bill was filed against the States and the President of the States, to get dis- covery upon oath from the President: — Held, that the Court would not stay proceedings in the original suit till an answer had been put in by the President. QuEere — Whether a foreign government can sue in the. Courts of this country as an individual, without putting forward some agent from whom discovery may be obtained. Semble — In such case a demurrer would lie, and is the proper course. The United States of America v. Pi-ioleau; Prioleau v. The United States of America, 36 Law J. Rep. (n.s.) Chanc. 36 ; Law Rep. 2 Eq. 6S9. 4. — The TJnited States of America having com- menced a suit in this country. Wood, V.C. allowed a demurrer, on the ground that they had not by their bill put forward or named a proper person to be made party as defendant to a cross-bill f r the purpose of discovery. On appeal, it was held, by the Full Court of Appeal, that the owner of property is the only proper plaintiff in a suit for its recovery, whether suclt owner be an individual, a corporation, a monarch, or a sovereign state ; and that it is noground of demurrer to a bill filed by a foreign republic in its own name simply, that discovery cannot be compelled from it on a cross- bill. Semble — A defendant wishing to obtain dis- covery, should, after filing a cross-bill, apply that the foreign state may name some person from whom the discovery may be obtained, and that this Court would stay proceedings in the original suit to enforce such discovery. The United States of America v. Wagner, 36 Law J. Rep. (n.s.) Chanc. 624 ; Law Rep. 3 Eq. 724 ; ib. 2 Chanc. 682. The Colombian Government v. Rothschild, 1 Sim. 94; 5 Law J. Rep. (n.s.) Chanc. 43, ex- plained and distinguished. Ibid. 3 F 2 404 PAETIES TO ACTIONS AND SUITS (B)— PARTITION (A). (5) Bill by feme covert administratrix. 5. — A married woman filed a bill as adminis- tratrix by her next friend, making her husband Ji co-defendant : — Held, that although a demurrer to the bill by the other defendants would have been successful, the cause having come to a hear- ing, the Court would not then allow the objectioB, but would order the husband to be made a co- plaintiff, and payment to be made to the hrisband and wife. Decree of Stuart, V.C., 35 Law J. Rep. (n.s.) Chanc. 369, varied. BurdicJc v. Garriclc, 39 Law J. Rep. (n.s.) Chanc. 661 ; Law Eep. 5 Chanc. 233. (c) In suits for specific performance, (1) Against railway company. 0. — A railway company working the line of another company, under parliamentary powers, is a proper and necessary party to a bill for specific performance, filed by an unpaid vendor against that other company, and must bear its own costs of the suit. Goodford v. The StoneJwuse and Nailsworth Eailway Company, 38 Law J. Rep. (n.s.) Chanc. 307. 7. — A railway company agreed to purchase land, and they had constructed their line of rail- way over it, but had not paid the whole of the purchase-money. The line was worked by another company under a traffic agreement, and the net profits were divided between the two companies. The vendor filed a bill against both companies for specific performance, for a declaration of lien, and for an injunction against both companies' con- tinuing in possession of the land or interfering with it, and for a receiver : — Held, following The Bishop of Winchester v. The Mid Hants Bailway Company, 37 Law J. Rep. (n.s.) Chanc. 64 — Rail- way Company, 25 — that the second company were properly made defendants. Marling v. The Stone- houseand Nailsworth Bailway Company, 38 Law J. Rep. (n.s.) Chanc. 306. 8. — In a suit by an unpaid vendor against a railway company, debenture-holders of the com- pany who, in another suit have obtained a receiver, are properly made co-defendants. Drax v. Somer- set and Dorset Railway Company, M. E. 38 Law J. Rep. (n.s.) Chanc. 232. [And see Railway Company, 27 ; Specific PlSEFOEMANOE, 6.] (2) By sub-purchaser. 9. — A sub-purchaser filed his bill for specific performance against not only his vendor but also against the original vendors. The original vendors had previoiisly joined the sub purchaser as a party to a suit against their own purchaser relating to the original contract for sale; — Held, on demur- rer that the original vendor was a proper party. Fenviick v. Bulman, Law Rep. 9 Eq. 165. [And see Vol-dntaoy Deed, 6.] {d) Trustee and cestui que trust. 10. — Where a suit is instituted to compel trustees to make good certain breaches of trust, and A, one of such trustees, happened also to be a trustee with B of part of the trust fund for cestuis que trustent not before the Court ; — Held, that A and B did not represent their cestuis que trustent, A being an accounting party, and that the cestuis que trustent must be mads parties. Payne V. Parker, Law Rep. 1 Chanc. App. 327. [And see Attoenet, 12.] (e) Assignee in bankruptcy. H. — In a suit against a sole executor, trustee, and devisee an order for administration of both real and personal estate had been made. Subse- quently the executor became bankrupt. On motion for a receiver : — Held, reversing the de- cision of the Master of the Rolls, that it was not essential that the assignee in bankruptcy should be before the Court. Steele v. Cobham, 1 Law Rep. Chanc. App. 325. (/) In injunction suits. [See Covenant, 10 ; Injunction, 27, 30, 34.] PARTITION. (A) Trial or Legal Right. (B) Suit by Rbversionee. (C) Sale under Partition Act, 1868, 31 & 32 Vict. c. 40. (a) When ordered. (b) Absence of parties interested. (c) Sale of part. (d) Onus in opposing. (e) Service of decree. (D) Costs. [Section 30 of 13 & 14 Vict. e. 6. and ss. 8, 10, 11, of 20 & 21 Vict. c. 27, extended to partition suits where a sale is directed. 31 & 32 Vict, c 40, s. 7.] (A) Trial op Legal Right. 1, — Plaintiff in a partition suit sought to recover from the defendant possession of an undivided share of real estate, which the plaintiff claimed under an adverse legal title, the question being, whether the estate had passed by a specific devise or by the residuary devise in a will : — Held, that the Court had no jurisdiction to try a question of adverse legal title in a partition suit, and the bill was ordered to be retained, with liberty to the plaintiff to bring such action as he might be ad- vised. Slade V. Barlow, 38 Law J. Eep. (n.s.) Chanc. 369 ; Law Rep. 7 Eq. 296. The time within which such an action must he brought under the Statute of Limitations had expired, but the Court refused to direct the defen- dant not to set up the statute as a defence to the action. Ibid. 2.— A bill in equity for a partition ought not to be made the means of trying a title, which should properly be tried at law. But, although a plaintiff on such a bill must prove his title to that part of the property which he seeks to have divided, there is no rule that a bill for a partition cannot be maintained, if the defendant denies the title of the plaintiff, and that title is purely a legal PARTITION (B), (D). 40S one. If, in such a case, the partition of the property is the primary object of the bill, and the establishment of the plaintiff's title is incidental only to that relief, the Court will make a decree for a partition, and with costs where the right to a decree is resisted. Giffard v, Williams, 38 Law J. Rep. (n.s.) Chanc. 597. 3. — ^Where in a partition suit the question is one of disputed legal title, and the plaintiff has not established his claim by clear and satisfactory evidence, the Court will not decide on tlie plaintiff's claim, but will retain the bill for a year with liberty to the plaintiff to bring such action as he may be advised. Giffard v. Williams, 39 Law J, Rep. (n.s.) Chanc. 735 ; Law Rep. 5 Chanc. 546. (B) Suit by Reversioneb. 4. — A joint tenant or tenant in common, in reversion or remainder, cannot maintain a suit for partition. If a plaintiff is not entitled to the relief prayed at the time of filing his bill, the defect is not cured by his acquiring a title after bill filed and amending his bill. Where, therefore, the wife of a bankrupt was entitled in fee to an undivided share of real estate, and she and her husband mortgaged it, and then with the mortgagee filed a bill for partition : — Held, that the suit could not be maintained, although the moi-tgagee, after bill filed, purchased the estate of the assignee in bankruptcy, and the biU was amended by stating the facts. Evans v. Bagshaw, 39 Law J. Rep. (n.s.) Chanc. 145 ; Law Rep. 5 Chanc. 340. (C) SiiSi UNDEB Paetition Act, 1868, 31 & 32 Vict. c. 40. (a) When ordered. 6.— Decree for sale made under the Partition Act, 1868, and costs ordered to be paid out of the estate. Osborn v. Osborn, 37 Law J. Rep. (n.s.) Chanc. 656 ; Law Rep. 6 Eq. 338. 6. — Under a will an estate was divisible among twelve persons as tenants in common, some of who5i were infants ; there was a difficulty in making a partition as well on this account as be- cause a portion of the estate consisted of houses, and there was coal under other parts of it, the testator being only entitled to two-thirds of the coal-beds. Under these circumstances, and upon evidence to show that a sale of the entirety of the estate would be greatly for the advantage of all parties, the Court ordered a sale. Bickards v. Bickards, 36 Law J. Rep. (n.s.) Chanc. 176. (i) Absence of parties interested. 7. — Upon the hearing of a suit for the sale or partition of leasehold property, where only the persons entitled to eight tenth shares of the pro- perty were before the Court, and there was no evidence to prove who were the persons entitled to the remaining two tenth shares, or that such per- sons were out of the jurisdiction : — the Court refused to make an immediate decree for a sale, but directed inquiries as to the persons interested in those shares. Silver v. Udall, 39 Law J. Rep. (n.s.) Chanc. 118 ; Law Rep. 9 Eq. 227. 8. — The Court refused to make a decree for sale under the Partition Act, 1868, when a defendant entitled to a very small interest and out of the jurisdiction had not > been served with the bill. Hurry v. Hurry, 39 Law J. Rep. (n.s.) Chano. 824; Law Rep. 10 Eq. 346. [And see Will, Consteuction (M) ((?).] (c) Sale of part. 9.— In a partition suit the Court may, under the 31 & 32 Vict. e. 40, direct a sale of part of the property and a partition of the remainder, if. ehtck V. Chadebet, 38 Law J. Rep. (n.s.) Chanc. 488 ; Law Rep. 8 Eq. 127. {d) Onibs in opposing. 10.— The Act 31 & 32 Vict. o. 40 is retrospec- tive, and applies to a suit commenced before the passing of the Act. The onus is upon those opposing the sale to shew that it ought not to be directed. Lys v. Lys, Law Rep. 7 Eq. 126. (e) Service of decree. 11. — The Court will not allow a sale, which has been decreed under the Partition Act, 31 & 32 Vict. 0. 40, to be proceeded with until all persons interested in the suit have been served with notice of the decree, but will allow such service to be effected by advertisement upon persons out of the jurisdiction, and who cannot be found, with liberty for the plaintiffs to apply as to proceeding with the sale in case the absent parties do not come in after advertisement. Peters v. Bacon, 38 Law J. Rep. (n.s.) Chanc. 571 ; Law Rep. 8 Eq. 125. (D) Costs, 12. (1) — Where, in a partition suit, a decree for sale was made under 31 & 32 Vict. c. 40, each party was ordered to bear his own costs up to the hearing. Per M.R., Landell v. Baker, Law Rep. 6 Eq. 268. 12. (2) — In a case similar to the last case, No. 12 (1), biit where the defendants were infants, V.C.M. ordered the costs of all parties to be a lien on the proceeds of the sale. Osborn v. Osborn, 37 Law J. Eep. (n.s.) Chanc. 656 ; Law Rep. 6 Eq. 338. 13. — Where, in a suit for partition or a sale under 31 & 32 Vict. c. 40, the plaintiff and the defendants are entitled to the property in equal shares, the Court will order the costs of all parties to come out of the estate, following the last case. Miller v. Marriott, Law Rep. 7 Eq. 1. 14. — T and L being entitled to fourteen free- hold houses as tenants in common, agreed for a partition, T to take seven of the houses and L the other seven, in severalty. Both died before a. partition deed was executed. T, the survivor, specifically devised his seven houses, but allowed the legal estate in the other seven to go to his heir-at-law : — Held, that the costs of carrying out the agreement .for partition on the side of T (in- cluding the costs incurred in getting in the out- 406 PARTY WALL— PARTNERSHIP (A). standing legal estate) must be borne by the devisees of T., and not by his personal estate. In re Tann, Tann v. Tann, Gravatt v. Tann, Law Eep. 7 Eq. 434. PARTY WALL. [See Metropolitan Bulldino Acts.] PARTNERSHIP. (A) Partnership. (a) How constituted. (b) Construction of partnership articles. (c) Dissolution. (1) Ground for. ■ (i) Failure to account. (ii) Incapacity. (2) Accounts. (i) Division of assets. (ii) Profits, what are: (iii) Profits left in business : in- terest. (iv) Mistake. (3) Return of premium. (d) Paymfnts to loan society. (e) Property in land. If) Mortgage of shares, {g) Change of firm. (A) Practice in partnership suits. (1) Sale of minis. (2) Interest: costs. (B) Rights and Liabilities of Partners. (A) Partnership. (a) How constituted. 1. — The defendant's son having been elected a member at Lloyd's, on a representation made to the committee with the defendant's sanction, that the defendant would place 5,000/. at the disposal •of F (an underwriter), and would never let his son stand in want of further aid, if needed, the son entered into an arrangement with F, whereby •the latter was to manage the underwriting busi- ness in his, the son's, name, and was to be paid a salary for doing so. The son, in consideration of the defendant so guaranteeing him to the extent of 5,000/., agreed to pay the defendant an annuity of 600?., which, on a given state of the profits, was to be increased to a yearly sum e(^ual to one- •fourth of the profits ; but it was stipulated that the defendant should not be considered as a part- ner in the said business. The son afterwards married, and by the marriage settlement all the moneys and profits of the business were assigned to the defendant and one D upon certain trusts, the first being to pay the said annuity to the de- fendant. The son kept no banking account, but paid such cheques as F gave him to the defendant's bankers, on whom be was allowed to draw, until the defendant put a stop to it: — Held, by the majority of the Court of Exchequer Chamber, reversing the judgment of the Court of Common Pleas, that, assuming the above arrangements to be real and not colourable, the defendant was not liable as a partner with his son in the underwriting business. Sullen and another v. Sharp, 35 Law J. Rep. (N.S.) C. P. 105; H. & E. 117; Law Eep. 1 C. P. 86. Agreement to enter into partnership : speci- fic performance of. [See Specific Per- formance, 8.] Employment of salaried partner. [See Bankettptcy, 99.] (6) Construction of partnership articles. 2. — At the expiration of articles of partnership the partnership was carried on without new arti- cles. A particular mode of sale of the partner- ship assets had been provided by the articles at the expiration of the term,, or upon notice of dis- solution by any of the partners : — Held, that such mode of sale was not applicable to the determina- tion of the continuing partnership at will. Woods V. Lamb, 35 Law J". Eep. (n.s.) Chanc. 309. 3. — By partnership articles, one of three part- ners might "determine the co-partnership by giving six calendar months' notice," and in that case, im- mediately after the expiration of the six calendar months, the assets were to be valued, and after the valuation being made and the result communi-. cated, the partnership " shall in regard to all the said partners cease and determine " : — Held, that the partnership was dissolved at the expiration of the six months, and not from the completion of the valuation, though it continued six months, for the purpose of winding up. Griffiths^. Bracewell, 35 Beav. 43. 4. — Construction of a clause in a partnership deed giving a right of pre-emption of the shares of a retiring partner to the continuing partners. The enforcement of a contract for the purchase of shares under such a clause is not, like the ordi- nary case of vendor and purchaser, a discretionary jurisdiction in the Court ; the Court is bound to protect this right of pre-emption. Homfray v. Fothergill, Law Rep. 1 Eq. 567. Agreement for valuation on dissolution, [See Vendor and Purchaser, 10.] (c) Dissolution. (1) Ground for. (i) Failure to account. 5. — By articles of partnership for a term be- tween A and B, all bills were to be signed by A only. B drew a bill on a customer for the amount of his bill ; — Held, that this was not a substantial violation of the articles. The failure of one partner to enter in his ac- counts partnership moneys received by him is of itself and independent of any provisions in the ar- ticles of partnership, a sufBcient ground for the other partner dissolving. By articles of partnership for a term, each part- ner was to keep proper books of account and to enter all his receipts, and in default the other PARTNERSHIP (A). 407 might dissolve the partnership. One partner had made small omissions, in seventeen instances, which, in the aggregate, amounted to 91. 10s. : — Held, that this justified the other in dissolving the partnership. Cleesman v. PiHce : Price v. Cleesman, 35 Beav. 142. 6. — On a dissolution of partnership between A and B, after a full examination of the books, a deed was executed whereby A conveyed to B all his interest in the partnership concern, and both parties mutually released the other in the most ample terms. Afterwards B discovered that A had withdrawn 7551. from the concern before the books had been examined, of which there was then no entry, but before the deed was executed there was. B filed his bill to have it declared that the release did not extend to this sum, or for a wind- ing-up of the partnership. Before the hearing, B sold the paitner.ship property : — Held, that had B not sold the partnership property, the Court would have set aside the transaction, but that now B was precluded from relief. Bill dismissed, with costs. SMlbeck v. Hilton, Law Eep. 2 Eq. 687. (ii) Incapacity. 7. — A B having been rendered incapable of performing his partnership duties, his partner filed a bill against him for a dissolution." Afterwards and before the hearing A B's health improved : — Held, that there was not sufficient ground for dis- solving the partnership, and all proceedings were stayed, with liberty to apply. Whitwell v. Arthur, 35 Beav. 140. (2) Accounts. (i) Division of assets. 8. — ^Partnership articles provided for allowance of interest on capital before division of profits, and for taking the accounts with half-yearly rests. By a decree for a dissolution of the partnership, the partnership property, stock and effects were directed to be sold and the business to be carried on until the sale, and the balances to be paid into Court and invested in SI. per cent, annuities. About fourteen months elapsed between the date of the decree and the complete disposition of the partnership property : — Held, that the partnership articles were inapplicable to the carrying on of the business after the date of the decree, but that each partner was entitled to so much of the fund in Court as represented his share of the capital and accumulations of interest, and that the residue, if any, ought to be divided equally between them. Watney v. Wells, 36 Law J. Eep. (n.s.) Chanc. 861 ; Law E«p. 2 Chanc. 250. ■ 9. — ^Partnership articles provided that the busi- ness should be carried on "for the common benefit of the partners, and risk of profit and lo^s in equal shares and proportions " ; that the plaintiff should devote the whole of his time and attention to the business, and the defendant only so much as he should think fit ; that fresh capital might be brought in which should carry preferential interest, and migh be withdrawn on notice ; and that the net profits beyond equal specified sums should be left in the business, and be carried to the respective credit of the partners as addi- tional capital, to bear interest before division of net profits. The defendant had brought in cash as fresh capital, and profits had been carried to the capital account in the books. On the dissolution of the partnership, the realised assets, after payment of debts, proved insufficient to make good to the defendant the excess of his capital ; and the defendant claimed to take the whole of the realised assets, and, in addition, to hold the plain- tiff liable personally to him for any deficiency : — Held, that the defendant was entitled to payment in priority of the cash brought in, but that the surplus should be divided rateably according to the shares of capital after such payment. Wood V. Sooles, 35 Law J. Rep. (n.s.) Chanc. 547 ; Law Rep. 1 Chanc. 369. 10. — ^A and B went into partnership without written articles ; the parol agreement between them being to share profits and losses equally. A died, and an account of his estates being taken in an administration suit, it was found that he had advanced more capital than B to the extent of I,900Z. The net assets of the partnership were 1,400?. : — Held, that the deficiency of 500?. was in the position of a debt to which both estates were liable to contribute equally. Partners, in the absence of stipulation to the contrary, ought to contribute equally to loss of capital, whether original capital or subsequently advanced, and to every loss. Nowdl v. NoweU, Law Eep. 7 Eq. 538. (ii ) Profits, what are. 11. (1) — The case of Coventry v. Barclay, 3 De Gex, J. & S. 320, relied on as shewing the effect to be given in law to a uniform course of practice in partnership dealing. Where the uniform practice of a firm, in making out their balance-sheets, was to treat the loss occasioned by any asset turning out bad, as attributable to the year in which it was discovered to be bad, it was held that the executors of a' deceased partner were entitled to receive the value of his share as appearing by the balance-sheet, without any deduction for losses subsequently ascertained. Ex parte Barber, in re Barber, Law Rep. 5 Chanc. App. 687. 11. (2)— By an agreement between G the owner of an established business, and R, it was agreed that R should receive in each year 7J per cent, of the profits to be made up to 500?. in any year in which the share of profits should be less than that sum. In a suit by E to take accounts : — Held, 1 St, that G- was not entitled to charge the profit and loss account with interest on capital or old business debts, or with the payment of E's salary. 2nd, that G was entitled to charge that account with depreciation of premises, plant, &c. ; and lastly, that G having sold the business much be- yond the value estimated at the date of the agree- ment, E was not entitled to a percentage on the dif- ference. Eishton V. Grissell, Law Eep. 5 Eq. 326; Law Eep. 10 Eq. 393. 12. — By the terms of a partnership deed the partnership was to last until the 31st December, 1864, though one of the partners should die in the interval ; before any division of profits each part- 408 PARTNERSHIP (A). ner was to be credited with 5 per cent, on his capi- tal in the business. The stock-taking and accounts shewing the profits was made up each year on the 1st July. One partner died on the 26th March, 1864, having by his will bequeathed all his pro- perty to trustees for his wife and children, the former to receive " the net annual income actually produced by my trust property, howsoever consti- tuted or invested " : — Held, that the whole profits from the last stock-taking, on July 1, 1863, to December 31, 1864, was income, and went to the widow, but that the interest on capital should be apportioned, and that the widow was entitled only from the 26th of March, 1864. Ihbotson v. Elam, 35 Beav. 594 ; 1 Law Rep. Eq. 188. Net profits of joint-stock company. [See COMPANT (C) 69.] Accumtilations of profits : tenant for life and remainderman. [See Tenant foe Life, 16.] Practice affirm to attribute losses to parti- cular years. [See Company (G) 47-] (iii) Profits left in business : interest. 13. — Where profits which might be drawn out are left by a partner in the business, he will not be allowed interest for them except by express stipu- lation. Dinham v. Bradford, Law Rep. 5 Chanc. App. S19. (iv) Mistake. 14. — Upon the dissolution of a partnership, and the settlement of all accounts between the part- ners, A B, the continuing partner, took some of the debts as good debts. One turned out to be bad, the securities for it having been fraudulently ab- stracted by a clerk : — Held, that A B could not sustain a bill to rectify or set aside the settlement of a-,counts. The account of a customer of a firm consisted of debts and credits arising from the purchase and sale of goods. The partnership was dissolved, the customer being then greatly indebted to it, but the account was continued in the same mode by the succeeding firm : — Held, that the doctrine of ap- propriation of payments applied to the debtor's account. Laing v Campbell, 36 Beav. 3. (3) Beturn of premium. 15. — The principles upon which the Court acts, in regard to ordering a return of a proportionate part of a premium paid for a partnership, where the acts of either party render the continuance of the partnership for the term impossible : con- sidered. A return of part ordered upon a disso- lution between two solicitors, although the dissolu- tion was rendered necessary from the incompetence of the partner who paid the premium, such incom- petence having been known beforehand to the other party. Aiwood v. Maude, Law Eep. 3 Chanc. 369. 16. — P, a medical practitioner, took M, another medical practitioner, into partnership, in considera- tion of a premium, P agreeing to give his personal attention to the business for three years, and to introduce M to his patients. At the date of the contract, P was, as he well knew, suffering from a mortal disease, which fact was concealed from M. He died a few months afterwards, and a very limited introduction took place. Upon bill by M, praying the usual partnership accounts, and seek- ing relief in respect of bills given for the unpaid premium, the Court restrained the defendant from suing on the bills, and directed the usual partner- ship accounts, with a declaration that the plaintiff was entitled to be remitted a reasonable portion of the premium. Maekenna v. Parkes, 36 Law J. Eep. (n.s.) Chanc. 366. {d) Payments to loan aodety. 17. — A club was formed to raise money by sub- scription, and lend it from time to time to the members who offered the highest premium ; such club to exist till all shares, &c., were paid. The payments were monthly, and were, first, on ac- count of shares and spending-money ; and, secondly (if the member had a loan), on account of premium and interest. When a member obtained a loan, he and two sureties gave a promissory note as security : — Held, in an action against a surety on a promissory note, that the payments were to be considered as a partnership matter, distinct from the note, and not as payments on account of the note. Wright and others v. Hickling and others, 36 Law J. Eep. (n.s.) C. P. 40 ; Law Rep. 2 C. P. 199. («) Property in land. 18. — Tenants in common of undivided shares in land, partly agricultural which was let, and partly stone quarries which were worked by them, they having an office and wharf in London for the stone — some of the proceeds was invested in the purchase of lands adjoining the other lands, which were partly used in connection with the quarry, and partly agricultural — on the death of one of the tenants in common : — Held, her share in the purchased land was realty not personalty, the trade being ancillary to the land, not the land to the trade. Steward v. Blakeway, Law Rep. 6 Eq. 479. Affirmed on appeal, Law Rep. 4 Chanc. 603. (/) Mortgage of shares. 19. — The mortgagee of shares in a partnership is entitled to the usual foreclosure decree in respect of them. The mortgaged shares will only be affected by such liabilities as are thrown upon them by reason of some agreement in force at the time of the execution of the mortgage. Redmayne V. Porster, 36 Law J. Rop. (n s.) Chanc. 847 ; 35 Beav. 529; Law Eep. 2 Eq. 467. Where a partnership deed gave to the several partners a right of pre-emption of any shares which might be sold, the Court, on bill filed by the mortgngee of certain shares, made the usual foreclosure decree against one of the partners, but in the event of his being absolutely foreclosed, gave leave to any of the other partners to redeem the plaintiff before a given day. Ibid. Each partner being at liberty to buy the mort- gaged shares, is properly made a party to such a suit, on the ground that he is entitled to see that PARTNERSJIIP (B)— PASTURAGE, RIGHTS OP. 409 tKe accounts affecting the mortgaged shares are properly taken. Ibid. (g) Change of firm. 20. — Circumstances under which the debts and liabilities of a former firm were held to have been taken to and adopted by the new firm, consisting of the old firm and two new partners, neither of whom brought capital into the partnership. The evidence of intention was conflicting, but the course of dealing with the assets and the creditors favoured the conclusion that the debts had becomp the joint debts of the new firm. Rolfe v. Flower, Law Rep. 1 P. C. 27. (h) Practice in partnership suits. (1) Sale of mines. 21. — The partners in a mine being hopelessly embarrassed, and their position becoming more critical every day, the Court interfered against a dissentient partner on rnotion before the hearing, and ordered an immediate sale of the mine and partnership property. Heath v. Fisher, 38 Law J. Eep. (n.s.) Chanc. 14. (2) Interest: costs. 22. — Under the common decree in a partnership suit interest is payable, on the balance found due from one partner to another, from the date of the certificate. The casts of a suit to take the partnership accounts are ordinarily paid out of the partner- ship assets. Bonville v. Bonville, 35 Beav. 129. [And see Company (E) 76 ; Debtor and Creditoe, 8.] (B) Rights and Liabilities of Paetnees. 23. — Where A and B are in partnership, and A accepts a bill in the partnership name, for a debt partly due from A prior to the partner- ship, and partly due from the partnership, and the drawer sues B for the whole amount ; Semble — There is no case which decides that the plaintiff cannot recover to the extent of the part- nership debt. The Court held that it had power to amend the declaration, by adding a count for the consideration, and ordered a verdict to be entered for plaintiff for the amount of the partner- ship debt, on terms as to costs. Ettston v. Deacon,^ Law Rep. 2 C. P. 20. 24. — A .partner desiring and being entitled to withdraw capital from his firm, one of three sets of bills of exchange payable to the order of the firm was indorsed over and delivered to him ; but , before the two other sets were so indorsed or delivered he died, and the first set was lost. The firm was at the time in an insolvent state, and soon after, the surviving partners executed a creditors' deed : — Held, that the Court would not help the executors of the deceased partners to the prejudice of the other creditors, and that as the money had not reStehed his hands the money in Court belonged to the joint creditors. Be Kempt- ner. Law Rep. 8 Eq. 286. 25. — Instance where a firm, A and B, was not allowed a lien for advances on proceeds of con- signments abroad remitted to them contrary to terms of agreement, between the consignors and DiOEST, 1865-70. their agents B & C, oh the ground of notice to a common partner. Steele v. Stuart, Law Rep. 2 Eq. 84. 26.— The firm of W & K being indebted to G, to Whom W was also privately indebted individu- ally, G gave a receipt in the name of the firm for 1,000^., paid by W out of the partnership moneys, and subsequently, at the request of W, credited his private account with the amount instead of the account of the firm. W had no authority to appropriate the partnership moneys in this man- ner, but G believed that he had. On the disso- lution of the firm, K paid to G, partly in cash and partly in bills, the amount which appeared by G's books to be due from the firm. Before the last bill became duo, which was for an amount over 1,000^., K discovered how W had appro- priated the 1,000?.; but he paid the bill under protest notwithstanding : — Held, that K was en- titled to recover 1,000/. from G, as money had and received to his use, seeing that he was not bound by the act of W, done without his authority ; and that it was for G to shew that K had so con- ducted himself as to induce the belief that he had given W authority. Held also, that the bill was given under cir- cumstances amounting to a mistake of facts, which facts would have constituted a defence if not at law in equity to any supposed claim by G, and that the subsequent payment of the hill (which might be taken to be in the hands of third parties) could not be regarded as a voluntary payment. Kendal v. Wood and another, 39 Law J. Rep. (n.s.) Ex. 167. Scope of partnership bvsiness. [See Prac- tice IN EeuiTY, 4.] Power to bind a partner by post-dated cheque. [See Bill of Exchanoe, 2.] Liability of firm of attorneys in respect of business entrusted to one of them. [See Attorney, 19.] Sleeping partner, reputed ownership. [See Bankruptcy, 61.] Pleading at Law : nonjoinder of partner as plaintiff. [See Parties, 2.] Eeceiving siohn goods. [See that title, 4.] PARTRIDGES. To steal young partridges hatched under a hen before they have ceased to sleep under her wings is larceny. [See Larceny, 6.] PASSENGER. Accidents to, or loss of luggage, ^c, hy. [See Carriee, 1, 6, 7, 8, 11 ; Negli- gence, 14, 29, 33, 35 ; Pleading at Law, 5 ; Railway Company, 14, 29, 33, 34, 35.]. PASTURAGE, RIGHTS OF. An exchange of pasturage rights over com- mon lands for a part of the lands in fee: — Held, a revocation of a previous devise of the rights by will made before 1838. [See Will, Formalities, 53.] 3G 410 PATENT (A). PATENT. (A) When valid on void. (a) Suhject-onatter : novelty. \b) Application of old invention to new purpose. (o) Application of hnovm article or process to analo(iov,s purposes. (d) Expiration of previous foreign patent. (B) Specification. (ffl) Provisional specification, {h) Construction of specification, (C) Disclaimer. (D) Sealing Patent. (a) Practice. (J) Perquisites of Clerk of Patents. (E) Co-Patentees. (F) Assignment and Registration thereof. (Gr) Licence to use: Eotalties. (H) Infringement. (a) What is generally, (V) Bights of Crown. ((?) lAdbility for. {d) Measure of damages, (e) Slander of title. (I) Prolongation of Term. (K) Jurisdiction and Practice in Equitt. (a) Damages: injunction. « (A) Issues (c)' Particulars of objection. {d) New trial. (e) Costs. (J) Pleading. (g) Effect of delay. {h) Extension of time for applying patent. \i) Particulars of prior user. (Jc) Objection to grant. (A) When valid or void. (a) Subject-matter: novelty. 1. — It is not every useful discovery that can be made the subject of a patent. It must be shewn that the discovery can be brought within a fair extension of the words " a new manufacture." Ealston v. Smith, 35 Law J. Rep. (n.s.) C. P. 49. 2. — Letters patent were granted for an alleged invention of " certain improvements in the eon- struotion of ships and other vessels navigating on water." The first claim in the specification was ' ' for the combination of an iron frame, with an external covering of timber planking for the sides, bilges and bottoms," and this was so described that, according to the construction put on it by the Court, it comprehended whatever might, ac- cording to the ordinary use of language, be called "an iron frame" for a, ship, and was in fact, a claim for planking with timber any iron frame of a ship : — Held, that inasmuch as before the date of these letters patent composite ships, partly of wood and partly of iron, had been constructed, and iron frames of more or less strength had been coated with iron, and wooden frames with wooden planking, the application of wooden planking to th« iron frame of a vessel could not, without any peculiarity in the nature of that {ilanking, be the subject of a patent, on the principles laid down in Harwpod v. The Great Northern BaUway Company, No. 6 infra. Henry Jordan and George Jordan v. Moore, 35 Law J. Rep. (n.s.) C. P. 268 ; Law Rep. 1 C. P. 624. 3. — Ladies' mourning bonnet and hat falls having previously been made with the ornamental folds on the outside only, so that when turned up a " wrong side " was exposed to view, the plaintiff introduced and patented an improved mode of making them with the folds on the inner side also, so as to form both sides alike, but there was no novelty in the process of manufacture : — Held, that this was not a subject for a patent. White v. Toms, 37 Law J. Rep. (n.s.) Chanc. 204. [And see No. 7 infra.] (4) Application of old invention to new "purpose. 4. — A patent may be valid for the application of an old invention to a new purpose if the new application lies so much out of the track of the former use as not naturally to suggest itself to a person turning his mind to the subject. Penn v. Bibby ; Pennv. Jack, 36 Law J. Rep. (n.s.) Chanc. 277 ; Law Rep. 3 Eq. 308 : 36 Law J. Rep. (n.s.) Chanc. 455 ; Law Rep. 2 Chanc. 127. 5. — A specification of a patent for the use of animal fibre, as coarse wool in the manufacture of artificial hair, and for upholstery and other like purposes, held too extensive. The use of a new material to produce a known article cannot be the_ subject of a patent, unless invention is displayed in the adaptation of it. Eushton v. Crawley, Law Eep. ] Eq. 522. [And see No. 31 infra.] (c) Application of known article or process to 6. — Letters patent were granted to W for an alleged invention of fishes and fish-joints, for con- necting the ends of rails used on railways. The fishes were made of iron, with a groove on the outer surface, for the purpose of preventing the square heads of the bolts passing through them and the rail, from turning round, and also for the purpose of procuring greater strength with an equal weight of metal than could have been obtained from a fish of the same thickness throughout. Before these letters patent had been granted, grooved iron plates with bolts let into the grooves, had been used for the purpose of fastening timbers placed vertically upon one another, or placed horizontally side by side. In one case of a bridge, a channelled plate with bolts had been used for the purpose of fishing a scarf -joint where the ends of two timbers met together:— Held, affirming the judgment of the Exchequer Chamber, 31 Law J. Rep. (n.s.) Q. B. 198 ; 2 Best & S. 222,»that there was no novelty in the patent, and therefore that it was bad ; that the supposed invention had been in use previously to the date of the patent, not only in the case of a bridge but for other purposes, and that a patent could not be upheld for the mere application of a well-known mechanical contrivance PATENT (A), (B). 4U to a purpose which was analogous to the manner or to the purpose in or to which it had been hitherto notoriously used or applied. Harwood and another, executors of Charles Wild, deceased, v. The Great Northern Sailway Company, 35 Law J. Eep. (n.s.) Q. B. 27. {d) Expiration of previous foreign patent, 7. — An inventor took out a patent in France, and subsequently an English patent, the subject- matter of which was wholly included in the French patent. He afterwards allowed the French patent to drop by default in paying the annual dues required by French law to keep it alive ; and ac- cordingly this patent was, by the judgment of a Ereneh Court, given on the 22nd of February, 1866, declared void as from the 6th~of February, 1864. In March, 1865, a bill was filed by an assign of the English patent to restrain the de- fendants from infiinging it ; and in January, 1866, a decree was made establishing the patent and awarding an injunction. On motion in 1867 to commit the defendants for breach of this injunction : —Held, first, that, under the 15 & 16 Vict. c. 83, s. 25, the patent and with it the injunction had now expired. Secondly, that although the French patent was declared void as from a date anterior to the decree, yet the defendant was not estopped by the decree from raising this deffence on the motion. Thirdly, that the judgment of the French Court, given in the presence of the inventor, was binding on his assigns. The 25th section of the 15 & 16 Viet. c. 83 applies where a foreign patent is de facto granted, though it is afterwards cancelled ab initio. And, semble, if the subsequent English patent comprises more objects than the previous foreign patent, the English patent fails through the failure of the foreign patent only so far as the two are identical. Baw v. Eley, 36 Law J. Eep. (n.s.) Chanc. 482 ; Law Eep. 3 Eq. 496. 8.— The 15 & 16 Vict. c. 83, by section 25, provides that letters patent obtained in the United Kingdom fo? patented foreign inventions shall not continue in force after the expiration of the foreign patent : — Held, that this section applies to the case where a patent has been obtained in a foreign country before the patent was obtained in this country, combined with this fiirther circumstance, that the invention in respect of which the patent here was granted was first invented either in a foreign country, or by the subject of a foreign state. In re Foole's Patent, 36 Law J. Eep. (n.s.) P. C. 76 ; Law Eep. 1 P. C. 614. (B) Specification. (a) Provisional specification. 9. — It is the office of the provisional specifica- tion of a patent to describe the nature of the invention with sufficient precision and accuracy to inform the law officer of the Crown what is to be the subject-matter of the patent; but if he is satisfied, the generality of the provisional specifi- cation cannot be objected to the validity of the patent. The provisional specification of a patent for an improvement in the bearings and bushes for the shafts of screw and submerged propellers described the invention as consisting in employing wood in the construction of such bearings and bushes. The complete specification, after describing the mode in which the wood was to be used, ^claimed the employing of wood in the construction of the bearings and bushes " as therein described " : — Held, that this was no such variation between the provisional and 'complete specification as would invalidate the patent. Penn v. Bibhy, Penn v. Jaci:, 36 Law J. Eep. (n.s.) Chanc. 466 ; Law Eep. 2 Chanc. 127. 10. — The existence of a prior provisional speci- fication is not a ground on which the Attorney General ought to refuse to allow a second pro- visional specification by another inventor to be filed ; and in the event of the later applicant for provisional protection being the first to obtain a grant of letters patent, his patent is a bar to the grant of letters patent for the same invention to the earlier applicant for such provisional protec- tion. In re Bates and Bedgate's Application by Petition for Patent, 38 Law J. Eep. (n.s.) Chanc. 601 ; Law Eep. 4 Ohane. 577. (b) Construction of specification. 11. — The provisional specification of a patent for improvements in apparatus for sewing or stitching stated the improvements to consist, first, in ruoving the work after each stitch by an instru- ment acting on that surface of the fabric which the needle enters, and that this instrument, " or another acting therewith," acts to hold the work, &c. The complete specification described the formation of an instrument (marked g in an annexed drawing) for holding and moving the fabric during the operation of making the stitches, and stated that " it is the arranging an instrument, g, as herein described, which, whilst it is the means of holding the fabric during the insertion and withdrawal of the needle is also the means by which the step-by-step movement is given to the fabric for the succession of stitches, which consti- tutes the peculiarity of my invention " : — Held, that an omission in the complete specification of all notice of the other instrument referred to in the provisional specification did not make the specification void, it not appearing .that such omission was made fraudulently, or that any one had been misled thereby. Held, also, that the patentee did not claim every kind of instrument in which the means of holding are also the means of moving the fabric, but only the holding and moving instrument described in the specification, or other like instruments used in the way so described there. It is no objection to the specification that a dis- claimer strikes out all the claiming clauses at the end of the specification, if the rest of the specifica- tion sufficiently describes the nature of the invention and the mode of making it. Thomas v. Wtlch and others, 35 Law J. Eep. (n.s.) C. P. 200 ; Law Eep. 1 C. P. 192. 12. — A specification, when construed gramma- 3g 2 412 PATENT (B), (D), tically, claimed to ofifoct a particular object by two processes, one of which would not efifect the object; but evidence shewed that no skilled, practical workman would be misled, as such a one would know that the one process would be ineffectual, and would adopt the other : - Held, that the specifi- cation was defective and the patent void. Simpson and others v. Holliday, 35 Law J. Rep. (n.s.) Chanc. 811 : Law Eep. 1 H. L. 315. The specification was as follows : " I mix aniline with dry arsenic acid, and allow the mixture to stand for some time, or I accelerate the operation by heating it to or near to its boiling point " : — Held, that the word " or " could not be read as " and." Ibid. 13. — Wliere a patentee has taken out a fresh patent for improvements on his original invention it is sufficient if, reading his second specification with the first, an artisan would have no substan- tial difiiculty in ascertaining what was claimed. A patent for an entire combination is not a valid • patent for a part when that part would not of it- self be patentable, nor semble when, though new and useful for other purposes, such part has no bearing on the professed object of the patented invention. Therefore, when the subject of a patent was declared to be an invention for producing " a glazed lamp, the frame of which shall throw little or no shadow, and yet at the same time possess the requisite strength and also facilities for light- ing and cleaning": — Held, that the substitution of a sliding door for a hinge, which diminished the danger of breakage, but gave no facilities for lighting and cleaning, and had nothing to do with the strength or the shadow, w^s not protected by the patent. Semble — That there can be no patent right in the mere substitution of a slide for a hinge in the door of a house, of a carriage, or of a lamp, A patent was entitled, for " improvements in the manufacture of railway station and other gas lamps," but the specification claimed only by reference to a former specification, improvements in " that class of lanterns suitable for suspension in railway stations and other public places." Whether the patent was confined to lamps sus- pended, quaere. Parkes v. Stevens, 38 Law J. Eep. (N.s.) Chanc. 627; Law Eep. 3 Eq. 358; Law Eep. 6 Chanc. 36. (C) Disclaimer. 14. — A disclaimer cannot be made use of for the purpose of converting a barren and unprofit- able generality in a specification into a specific practical description, or to convert that which upon the description in the specification is not applicable to any one definite form into a descrip- tion applicable to a specific and definite mode of proceedings. The object of the act authorising disclaimers is, that where a specification contain- ing a sufficient and good description of a useful invention is imperilled by reason of the descrip- tion having something annexed to it whicli. is capable of being severed, leaving the original des- cription good and sufficient, without the necessity of addition, except of such slight additions only aff may be required to render intelligible that which remains, the vicious excess may be lopped off by a disclaimer. Therefore, where the specification of a patent, for improvements in embossing and finishing woven fabrics alleged the invention to consist in the use of rollers having any design grooved, fluted, engraved, milled or otherwise indented upon them, and the disclaimer which was afterwards filed stated that the effect desired could only be pro- duced by the use of a certain species of roller not particularly described in the specification, namely, a roller of hard metal or other suitable material having circular grooves aronnd its surface, and all other rollers were disclaimed, such disclaimer was held to be bad. The description, " a roller of hard metal or other suitable material," was not too uncertain, on account of the use of the words " or other suitable material " ; such words would mean any material equally sufficient for the purpose with hard metal — per the Lord Chancellor. Ralston v. Smith, 36 Law J. Eep. (n.s.) C. P. 49. [And see No. 11 ante.] (D) Sealing Patent, (o) Practice. 15. — An application by A to seal a patent was opposed by B, a person who had a year previously obtained a patent similar to the present, and which had since been extensively used, the answer to this was that the invention had been confidentially communicated to B, and that he had fraudulently obtained his patent. The patent was allowed to be sealed, that being the only means of trying the question of fraud. It is not necessary that the party opposing the sealing on notice should have obtained the leave of the Court to do so. In re Vincent's Patent, Law Eep. 2 Chanc. App. 341. 16. — 1. If an application for the sealing of a patent be opposed by a previous patentee on the ground of colourable imitation, the point will be decided by a reference to the law officer. Ex parte Yates, Law Eep. 5 Chanc. App. 1. 16. — 2. Where the sealing of a patent is op- posed on the ground that the invention was in- cluded in an existing patent, the Court will order the question to be referred to the law officer, the opponent (except in eases of fraud) paying the costs of the hearing. Ex parte Manceaux, L. C, Law Eep. 5 Chanc. App. 518. 17. — A person will not be allowed to oppose the sealing of a patent before the Lord Chancellor, if he has not opposed it before the law officer of the Crown, under .section 12. Two patents for the same purpose by different persons, neither of whom had opposed the other before the Attorney General, -wpre allowed to be sealed. In re Mitchell's Pa- tent, and In re Brotherton's Patent, Law Eep. 2 Chanc. App. 343. PATENT (E), (H). 413 (6) Perquisites of Clerk of Patents. 18. — Where it is no part of the duty of a public officer (in this ease the Clerk of JPatents) to kesp government stamps for the convenience of the public resorting to the office, but the officer, for the convenience of the public, purchases stamps wholesale under discount, and oiarges the public full price, he is entitled to the profits made on such stamps purchased with his own money, but not on such as were purchased with government money. The Attorney General v. Edmunds, 37 Law J. Eep. (n.s.) 706 ; Law Kep. 6 Eq. 381. (E) Co-Patentees. 19. — The inability of one of several joint pa- tentees profitably to use the invention without the consent of his co-patentees, as owners of a prior patent, does not entitle him to share with his co- patentees in the profits made by them from the use of the patent, there being no principle of law, in the absence of contract, to prevent any person not prohibited by statute from using any invention whatever, and no implied contract, where several persons jointly obtain letters patent, that no one of them shall use the invention without the consent of the others, or that he shall use it for their joint benefit. The decision of the Master of the EoUs, 34 Law J. Eep. (n.s.) Chanc. 298, reversed. Ma- thers V. Green, 36 Law J. Eep. (n.s.) Chanc. 1 ; Law Eep. 1 Chanc. 29. Plaintiff cannot obtain relief inconsistent with the case made by the bill. Ibid. (F) Assignment and Eeqistkation theeeof. 20. — The Court will, on the motion of the per- son aggrieved, correct an entry in the Eegister of Proprietors of Patents, which purpose to effect the rights of persons not parties to the deed registered. One of the two joint patentees by deed assigned his interest in the patent to a third person, and re- leased to him all the rights of action, &c., against him of both patentees ; and the deed was set out completely on the Eegister : — Held, that the other joint patentee was entitled to have the entry struck out. . In re Horsley and Knighton' s Patent, 39 Law J. Eep. (n.s.) Chanc. 157 ; Law Eep. 4 Chanc. 784. 21, — The assignee of a patent may maintain a suit against the assignor, and subsequent licensees from the assignor without notice of the assignment, to restrain them from using the patent, although the assignment has not been registered pursiiant to the 35th section of the Patent Law Amendment Act, 1852. Semble — The registration of a patent relates back to the date of the assignment. Hassall v. Wright, V.C.M.,Law Eep. 10 Eq. 609. (G) Licence to use : Eotalties. 22. — Construction of a deed granting the sole right of working a patent to a licensee, with a cove- nant by the patentee to defend the patent against infringers, with a condition that, upon neglecting to do so, the royalties should cease, "after the time of the infringer commencing to work the said pro- cesses," until the patentee should, by law or other- wise, have restrained such person. And held, that the condition for the suspension of the royalties did not arise until the patentee neglected to pro- ceed against the infringer, after notice of such in- fringement — a condition accessory to a covenant, controlled by the covenant. Henderson v. The Mostyn Copper Company, Law Eep. 3 C. P. 202. (H) Infringement. (o) What is generally. 23. — A patent for an entire combination is not infringed by a different combination, for the same object, of the same elements though important, or of equivalents for them, if not a mere colourable evasion or imitation. Semble — In considering the question of colourable evasion, the Court will look at the novelty of the object of the combination and of the parts combined. The principle which protects a patentee against the use by others of mechanical equivalents is in- applicable to a case where the whole invention depends entirely on the particular machinery by means of which a well-known object is attained. The plaintiff, by bill in Chancery, alleged an in- fringement of his patent. The patent was granted in 1854, and specified a combination of mechanism applicable to spinning mules ; and the first claim was for " the novel construction, combination and application of mechanism hereinbefore described, whereby one half of the clutch or catch box, here- infore described, or any mechanical equivalent therefor, is connected with or acts upon cams or other similar parts of mechanism direct." There were other claims, but in respect of these breaches were not alleged in the plaintiff's particulars of breaches. The defendant's patent, granted in 1860, speci- fied a combination of mechanism which embodied the leading idea of the plaintiff's patent, and by which one half of a clutch-box was made to act upon cams direct, and he adopted some of the elements combined by the plaintiff, but he disposed them in a different manner. These were impor- tant parts of the prior combination, and, though old mechanical contrivances, were new in respect of the particular mode in which the plaintiff ap- plied them ; and the immediate object of their eombination by him was new, viz., to make a cluteh-box act on cams direct. The effect brought about by the direct action, of the dutch- box on the cams had long previously been produced, but less advantageously, by other contrivances of various kinds. The defendant's mode of combina- tion effected the common object of each patent in a more beneficial manner than it was or could be effected by the mode of combination specified in the plaintiff's patent, and it displayed an equal amount of inventive genius : — Held, first, that the plaintiff was bound by the particulars of breaches deli- vered, and that the principle of the 41st section of the Patent Law Amendment Act, 1862, was appli- cable to trials in Chancery, in which particulars of breaches were ordered, as well as to trials at common law ; secondly, affirming the judgments of Westbury, L.O., and of "Wood, V.C, that the plaintiff's claim was limited to the entire combina- tion claimed, as before described in his specifica- tion; thii-dly, that the defendant's combination 414 PATENT (H). was not a mere colourable evasion, and thfit there was no infringement. Held, also, that under the 3rd section of the Chancery Amendment Act, 1868, there is an ap- peal from any order made, either by the Court of Appeal in Chancery, or by the Court of original jurisdiction, upon a motion for a new trial of a cause, whether involving issues of fact or of law, where the same has been tried before a Judge in Chancery, either with or without a jury. Curtis and others v. Piatt, 35 Law J. Eep. (n.s.) Chanc. 852 ; Law Eep. 1 E. & I. App. 337. 24. — Beer was sent from Scotland to England, for exportation only, in bottles secured with cap- sules manufactured abroad, but the manufacture and use of which in England were protected by patent: — Held, affirming the decision of one of the Vice Chancellors, that the transitory resting in England of the bottles so secured constituted a user in infringement of the patent. Betts v. Neilson, 37 Law J. Eep. (s.s.) Chanc. 321 ; 3 De Gex, J. & S. 82 ; Law Eep. 3 Chanc. 429. Affirmed, by the House of Lords, on appeal, 40 Law J. Eep. (n.s.) Chanc. 317 ; Law Eep. 6 E. & I. App. 1. 25. — The importation into this country and sale here of goods manufactured abroad by a pro- cess patented in this country is an infringement of the patent. Elmslie v. Boiirsier, 39 Law J, Eep. (n.s.) Chanc. 328 ; Law Eep: 9 Eq. 217. 26. — The plaintiff took out a patent for im- provements in the manufacture of frills or ruffles, and in the machinery or apparatus employed there- in. His specification described the invention as relating to a peculiar manufacture of frills or ruffles, and a peculiar combination of mechanism to be applied to a sewing machine for producing' the same, by which the fabric was folded or crimped by a reciprocating knife, and the folds stitched by the sewing machine, so as to be kept permanently in their place. The claim was, first, for the general construction, arrangement and combination of machinery, apparatus or means for producing crimped or plaited frills or trimmings in a sewing machine ; secondly, for the application and use of a reciprocating knife for crimping fabrics in a sewing machine; thirdly, for the peculiar manufacture of crimped or plaited frills j)r trimmings, as described in a drawing which represented a double frill. Knives had been used for crimping by hand, but the plaintiff's use of a reciprocating knife was novel. The defendants bought and sold in the way of their trade as drapers plaited trimmings made by one Orr, by a machine which crimped or folded the material by means of an oscillating or reciprocating knife, but did not sew the trimmings, the sewing being done subsequently by hand or sewing machine. This use of the reciprocating knife was an infringe- ment of the plaintiff's patent: — Held, first, that the plaintiff's patent was for a new mode of manufacturing frills and ruffles by means of a reciprocating knife, and was not for a new frill or ruffle, and therefore that the subject of the patent was a good subject ; secondly, that the essential improvement introduced by the plaintiff was the use of a reciprocating knife, and that his patent did not apply simply to the use of such a recipro- cating knife in a sewing machine, and therefore, that Orr's process, which used a reciprocating knife separately from a sewing machine, was an infringement of the plaintiff's patent; thirdly, that the buying and selling by the defendants, in large quantities, of trimmings, which they knew to have been made by Orr's process, was an in- fringement by them of the plaintiff's patent, even though they did not know that Orr's process was an infringement of the plaintiff's patent. The title of the patent being for improvements in the manufacture of frills or ruffles, and the provisional specification describing the invention as relating to a particular manufacture of friUs or ruffles, the complete specification described the in- vention as relating to a particular manufacture of frill, ruffles or trimmings : — Held, that this was no such material variation as to render the patent invalid. Wight v. Hitchoock and others, 39 Law J. Eep. (n.s.) Ex. 97. (J) Eights of Crown. 27. — By letters patent, dated the 26th of November, 1862, the Crown granted to the sup- pliant special licence, power, sole privilege and authority to use, exercise and vend a certain in- vention for improvements in the construction of ships, and to "enjoy the whole profit, benefit, commodity and advantage from time to time coming, growing, accruing and arising by reason of the said invention for and during the term of," &e. The letters purported to be granted upon the petition of the suppliant, and " of your especial grace, certain knowledge and mere motion"; and they contained a command " to all and every person and persons, bodies politic and corporate, and all other our subjects whatsoever," that they should not use the invention without the consent, licence and agreement of the suppliant, his exe- cutors, &c. on such pains and penalties as could be justly inflicted, and the liability to damages. There was also a clause that the letters should be void if the suppliant, his executors, &c. should " not supply or cause to be supplied for our service all such articles of the said invention, as he or they should be required to supply by the officers or Commissioners of the department of our service for the use of which the same shall be required," &c. It was further provided, that the letters were to be construed in the most favour- able and beneficial sense for the best advantage of the suppliant, his executors, &c. The Crown having made use of the invention during the currency of the letters patent, a petition of right was preferred by the inventor. Held, first, that the Crown was not excluded from the use of the invention. Secondly, if the effect of the letters was to ex- clude the Crown, yet that a petition of right could not be maintained in respect of the infringement of the patent right. Feather v. The Queen, 36 Law J. Eep. (n.s.) Q. B. 200. (c) Liability/ for. 28. — The directors of a company are personally PATENT (H), (I). 415 responsible for the infringement of a patent by their workmen, notwithstanding such infringe- ment may be in contravention of orders. Betts v. Be Vitre, 37 Law J. Eep. (n.s.) Chane. 325 ; Law Eep. 3 Chanc. 429. {d) Measure of damages. 29. — A suit was instituted to restrain the de- fendants from infringing the phiintiff's patent for an invention applicable to steam vessels. By the decree the defendants were ordered to pay to the plaintiff the damages which he had sustained by reason of the defendants' user or vending of the in- vention. The plaintiff had been in the habit of granting licences to use the invention at the rate of 2s. 6d. per horse-power per ship : — Held, that the compensation to which the plaintiff was entitled was a sum calculated on this basis upon the ships to which the defendants had applied the invention, and that he was not entitled to any additional sum in respect of contracts which he had missed by reason of the defendants' piracy. Penn v. Jack, 37 Law J. Rep. (n.s.) Chanc. 136; Law Eep. 5 Eq. 81. (e) Slander of title. 30. — The plaintiffs carried on the business of machine makers, and in their business sold ma- chines to certain persons. The defendant wrote letters and made verbal statements to such per- sons, alleging that the machines so sold were in- fringements of a patent which he had obtained for such machines, and making claims in respect of such alleged infringement and the use of the ma- chines. An action having been brought by the plaintiffs in respect of the injury caused by these letters and statements, the defendant pleaded not guilty. The Court ordered him to deliver particulars to the plaintiffs, shewing in what part or parts the machines of the plaintiffs mentioned in the decla- ration were an infringement of the defendant's patents, and pointing out by reference to line and page of his specifications what part of the inven- tions therein described he alleged to have been infringed. Wren, and another v. Wield, 38 Law J. Eep. (n.s.) Q. B. 327 ; 10 Best .& S. 51 ; Law Eep. 4 Q,. B. 213. 31. — On a petition praying for an extension of the term of letters patent for an invention, defined by the specification as "Metallic Soap," to be applied as a coating to ships' bottoms, it appeared that the subject-matter of the invention was com- posed of well-known artiples in common use. Their Lordships refused to recommend any exten- sion on the grounds : first, that the subject-matter of the invention was not sufficiently defined by the term "metallic soap"; secondly, that the invention consisted of a combination of substances ^ in common use. In re M'lnnis's Patent, 37 Law J. Eep. (n.s.) p. C. 23 ; Law Eep. 2 P. C. 54. 32. — Where an invention has not, for the four- teen years for which it has been patented, been brought into practical use, there arises a strong presumption against its utility, which, unless re- butted, will be sufficient to prevent an extension of the term. This presumption rebutted by the circumstances of the limited market and demand for the invention (improvements in buoys and light-vessels), and an extension granted in favour of the personal- representative of the patentee, and assignees of a moiety. In re Herbert's Patent, Law Eep. 1 P. C. 399. 33. — The fact that for fourteen years a patent has not been brought into use, raises a very strong presumption against its utility, and this presump- tion can only be rebutted by the very strongest evidence ; the evidence in the present case tending to show that the patent was not a practical one. Prolongation was refused. In re Allan's Patent, Law Eep. 1 P. C. 507. 34. — The Judicial Committee will not r^om- mend an extension of the term of letters patent, unless it is proved to the satisfaction of their Lordships that the original invention is of con- siderable merit, that it is of public utility, and that there has been inadequate remuneration. The Judicial Committee will not, upon an appli- nd need not be mentioned in an affidavit of docu- ments made in compliance with the usual order, although they contain accounts of rents received for the trustee. The Earl of Eglinton r. Lamb, 35 Law J. Rep. (n.s.) Chanc. 113. 11. — A decree was pronounced, for a sale of real estate, in a partition suit. The decree contained an inquiry of what real and personal estate the late father of the defendants, who were tenants in common of the property, died seised and possessed, and what had become thereof. Some documents relating to the estate were in the hands of some of the defendants, which they declined to produce at the request of the others. A summons was then taken out by those other defendants calling on their co-defendants to make an aifidavit as to " all the documents relating to the matters in question in the suit," in their possession ; — Held, that the afEdavit must be made as asked, and that it was for the respondents to shew whether the affidavit should belimited in its terms. Kennedy v. Wake- field, 39 Law J. Rep. (n.s.) Chanc. 827. 12. — What is a '' reasonable suspicion" within the principle ofKoely. Noel, 1 De Gex, J. & S. 468, that an affidavit of documents, though in form suf- ficient, is in reality not so, and will induce the Court to order a further affidavit. Wright v. Pitt, Law Rep. 3 Chanc. 809. 13. — Where a defendant has not been required to answer as to possession of documents, but is required by summons to make an affidavit as to documents in his possession and for production, and he makes the affidavit without claiming privi- lege as to some, or the riglit to seal up certain parts of books, &c., he may afterwards apply by summons to that effect, and the costs will be cos^s in the cause. Talbot v. Marshfield, Law Rep. 1 Eq. 6. (C) Practice in pabticulab Cases. (a) Inspection by witnesses. 14. — Where the solicitor for the defendant made affidavit that it was material and necessary, on behalf of his clients, that certain documents, stated in the plaintiffs' bill and in their affidavit as to documents, should be produced to certain of the defendant's witnesses prior to their giving evi- dence in the cause, for the purpose of their seeing and inspecting certain particulars and marks ap- pearing on such documents, the Court made the order that the witnesses of whom the defendant should furnish a list should have liberty to inspect such documents in the presence of the chief clerk and of the solicitors on both sides. Boyd v. Digest, 1865-70. (i) Inspection hy expefrt. 15. — A defendant may be allowed to inspect and take copies of documents in the possession of the plaintiff by his solicitor or his clerk, and to in- spect and take copies of maps by his surveyor, though he may be a witness in the cause. The Swansea Vale Railway Company v. Budd, 36 Law J. Rep. (n.s.) Chanc. 631 ; Law Rep. 2 Eq. 274. (c) Defendant in contempt. 16. — A defendant in contempt for non-com- pliance with orders of the Court is, nevertheless, entitled to an order for the production of docu- ments by the plaintiff to support his case under an inquiry directed by the decree. Haldane v. EcJcford, 38 Law J. Rep. (n.s.) Chanc. 372 ; Law Rep. 7 Eq. 425. id) Cross-examination of plaintiff on affidavit in support of motion. 17. — ^Where a plaintiff files an affidavit in sup- port of an interlocutory motion for an injunction, and is cross-exp mined upon the affidavit, if he has been served with a noticeto produce, on the cross- examination, all documents in his possession re- lating to the subject matter of the injunction, — he may be ordered, at the request of a defendant, to produce any documents referred to in the affida- vit, or which are material to the motion ; although such defendant may not have had time to put in an answer to the bill, as directed by the 16 & 16 Vict. c. 86, s. 20. Cliff v. Bull, 38 Law J. Rep. (n.s.) Chanc. 571. (e) Summons for production after decree. 18. — A summons for production of documents, after decree, ought to specify the points on which discovery is sought. Haldane v. Eckford (2), 38 Law J. Rep. (n.s.) Chanc. 372 ; Law Rep. 7 Eq. 426. (/) Whole document. 19. — A defendant was ordered to produce the whole of an agreement, although in his affidavits as to documents he had set out two clauses of the agreement, and sworn that those clauses alone assisted the plaintiff's case, or related to the mat- ters in question in the cause. Luscombe v. Steer, 37 Law J. Rep. (n.s.) Chane. 119. {g) To purchaser under sale by Court. 20. — In the course of an administration suit, certain esfcites in Venezuela were sold to one who was not a party to the suit. The contract of sal^, which was approved by the Court (the purchaser having appealed and submitted to any order that might be made), provided that, in case of any damage sustained by the purchaser, by reason of adverse claims, the amount of such damage should, in case of disagreement, be settled as the Judge should determine. Adverse claims were made, and proceedings taken in chambers to ascertain the amount of damage : — Held, that the purchaser was entitled, on summons in chambers, to require 'SR 490 PEODUCTION AND INSPECTION OF DOCUMENTS IN EQUITY (C), (E). production by the vendors of all documents relating to the matters in dispute between him and them. Dent V.Bent, 35 Law J. Eep. (n.s.) Chanc. 112; 35 Beav. 126; Law Eep. 1 Bq. 186. (A) As against mortgagee. 21. — The rule that a mortgagee is not com- pellable to produce the title deeds does not apply to the mortgage deed itself ; the mortgage deed, being the title of the mortgagor to the equity of redemption, is open to his inspection. Where a solicitor, who had acted both for mortgagor and ■ mortgagee in the preparation of the deed, subse- quently became transferree of the mortgage, the Court considered that he did not stand in the ordinary position of a transferree, and ordered production of deeds subsequent t> the mortgage. Patch V. Ward, Law Eep. 1 Eq. -136. 22, — By an indenture of s ittlement estates were conveyed (subject to a power of appointment) to certain uses, under which C wxe. (a) In general, [See Negligence ; and Nos. 49-53 supra.] (J) Neglcet of duty imposed by statute. 73. — The plaintiff negligently fastened his horse by the bridle to a railing in the open yard of a public-house, within which he remained for two hours. The highway leading from the house crossed the railway of the defendants on a level, and they had set up gates acrossboth ends of the highway at the crossing. The gates opened out- wards from the railway, and closed with a catch, but were easy to open, and would open when a train passed, and there wag not a gatekeeper at the crossing. During the plaintiff's absence the horse escaped from the railing, owing to the negligent fastening, strayed to the highway and along that to the crossing, and, the gate there not being closed, through the gateway to the railway, where it was killed by a passing engine of the defen- dants': — Held, on the authority of Fawcett v. The York and North Midland Bailway Company, 16 Q. B. 610, that under statute 6 & 6 Vict. e. 55, sect. 9, an obligation was imposed on the defen- dants to keep the gates closed against stray cattle on the highway, that the accident was caused by the statutory misconduct, and that the plaintiff was entitled to recover from them the value of the horse. Dickinson v. The London and North- West- ern Bailway Company, H. & E. 399. (0) Liabilities, Eights, and Duties as Careiees. [See Cabeieks.] (P) Eailway and Canal Tbaffic Act, 1854. Beasonableness of conditions of special con- tract. [See Caeeiee, 12, 13.] Signature of special contract. [See Cae- eiee, 16.] Protection from liability. [See Caeeiee, 17-] Undue preference. [See Caeeiee, 29-31.] (Q) Offences : alteeing Signals. 74.— 'The 24 & 25 Vict. c. 97, sect. 36, enacts, that whosoever by any unlawful act shall obstruct or cause to be obstructed any engine or carriage using any railway shall 'be guilty of a misde- meanor. EAPE-EATES (A). 513 The prisoner in the night-time altered the position of two arras of a semaphore signal on a railway station, so as to change the signal from "all clear" to "danger" and "caution" respec- tively, and also altered the colour of two distant signals on the line from white to red, thereby changing the signal from "clear" to "danger." The driver of a goods train, which under ordinary circumstances would have passed through the station without slackening speed, in consequence of the state of the ^signals shut off steam and approached the station so cautiously that he could at any moment have come to a standstill. The mail train following the goods train on the same line of rails, was due at the station half-an-hour after the goods train so passed through the sta- tion: — Held, Martin, B., dissentiente, that the prisoner had caused the engine and train to be obstructed within the meaning of the above sec- tion. The Queen v. Hadfield, 39 Law J. Eep. (n.s.) M. C. 131 ; Law Eep. 1 C. C. E. 253. (E) Duties on Eailwat Fahes. [See Eevenue, 4.] _ EAPE. (A) What amounts to. (B) Carnal knowledge of girl rNDEE ten. (A) What amounts to. 1, — The mere fact of connection with an idiot girl capable of recognising and describing the pri- soner, but incapable so far as her idiotcy rendered her so of expressing dissent or consent, and there- fore without her consent, is not sufficient evidence of a rape to be left to a jury. Quaere— M« Qaeen v. Fletcher, Bell C. C. 63 ; 28j Law J. Eep. (n.s.) M. C. 85, overruled. The Queen v. Fletcher, 35 Law J. Eep. (n.s.) M. C. 172 ; Law Eep. 1 C. C. E. 39. 2. — To constitute a rape on a woman conscious and capable of giving consent at the time of con- nection, there must be an actual resistance of the will. Non-resistance to connection, permitted under a misapprehension induced by the conduct of the man, by a woman conscious and capable of consenting, amounts to consent, though 'uninten- tional, and prevents the offence amounting to a rape. The Queen v. Barrow, 38 Law J. Eep, (n.s.) M. C. 20 ; 10 Best & S. 674 ; Law Eep. 4 Q. B. 577. (B) CaBNAL KNOWIEBBE OF GIBL UNDEE TEN. [See Assault, 1, 2,] EATES. (A) Who are bateabie to the Pooe. («) Owner or occupier. (6) Incoming and, outgoing tenants. (c) Promoters of undertaking, (B) What Peopeety is eateablb. (a) Beneficial occupation. Digest, 1865-70. (i) Tidal river : arm of the sea. (c) Moorings in riVer, ^c. id) Gas-works. (e) Iron mines. (j) Unoccupied houses. (g) University buildings. (h) Incorporeal hereditament. (i ) Saleable underwood. (k) Metropolitan Board of Works. (l ) Special exemptions. (1) In favour of the Crown and public institutions. (2) Property/ of municipal corpora- (3) Land used as a railway under Local Government Act. (4) Exemption from highway rate. (C) Eateablb Value and Pkinciple of As- sessment. (a) Portion of a railway, {b) Net annual value : deductions. ■ (c) Canal rented by railway company. (d) Wharves : payment of dues. (e) Tithe rentcharge ; deduction for curate's (/) Artificial watercourse for working mine, (g) Lease of right of taking game. (D) To what Parish rateable. (E) Valuation List : Duty of Overseers. (F) Appeal against. [15 & 16 Vict. c. 81, sect. 26. 25 & 26 Vict. c. 103 amended. The latter of these Acts declared in_no respect to apply to assessments made or to be made by any committee appointed by Justices under the first Act, and sect. 26 of the first Act amended. 29 & 30 Vict. u. 78.] [4 & 5 Will. 4. c. 76, sect, 24, extended. 30 & 31 Vict. c. 106, sect. 14.] [2 Will. 4. c. 45, sect. 30, and 6 & 7 Vict c. 102, sect. 75, made to apply to occupiers of premises capable of conferring the franchise for a county, under 30 & 31 Vict. o. 102. 31 & 32 Vict. c. 58, sect. 30.] [17 Geo. 4. c. 38, sect. 12, repealed, and 13 & 14 Vict. c. 99, repealed so far as relates to the rating of small tenements ; and fresh provisions enacted. 32 & 33 Vict. c. 41.]" [New pijovisions enacted for the assessment of rateable property in the metropolis. 32 & 33 Vict, c. 67.] (A) Who are rateable to the Poor. (ffl) Owner or occupier. X, — The appellant and five other persons each occupied^ a room in a six-roomed house in the parish of Sunderland-near-the-Sea, in the parlia- mentary borough of Sunderland ; each had the exclusive possession of his own room, and used in common the street-door, &c. ; the owner occupied no portion of the house ; at the time of the pass- ing of the 30 & 31 Vict. c. 102, the owner was rated in respect of the whole house, instead of the occupiers, by virtue of the Small Teneinfints Act, 13 & 14 Vict. c. 99, the provisions pf which were 3U 514 RATES (A), (B). then in force in the parish ; after the passing of the 30 & 31 Vict. c. 102, the churchwardens and overseers of the parish separately rated the six occupiers : — Held, that the rate was bad, and that the owner (not the occupiers) was rateable, under the exception which is contained in 30 & 31 Vict, c. 102, sect. 7, and which provides that "where the dwelling-house or tenement shall be wholly let out in apartments or lodgings not separately rated, the owner . . . shall be rated ... to the poor-rate." Stamper, appellant; The Churchwar- dens and Overseers of the Poor of the Parish of Sunderland-near-the-Sea, respondents, 37 Law J. Eep. (n.s.) M. C. 137; Law Rep. 3 C. P. 388. (J) Incoming and outgoing tenants. 2.— Statute 17 Geo. 2. e. 38, sect. 12, enacts that where any person shall come into or occupy any house, &c., from which any other person assessed shall remove, or which at I he time of making the rate was unoccupied, evevy person so removing fronx, and every person .so coming into the same, shall be liable to pay su"h rate, in pro- portion to the time that he oceupieil the same respectively. On the 25th of October a poor-rate was m;ide for eleven months, in which A was assessed for a house ; he went out of occupation on the 8th of November, and it remained imoccu- pied until the 10th of May following: — Held, that sect. 12 did not relieve him from payment of the rate for the time during which the house was un- occupi pd. Edwards v. The Overseers of Busholme, 38 Law J. Rep. (n.s.) M. C. 153 ; io Best & S. 526; Law Eep. 4 Q. B. 554. (c) Promoters of undertaking. 3. — By the Lands Clauses Consolidation Act, 1845, sect. 133, promoters of any undertaking who become possessed by statute of lands liable to the poor-rate, are, till their works are completed, " to make good the deficiency " in the rate conse- quent on their taking the land, the deficiency to be computed according to the rating at the time of the special Act, and to be paid on demand : — Held, that this section does not make such pro- moters liable to be rated, but only to pay such deficiency. ?%c Mai/or, ^c. of London, v. The Churchwardens and Ovrrseers of St. Andrew's, Holborn, 36 Law J. Rep. (n.s.) M.C. 95; Law Rep. 2 C. P. 574. 4. — By the Lands Clauses Act, 1845, sect. 133., promoters of any undertaking who become pos- sessed by statute of lands liable to be assessed to the poor-rate, are till their works are completed and assessed to " make good the deficiency " in the rate consequent upon their taking the land : — Held, that under this section the Metropolitan Board of Works being " promoters " within this section were liable pending the works to make good the deficiency in the ■ rates of a city parish caiised by the demolition of houses upon land ac- quired by them under their statutory powers for the purpose of making a new street through the parish. Wheeler and others v. The Metropolitan Board of Works. 38 Law J. Rep. (n.s.) Ex. 166 ; Law Eep. 4 Ex. 303. (B) What Property is Rateable. (a) Beneficial occupation. 5. — The resident freemen of the city of L had each the right of turning out two head of cattle upon a commonable pasture situated within the precincts of the city. The pasture was about thirty acres in extent, and there were about 560 freemen. The soil was vested in the corporation of L, who appointed a commons warden and maintained the fences, and who had the right to inflict certain fines for illegally stocking the pas- ture to the amount of 11. 19s. a year. The ave- rage amount of fines, however, was legs than 6s. a year, and did not cover the costs of salaries and repairs. The corporation were actually losers by reason of the pasture and the- expenses attaching to it. Being assessed to a poor-rate fn respect of their occupation, they appealed ; — Held, that the whole of the profits being exhausted by the free- men in the exercise of their rights, there was nothing in respect of which a tenant, within th") meaning of the Parochial Assessment Act, would pay a rent, and therefore that the corporation were not liable to be assessed. The Corporation of the City of lAncoln v. The Overseers of the Extra-Paro- chialPlace ofBolmes Common, 36 Law .T. Rep. (n.s.) M. C. 73 ; 8 Best & S. 344; Law Eep. 2 Q. B. 482. 6. — The appellants, a railway company, were assessed to a poor-rate in respect of the line of railway, sidings, wharf and tips occupied by them. Certain trustees were in occupation of docks ad- jacent to the wharf and tips. The sum of 2,720^. part of the rateable value upon which the appel- lants were rated, was made up of the yearly value of wharfage rates which were to be paid to the trustees, un&er an agreement for a lease of the wharf to the appellants by the trustees. By this agreement, the appellants were to procure all the trade which they might bring for shipment to be shipped at the docks. The practice was that the appellants' contractor furnished to the trustees monthly accounts of the quantities of goods shipped at the wharf, and the trustees collected the said rates from tlie freighters or consignees, and applied them to the purposes of the trust : — Held, that the , appellants could not by such an arrangement with the trustees free themselves from liability to be rated in respect of the value of the hereditaments which they occupied, and that although the wharfage rates were not re- ceived by them, they must be taken into account as enhancing the value of the occupation. The Queen v. The Bhymney Railway Company, 38 Law J. Rep. (n.s.) M. C. 75; 10 Best & S. 198; Law Rep. 4 Q. B. 276. The Queen v. The Inhabitants of Tlmrlstone, 1 El. & El. 502 ; 28 Law J. Eep. (n.s.) M. C. 106, commented on. Ibid. (i) Tidal river : arm of the sea. 7. — 1. An estuary or arm of the sea is prim4 facie extra-parochial ; but this presumption may be rebutted. The Ipswich Dock Commissioners v. The Overseers, ^c, 7 Best & S. 310. 2. A wet dock was constructed on a portion of land reclaimed from the ooze or bed of a navigable BATES (B). 515 tidal river. In order to prove that it was not part of the adjoining parieh, evidence of perambu- lations of that parish and of others abutting on other portions of the reclaimed land was given, which seemed to shew tliat the rights of those parishes extended to only high-water mark. Against this, however, it appeared that in each of the parishes considerable tracts were reclaimed from the ooze or bed of the river, and rated to the poor-rate: — ^Held, that the presumption of pa- rochiality arising from payment of these rates outweighed the contrary presumption arising from the perambulations. Ibid. 3. On appeal against a poor-rate by the Com- missioners of the Ipswich Docks, it appea?'ed that by statute 45 Geo.- 3. c. ci, for rendering more commodious the port of Ipswich, Commissipners were appinted for improving part of the river Orwell, within the borough of Ipswich, and section 14 enacted, that certain duties should be paid to them by the owners and masters of vessels be- longing to or coming to the port between Stoke Bridge and Levington Creek, a distance of about eight miles, and by the owners of all goods, wares, merchandise, and commodities exported from or imported into the port of Ipswidi within those limits, and for all ships coming into tiie river within those limits. By statute 56 Geo. 3. c. xxvi, paving Commissioners for the town of Ips- wich were empowered, in addition to rates on houses and land, to levy a certain duty on all coals which should be imported or brought into, landed or debvered within the river Orwell or town of Ipswich, or the harbour thereof. In 1837, the paving Commissioners obtained anotlier Act, omitting the sections by which they were em- powered to levy the coal duty, in pursuance of an arrangement by wliich the river Commissioners in consideration of the paving Commissioners giving up that duty, took upon themselves the debts of the latter. In the same year the river Commis- sioners obtained the statute 7 Will. 4. & 1 Vict. c. Ixxxiv, which repealed statute 45 Geo. 3. c. ei, and appointed the Ipswich Dock Commissioners. Under that and subsequent Acts a wet dock was constructed and had since been maintained ; and by section 39 the wharfs, &c., and so much of the channel and ooze or mud of the river Orwell as would be inclosed within the area of the dock, &c., was vested in them. The Ipswich Dock Act, 1852, 15 & 16 Viet. c. cxvi, s. 40, re-enacted section 14 of statute 45 Geo. 3. c. ci. By section 42, vessels navigating the river above Levington Creek shall be deemed to be within the river of the port as if they had come into the dock. By section 43, vessels remaining in the dock for more than two months shall pay an additional duty per month. Section 52 continues to the Commissioners the duty of Is. per ton, and the further duty of 6d. per ton given by former Acts, for every ton of coal which should be imported or landed within the river Orwell or town of Ipswich, or the har- bour thereof, or otherwise brought or delivered within the limits of the Act, in addition to all other duties. All the moneys raised under the Acts were expended on the docks and on improve- ments in the river, in pursuance of the require- ments of those Acts. The wet dock consists of a portion of the ooz6 and tidal channel of the Orwell, which is about twelve miles in length, and lies between the town of Harwich towards the south on the coast, and the town of Ipswich in- land to the north. The river G falls into the Orwell at its northernmost extremity at or near Stoke Bridge. The flow of 'the tide reaches a point upwards of a mile beyond Stoke Bridge. The channel of the Orwell is always covered at low water. Evidence of perambulations, con- sisting of entries in » book produced from the chest of the respondent parish, of the earlier of which the handwriting of deceased vestry clerks, tended to shew that the Orwell below high-water mark was extra-parochial. On the other hand, evidence was given that between 1797 and 1811 tracts of land were reclaimed from the bed of the Orwell on the side of the respondent and other parishes, and that in those cases persons who re- claimed them were rated to the poor-rate without opposition. Ibid. (1). Qusere — Whether the site of the wet dock was an estuary, or arm of the sea. Ibid. (2). Held, that the wet dock was parochial. Ibid. (3). That the Commissioners were rateable for the revenue derived from the duties paid by vessels which navigated the river above Levington Creek, though they did not actually enter the dock ; ibid, but (4). That they were not rateable in respect of the coal duties, as they were not attached to or connected with the occupation of the docks. Ibid. (5). Quaere — -Whether the earlier entries in the parish book weje admissible in evidence. Ibid. 8. — The boundary of a township extended along a part of its course as far as the mouth of a tidal river. There was nothing to shew whether the township did or did not extend beyond the ordinary or medium high-water mark. Part of the L docks was afterwards constructed so as to occupy the foreshore of the river between the ordinary or medium high-water and low-water mark, the land having been reclaimed so that the tides no longer flowed over it :— Held, that the occupiers of the docks were not rateable in respect of this part of the foreshore to the highway rates of the township, as a tidal river must be treated as an arm of the sea, and its foreshore, in the absence of evidence to the contrary, excluded from the limits of the adjoining parish or township. I'he Trustees of the Duke of Bridgewater, appel- lants, V. The Surveyors of the Highways of the Townshvp of Bootle-cum-IAnacre, respondents. 36 Law J. Eep. (n.s.) Q. B. 41 ; 7 Best & S. 348 ; Law Eep. 2 Q. B. 4. The King v. The InhcMtaipts of Landulph, 1 Moo. & E. 393, questioned : and M'Cannan v. Si«- clair, 2 El. & El. 53 ; 28 Law J. Eep. (n.s.) M. C. 247, explained. Ibid. 9, — By 'an Act of Parliament cert;ain Com- missioners (the appellants) were appointed for effecting improvements in the harbour of S. They were authorised and required to deepen and cloansa 3 u 2 616 RATES (B). the channel of the harbour, and to make an arti- ficial entrance with piers, by which ships might pass from the sea into the harbour. Tolls were to be paid in respect of such vessels as entered the harbour, but were not to bg received by the appellants to the full amount authorised by the Act until the whole works were completed. The piers were erected, and the channel deepened and cleansed, and the Commissioners received tolls in respect of the vessels which entered the harbour. There was nothing in the Act to shew that they ■were to be considered ks purchasers or owners of the land upon which the works were to be dene : — Held, first, as to the channel, that the Com- missioners had simply a power to make a right of passage from the sea to tl e harbour, and that they were not rateable to the poor-rates in respect of such right of passage ; "secondly, that, although they were occupiers of the land upon which the pier stood, yet that the occupation could not be taken to be enhanced in value by the revenue derived from the tolls, inasmuch as an occupier of the piers would get no part of the tolls, or derive any benefit from the harbour, and there- fore that the appellants were not liable to be rated to the poor-rates, the piers themselves being worth nothing. The Commissioners for Improving the Har- bour of New Shoreham, appellants, v. TheChnrch- wardens and Overseers of Lancing, respondents, 39 Law J. Eep. (n.s.) M. C. 121 ; Law Eep. 5 G. B. 489. (c) Moorings in river, ^c. 11. — The corporation of Oxford were the owners of the soil and bed of the river Isis. A boat- club, composed of members of the University of • • Oxford, were possessed of a barge or house-boat floating on the river, and moored there at a dis- tance of about thirty feet from the bank, by two iron rings fixed to the barge, and passing loosely and movably round two solid fixed posts driven into the bed of the river. These posts were of such a diameter as to allow the rings to pass freely up and down them, and to allow the barge to rise and fall with the water of the river. Between the barge and the bank four other posts were driven into the bed of the river, and the club were possessed of a movable frame of boards laid down on the top of these four posts, but not fixed either to them or the bank, so as to form a gangway from the barge to the bank. The_ posts had remained driven in the bed of the river without the express licence of the corporation for more than twenty years, and no rent had ever been paid by the club in respect of any of the posts. The barge was used as a means of access to boats, and as a dress- ing-room : — Held, that the club were not rateable as occupiers of the posts and of the barge attached to them. ffra«<, appellant, v. The Local Board for the District of Oxford, respondents, 38 Law J. Eep. (n.s.) M. 0.39; 9 Best &S. 900; LawEep.4Q.B. 9. {d) Gas-works. 12. — A gas company was rated to the poor-rate in respect of the following articles ; — meters sol- dered to the leaden service-pipes on the premises of consumers, but not fixed in any way so as to interfere with their removal ; retorts, or instru- ments for the production of gas, distinct and severable from the foundation or basement floor of the company's premises, but attached to the floor by hardened fire-clay ; " purifiers," or massive iron vessels standing on a brick base, but not fixed to it, though connected on one side with pipes passing through the soil from the retorts; "steam-engines" fastened by screw-bolts to a stone base fixed in the soil, and capable of being detached by un- screwing the bolts ; boilers set in brickwork fixed in the soil ; gas-holders, or vessels of plate iron for storing gas, not fixed in any way, but placed so as to rise and fall in circular tanks excavated beneath the soil, and easily moved for the purpose of repairs. According to the practice and course of business in letting gas works, the tenant would have to take to and find capital for all the articles above enumerated : — Held, that the retorts, puri- fiers, steam-engines, boilers and the movable ■fiart of the gas-holders appeared to be attached to the inheritance, for the permanent improvement of it, and ought to be included in the value of the pre- mises for the purpose of rating; but that the meters must be excluded, as they could not bo considered as part of the gas-works, and never were so attached to the houses as to lose the character of chattels. The Queen v. The Inhabit- ants of Lee, 35 Law J. Eep. (n.s.) M. C. 105 ; 7 Best & S. 188 ; Law Eep. 1 Q. B. 241. (e) Iron mines. 13. — Iron mines are not rateable to the poor- rate under 43 Eliz. c. 2, s. 1 ; coal mines being the only mines mentioned in the statute. Crawshay V. Morgan, Ex. Cham., Law Eep. 4 Q. B. 581. Affirmed, on appeal, by the House of Lords, 41 Law J. Eep. (n.s.) M. C. 202 ; Law Eep. 5 E. & I. App. 304. (/) Unoccupied houses. 14. — Houses newly erected and not yet occupied are rateable hereditaments within the meaning of the Union Assessment Act, 25 & 26 Vict. c. 103, ss. 14 and 26, and ought to be inserted in the valuation^ lists. The Overseers of Maiden v. The Queen, on the prosecution of the Guardians of Ken- sington ?7«ioK.,>38 Law J. Eep. (n.s.) M. C. 125; Law Eep. 4 Q. B. 326. (g) University buildings, 15. — A University (that of Edinburgh in this case) although a great public and national institu- tion, is not Crown property, although it is subject to the visitorial authority of the Crown, and is therefore liable to be rated to the poor. Greig v. The University of Edinburgh, Law Eep. 1 Sc. App. 348. {h) Incorporeal hereditament. 16. — The manor of B (except the mines, &c.) was conveyed to trustees in trust to hold the rents and profits for the benefit of the owners of ancient teuemepts within the manor. By a provisional order, confirmed by an inclosure Act, a moor, part of the manor, was converted into a stinted pasture, part of which was allotted to the trustees and part to the owners of ancient tenements, according to the value of the property of each tenant. The EATES (B).' 517 provisional order contained the' reservation, " that the right and interest in all mines, &c., also the right of all manner of game upon the said lands, be not in any way affected or interfered with by this inclosure, and that all persons entitled to such mines, &c., and game have the same rights of entry and other rights as heretofore used and enjoyed " : — Held, that the revenue derived by the trustees from the( sale of licences to shoot on the moor was not rateable, as the effect of the provi- sional order was to sever the right of shooting from the soil, and to make it an incorporeal here- ditament, unconnected with the ownership, either of that portion of the moor allotted to the trustees or that allotted to their cestuis que trustent, the owners of ancient tenements. The Overseers of the Poor of the Townships of Hilton and Walker- field, appellants, v. The Overseers of the Poor of the Township of Bowes and others, respondents, 35 Law J. Eep. (n.s.) M. C. 137 ; 7 Best & S. 223 ; Law Rep. 1 Q. B. 359. (i) Saleable underwood. 17. — Beech trees, though looked upon as timber by the custom of that part of the country where they grow, are rateable as " saleable underwood," within the meaning of 43 Eliz. c. 2, b. 1, if they are cut down and trained so as to produce, no matter at what interval, a succession of stems and shoots. Lord Fitzhardinge v. Pritchett and others, 36 Law J. Eep. (n.s.) M. C. 49 ; 8 Best & S. 216 ; Law Eep. 2 Q. B. 135. (A) Metropolitan Board of Works. 18. — The Metropolitan Board of "Works are not rateable to the poor-rate or the general district rate in respect of the land occupied by the sewers of the metropolis ; but they are rateable in respect of land and buildings which are occupied by them in connection with the sewers, and which have an occupation value. The Queen v. The Metropoli- tan Board of Works, 38 Law J. Eep. (n.s.) M. C. 24 ; Law Eep. 4 Q. B. 16. (I) Special exemptions. (1) In favour of the Crown and public institutions. 19. — The occupation of property which is liable to be rated under the 1 st section of the 43 Eliz. c. 2, is an occupation yielding or capable ofyieldinga net annual value, that is to say,a clear rent over and above the probable average annual cost of the repairs,insur- ance and other expenses, if any, necessary to main- tain the property in a state to command such rent, and it is not necessary that the occupation should be beneficial to the occupier ; so that trus- tees, who are, in law, the tenants and occupiers of valuable property upon trust for charitable pur- poses, such as hospitals or lunatic asylums, are rateable, notwithstanding that the buildings are actually occupied bypauperswho are sick or insane. Jones and others v. The Mersey Bocks and Harbour Board ; The Mersey Docks and Harbour Board v. Cameron and others, 36 Law J. Eep. (n.s.) M. C. 1. The only occupiers exempt from the operation of the Act are the Sovereign, because he is not named in the statute, and the direct and immediate ser- vants of the Crown, whose occupation is the occu- pation of the Crown itself ; and the only ground of exemption from the statute is that which is furnished by the above rule. And, consequently, when property yielding a rent above what is re- quired for its maintenance it sought to be exempted on the ground that it is occupied by bare trustpes for public purposes, the public purposes must be such as are required and created by the govern- ment of the country, and are therefore to be deemed part of the use and service of the countrv. Ibid. ^ 20. — The only exemption from liability to poor-rates, under 43 Eliz. e. 2. s. 1, as an " occu- pier," whether in Scotland or England, is the Crown and the servants of the Crown, the latter such as the offices of Secretaries of State, Horse Guards, Post Offices, Police Offices, &c,, but where trustees are the occupiers of the property, in the present case harbours, docks, wharves, &c., in respect of which they receive dues and tolls, and they hold surplus profits for public — not . government purposes, tliey are not exempt from lia- bility (overruling The Queen v. Salter's Load Sluice, 4 Term Eep. 730). Leith Harbour and Dochi Commissioners v. Itispector of Poor, Law Eep. 1 H. L. Sc. 17. 21. — Officers of the county constabulary, under 2 & 3 Vict. c. 93, are not rateable in respect of their occupation of rooms in the police office, in which, by the terms of their appointnlent, they are required to live; neither are Justices of a county rateable as occupiers of a building. Crown pro- perty, wbich they use only as an assize Court, and for meetings of local interest convened by the high sheriff of the county, as in the latter case the building is really iu the hands of the Crown for public purposes, and in the former the rooms are used for the purposes of the government. 7'he Queen v. The Inhabitants of St. Martin's, Leicester ; The Queen v. The Inhabitants of Castle View, Leicester, 36 Law J. Eep. (n.s.) M. C. 99 ; 8 Best & S. 536 ; Law Eep. 2 Q,. B. 493. Jones V. The Mirsey Docks, 35 Law J. Eep. (n.s.) M. C. 1, commented on. Ibid. 22. — By an Act of Parliament, the Justices of the county of Lwere empowered to provide Courts, Judges' lodgings, offices, &c. necessary and conve- nient for carrying on the civil and criminal busi- ness usually transacted at Courts of Assize. They were further empowered to permit the use of the buildings for any lawful purpose for such consi- deration as they might think proper, but so as not to interfere with the use of such buildings and premises for the purposes primarily contemplated. They did allow the corporation of M to use part of the buildings for the city Quarter Sessions, and for the city Court of Eecord, and they received 900?. a year in respect of such use. This sum of 900?., together with all sums received for the use of the buildings, was insufficient to defray the average annual expenses of maintenance and management : — Held, that the Justices were rate- able to the poor-rate in respect of the part so let off to the corporation. The Justices of Lancashire V. The Overseers of the Poor of Chectnaw, 37 Law 518 BATES (B), (C). J. Eep. (n.s.) M. C. 12; 8 Best & S. 548; Law Rpp. 3Q. B. U. 23. — The Gommissioners of Her Majesty'sWoods and Forests were, by Act of Parliament, incorporated for the purposes of making a bridge over the Thames, which had been recommended by the Commissioners foe Improving the Metropolis, and the plans of which had been approved of by the Commissioners of the Treasury. Power was given to obtain an advance of money from the Consolidated Fund, such advance to be repaid out of the money collected by way of tolls which the corporation were authorised to take by means of toll-houses and collectors to be established on the bridge. These tolls were to be applied, first, in payment of all expenses of management and col- lection of the tolls ; secondly, in maintaining the bridge ; thirdly, in repayment of the money ad- vanced ; and the surplus, if any, was to form a fund for such metropolitan improvements as the legislature should determine. By a subsequent Act this provision as to the surplus was repealed, and it was provided that when a sum of 80,000/. and interest had been paid off no toll should be demanded of foot passengers. The bridge was built, and vested in the Commissioners, and the tolls taken exceeded the cost of maintaining the bridge. 13,500Z. of the 80,000^. advanced had been repaid, and not more than 2,600/. to- wards thftsaid sum of 13,600/. was received from the tolls and proceeds of the bridge. The Com- missioners were assessed in a rate for the relief of the poor of the parish in which part of the bridge and of its approaches was situate: — Held, by the Court of Exchequer Chamber, affirming the decision of the Court of Queen's Bench, 37 Law J. -Eep. (n.s.) M. C. 25 ; 9 Best & S. 33 ; Law Eep. 3 4. B. 141, that they were not liable, the only occupation being by the Crown or by its servants. TJie Queen, on the prosecution of the Vestry of St. Georgia s, Hanover Square, v. M'Cann and another, 37 Law J. Eep. (n.s.) M. C. 123; 9 Best & S. 44 ; Law Eep. 3 Q. B. 677. (2) Property of municipal corporations. 24. — The exemption created by 4 & 5 Vict. c. 48, b. 1, of the property of municipal corporations from liability to poor-rate, where this property is in a parish wholly within a borough, the poor of which are relieved by one entire rate, is not affected Viy the decision in Jones v. The Mersey Docks — No. 19 supra — nor by the Union Chargeabilit.y Act, 28 & 29 Vict. c. 79. The Queen v. The Mayor, 4-c. of Oldham, 37 Law J. Eep. (n.s.) M. C. 169; 9 Best & S. 202 ; Law Eep. "3 Q. B. 474. A corporation not included in the schedules A and B of the Municipal Corporations Act, 4 & 5 Will. 4. c. 76, is by 16 & 17 Vict. e. 79, s. 2, en- titled to the benefit of the exemption in 4 & 5 Vict. c. 48, s. 1. Ibid. (3) Land used as a railway under Local Govern- ment Act. 25. — A railway originally constructed without parliamentary powers, and afterwards sold to a railway company under an Act of Parliament, and enlarged and used for public traffic under the pro- vfsions of that Act, is not " land used as a railway constructed under an Act of Parliament" within sect. 55 of the Local Government Act, 1858, 21 & 22 Vict. L-. 98, and is therefore rateable at the full and not only at one-fourth of its net annual value. The 'North-Eastern Bailway Company v. Leadgaie Local Board, 39 Law J. Eep. (n.s,) Q. B. 135; Law Eep. 5Q.B. 157. (4) Exemption from highiuay rate. 26. — The occupiers of certain lands in a hamlet which maintained its own highways, and was locally situated within, and was assessed to the poor-rate for the township of W, which township separately maintained its own poor, were exempt from liability to contribute to the repairs of ttie highways in the hamlet before the passing of the Highway Act, 1835. By section 27 of that Act, all property liable to be assessed to the relief of the poor was made rateable to the repair of highways ; but by section 33 all legal exemptions were pre- served. After the passing of the Highway Act, 1862, the hamlet was, by an order of Quarter Sessions, combined with the township and other places into a highway district under that Act. The highway board for such district issued a pre- cept to the overseers of the township to contribute out of the poor-rates a certain sum for the repair of the highways of the township, now including the hamlet. By section. 42 of the Highway Act, 1862, the former Act was to be construed as one with that Act: — Held, that the occupiers of the lands in question were exempt from contributing to a poor-rate levied by the overseers of the town- ship for the purposes of the relief of the poor, and to meet the precept of the district board as to so much as they assessed in respect of the repairs of the highways ; for that the substitution of the poor-rate for the highway rate by the Highway Act, 1862, as the fund out of which the supplies for maintaining the roads have to come, did not take away the former exemption which had been preserved by the Highway Act, 1835. The Queen v. Heath and others, 35 Law J. Eep. (n.s.) M. C. 113 ; 7 Best & S. 285 ; Law Eep. 1 Q. B. 218. (C) Eateabis Value and Principle of Assess- ment. (a) Portion of a railway. 27. — The rateable value of a portion of a rail- way, consisting of the net annual profits.from the traffic upon the portion rated, cannot be increased by any part of the profits earned by the same traffic upon other portions of the, line. Therefore the expenses of traffic over one portion of a line cannot be estimated according t:) a mileage proportion, formed by taking into account the increased profit and relative decrease in the cost of conveying the same traffic, with a large accession to it, upon other parts of the line. The Great Eastern Sail- way Company v. The Churchwardens and Overseers of the Parish of HaugUey, 35 Law J. Eep. (n.s.) RATES (C). M. C. 229 ; 7 Best & S, 624 ; Law Eep. 1 Q. B. 666. In rating a railway, an arbitrator took as the amount to be deducted in respect of the deprecia- tion of rolling stock the proportionate part- of a fund for renewing the stock when it would natu- rally be worn out : — Held, that this mode of calcu- lation was warranted by the terms of the Paro- chial Assessment Act, as the tenant of a railway might reasonably think that his tenancy would last over the time when it could legally be termi- nated. Ibid. 28. — Under the powers of an Act of Parlia- ment, a railway .was constructed from G to C, for the common purposes of the Great Western Com- pany and the Midland Company, each paying half the cost 7 on the completion of the line, the half nearest Gt became the sole property of the Midland Company, and the half nearest C the sole property of the Great Western Company. Each company was bound to keep its own half in repair, and supply the necessary staff of officials, &o. The line of railway was constructed for broad and narrow gauge traffic, with three rails on each line, and in practice the Great Western Company used the broad gauge, and the Midland Company the narrow. The part nearest C, belonging to the Great Western Company, passed through the re- spondent parish, and that company were rated to the poor-rate in respect of their occupation. No toll was paid by either company in respect of the light of running over the part belonging to the other company: — Held, that the Great Western Company were rateable, and that the rate ought to be made upon the principle of assessing the profits made in the parish, enhanced by the right to run free over the half of the line belonging to the Mid- land Company. The Great Western Eailway Com- pany V. The Overseers of Badgworth, 36 Law J. Rep. (if.s.) M. C. 33 ; Law Bep. 2 Q. B. 251. 29. — A railway connected with and rentecl by another railway in a different parish cannot be rated at an increased amount, in respect of its con- tributive value in bringing traffic to the other line, but can only be rated upon its value within the rating parish. The Great Western Bailway Com- pany V. The Assessment Committee nf the Ponty- pridd Union and the Churchwardens and Overseers of the Parish of Uantrissant, 38 Law J. Rep. (n.s.) M. C. 93. The E V Bailway, the greater part of which was within the rating parish, supplied traffic to the South- Western Railway, which was beyond the parish. The South- Western Bailway was the pro- perty of the Great Western Railway, who were also occupiers of the E V Railway at a fixed rent : — Held, that, on the authority of The Great Eastern RaMway Company v. The Overseers of Hanghley, 35 Law J. Rep. (n.s.) M. C. 229 ; Law R»p. 1 Q. B. 666, the Great WesternRailway could not be rated as occupiers of the E V Railway at an increased amount in respect of its value as a feeder, and in suppljring traffic to other parts of their line. Ibid. (6) Net annual value : deductions. 30. — The net annual value of hereditaments 519 rated to the poor-rate is, \tg the Parochial Assess- ment Act, to be ascertained by the rent at which thn same would let from year to year, " free of all the usual tenant's rates and taxes," &e. By a local Act, the owners of small tenements were em- powered to compound for the poor-rate in respect of such tenements by the payment of one-half of such rate only:— Held, that the deduction for usual tenant's rates and taxes must be made at the full sum allowed for other similar property not m composition, and not according to the sum actually paid by way of composition. The Queen, on the prosecution of Dodd and. Southan, v The Overseers of Bilston, 35 Law J. Rep. (n s m C 97. r \ / ■ . 31.— A voluntary payment, by a landlord, to waterworks of water-rent for the supply of water to a hereditament occupied by his tenant, and rateable to the poor, is not a tenant's rate, or an expense necessary to maintiiin the premises in a state to command their probable annual rent, within the meaning of the Parochial Assessment Act 6 & 7 Will. 4. c. 96, s. 1, and ought not to be deducted from the gross estimated rental of the premises, in order to ascertain their net annual value under that Act. 7%e Queen v. 27ie Church- wardens and Overseers of the Township of Bilston, 35 Law J. Rep. (n.s.) M. C. 73 ; Law Eep. 1 Q. B. 1 8. " 32.— Where, by an arrangement between the la,ndlord and the tenant, the latter takes upon himself the cost of repairs, it is necessary, in ascertaining the rateable value of the premises, to consider this cost as added to the rent, and then to be deducted by the landlord, leaving the rent actually paid by the tenant as the amount on which the rate ought to be assessed. The Queen V. WeUs, 36 Law J. Bep. (n.s.) M. C. 609 ; 8 Best & S. 607 ; Law Bep. 2 Q. B. 542. In assessing farm buildings and corns-mills to the poor-rate, a deduction ought to be allowed in respect of the amount set aside by a prudent owner for the future renewal of the buildings and machinery. Ibid. (c) Canal rented by railway company. 33.— In pursuance of an Act of Parliament, the S U Bailways and Canal Company granted a lease in perpetuity of their undertaking to the L & N W Bailway Company, under the provi- sions of which a canal, part of their undertaking, was worked and managed by a joint committee in the name of the S U Bailways and Canal Company, and was worked by the L & N W Eailway Com- pany, and the L & N W- Bailway Company made up to the shareholders of the S U Bailways and Canal Company the deficiency in the earnings of their undertaking, in accordance with the guarantie in the lease of the payment of certain rents or sums of money in the nature of a rent : — Held, that the annual rent or sum of money re- ceived by the S U Bailways and Canal Company from the L & N W Bailway Company under the lease was not to be taken into account in deter- mining the rateable value of the canal. The Queen V. Lapley, Overseers of, ^-c, 9 Best & S. 568. 520 BATES (0), (E). (d) Wharves : payment of dues. 34. — The appellants were in the occupation of two wharves, at a yearly rent, as tenants under the trustees of the B docks. In respect of goods shipped from or upon the wharves, the appellants paid to the trustees a fixed sum, which by the Dock Act was authorised to be received in respect of all goods landed or loaded upon or from the wharf, in addition to the tonnage rates paid by the ships passing into or qut of the dock. No dues were charged on goods brought upon the wharves and not shipped into the dock : — Held, that the dues were paid in respect of the use of the wharves ; that in assessing the wharves to the poor-rate they were to be taken into account in ascertaining the rateable value, and that the appellants were liable to be rated in respect of them. The Queen v. Dow- lais Iron Compaviy, 10 Best & S. 208. (e) Tithe rentcharge : deduction for curate' s 35. — The vicar of three parishes, composing one benefice, appointed curates to perform the duties in two of the parishes, and himself per- formed the duties in the third : — Held, that he was not entitled to have deducted from the rate- able value of his tithe commutation rentcharges the stipends paid, or which must have been paid, the curates, as the maintenance of the rentcharges in no way depended upon the curates' stipends. The Queen, on the prosecution of John Charles Carwithen, v. The Inhabitants of Sherford and others, 36 Law J. Eep. (n.s.) M. C. 113 ; 8 Best & S. 590 ; Law Kep. 2 Q. B. 503. The case of The Queen v. The Mersey Docks, 11 H.L. Cas. 443 ; 35 Law J. Eep. (n.s.) M. C. 1, by laying down the rule that, in rating property according to the Parochial Assessment Act, 6 & 7 Will. 4. c. 96, it is not necessary that the occupa-, tiou should be beneficial to the occupier, if it yield a rent over and above the average annual expenses necessary to maintain the property in a state to command such rent — has, in effect, over- ruled The Queen v. Goodchild, El. B. & El. 1 ; 27 Law J. Eep. (n.s.) M. C. 233. Ibid. (/) Artificial watercourse for working mine. 36. — The proprietors of a lead mine obtained, iu consideratiop of annual payments, the right of diverting a natural spring Upon the land of an ac^oining proprietor, and of conveying the water over the land of intervening proprietors to iron pipes laid down near their own mine. This water was required for steam pumping-engines and other machinery used in working the mine : — Held, first, that there was sufficient evidence to shew that the mine-owners were so far occupiers of the land covered by the pipes and watercourse as to be rateable in respect of it ; secondly, that the rate- able value of this land was not its ordinary value for agricultural purposes, but the increased value which it had acquired from its use in working the mine, for that, although the mine itself was not rateable, the pipes and watercourse could in no respect be considered as part of it. The Tarlar- goch Mining Comjiany v. The Guardians of St. Asaph Union, 37 Law J. Eep., (n.s.) M. C. 149; 9 Best & S. 210 ; Law Eep. 3 Q. B. 478, 2'he King v. T%e Overseers of Bilston, 5 B. & C. 151, explained. (g) Lease of right of taking game. 37. — The owner of land occupied it himself, and leased to another the right of sporting and taking game thereon : — Held, that, in assessing the land to the relief of the poor, the value of the right of sporting and taking game ought not to be deducted in estimating the rateable value of the land. The decision in The Queen v. The Inhabitants of Thurlstane, 1 El. & El. 502 ; 28 Law J. Eep. (n.s.) M. C. 106, questioned. The Queen v. The Guar- dians of the Union of Battle, Sussex, and others, 36 Law J. Eep. (n.s.) M. C. 1 ; 8 Best & S. 12 Law Eep. 2 Q. B. 8. (D) To WHAT Parish rateable. 38. — There is no legal objection to the infer- ence that a hamlet or township once extended into two parishes, and afterwards became detached and- annexed to the one parish for ecclesiastical pur- poses, continuing to form part of the other parish for civil purposes. The Queen v. Watson, 37 Law J. Eep. (n.s.) M. C. 153 ; 9 Best & S. 219; Law Eep. 3 Q. B. 762. The hamlet of T had for a hundred years past, and for anything that appeared to the contrary before that time, been rated to the poor and high- way rates of the adjacent township of H, which maintained its own poor and highways separately, and together with another township formed the parish of H. On the other hand, the lands in T, from the earliest period, were tithable to the adja- cent parish of K, as being situate in that parish, and the occupiers were rated to and paid church- rates in that parish, and also Easter and other ecclesiastical dues, and never paid tithes, &c., to H : — Held, that there was no ground for disturb- ing the long-established usage of rating T to' the poor-rates of H, as it was impossible to say that this usage cauld not have had a legal origin from the tithes having been severed from T aild con- ferred on the parish of K, while T itself was associated with H as one township for rating pur- poses according to the Act, 13 & 14 Car. 2. c. 12. Ibid. (E) Valuation List : Duty of Oyebseebs. 39. — By the Union Assessment Committee Amendment Act, 1 864, 27 & 28 Vict. c. 39, sect. 1 , it is enacted — with regard to appeals against poor-rates made for any parish contained in any union to which the Union Assessment Committee Act, 1862, applies — that no person shall appeal to any Sessions against a poor-rate made in con- formity with the valuation list approved by the assessment committee, unless he shall have given to such committee notice of objection against the list, and shall have failed to obtain such relief in the matter as he deems just ; and which objec- tion, after notice given at any time in the manner RATES (F)— EECEIVING STOLEN GOODS (A), (C). 521 prescribed by the Act with respect to objections, the committee shall hear, with full power to call for and amend such list, although the same has been approved of, and no subsequent list has been transmitted to them, and, if they amend the same, shall give notice of such amendment to the over- seers, who shall thereupon alter their then current rate accordingly : — Held, that where an appeal has been made to the Sessions against a rate, after failure to obtain relief from the assessment com- mittee, it is necessary, before appealing against a second rate, to make a fresh application for relief to the assessment committee, although the list upon which the second rate is made contains precisely the same valuation of the appellant's property as that in the list which has been previously objected to. The Queen, on the prosecution of The Church- wardens and Overseers of St. Mary, Cardiff, v. The Great Western Railway Company, 38 Law J. Rep. (h.s.) M. C. 89; 10 Best & S. 318; Law Rep. 4 Q. B. 323. / (F) Appeal against. 40. — It is the duty of the overseers of a parish, under sect. 21 of the Union Assessment Commit- tee Act, 1862, to deposit the valuation list, after alteration by the assessment committee, in the place in which the rate-books are kept, and to give due notice thereof in the same manner as in the case of the original deposit of the valuation list, pursuant to sect. 17 of the Act. The Queen, V. The Overseers of Chorlton-on-Medlock, 35 Law J. Rep. (n.s.) M. C. 56. , Bond for collection of poor-rates. Princtpal and Surety, 7, 12.] Distress warrant to enforce rate. Justice of the Peace, 9.] [See [See RECEIVER. [See Practice in Eouitt (HH) ; Privy Council, 17; Probate (A) 2; Composition DjiED, 122.] RECEIVING STOLEN GOODS. (A) Nature of the Offence. (B) Partnership Goods. (C) Evidence of guilty knowledge. [Section 102 of the 24 & 26 Vict. c. 96, as to advertisements respecting stolen goods, amended. 33 & 34 Vict. c. 65.] (A) Nature of the Offence. 1. — The prisoner was convicted of feloniously receiving stolen goods under the following cir- cumstances : The goods were stolen, and sent by the thief in a parcel by railway, addressed to the prisoner. A policeman belonging to the railway company, from information he had received, ex- amined the parcel at the railway station at the place of its destination, and stopped it. It was Digest, 1865-70. called for by one of the thieves on the day of its arrival, and refused to him. A porter of the com- pany, the next day, by the direction of the police- man, took it to a house which the thief who had called for it designated, and it was there received by the prisoner : — Held, by Martin, B., Keating, J. and Lush, J., that the conviction was wrong, as the goods had ceased to be stolen goods, vrithin the statute, at the time of the receipt by thepri- soner — Erie, C.J. and Mellor, J. dissentientibus. The Queeny. Fanny Schmidt, 36 Law J. Rep. (n.s.) M. C. 94; Law Rep. 1 C. C. R. 15. 2. — Two or more persons may be indicted jointly for receiving stolen property knowing it to have been stolen, though each successively received the whole of the same at different times ; and it makes no difference whether the receipt was direct from the felon or from an, intermediate person. The Queen v. Eeardon and Bloor, 35 Law J. Rep. (n.s.) M. C. 171 ; Law Rep. 1 C. C. R. 31. 3. — Two prisoners were convicted under a count charging them with receiving goods knowing them to have been stolen upon proof that they were present aiding and abetting a third receiver who was found in actual possession of the box contain- ing the goods, but the two former never had manual possession of the box : — Held, that the conviction was right. The Queen v. Rogers, 37 Law J. Rep. (N.s.) M. C. 83 ; Law Rep. 1 C. C. R. 136. (B) Partnership Goods. 4.— The effect of the 31 & 32 Vict. c. 116, sect. 1, by which a partner or joint owner in goods is rendered liable to be convicted of stealing goods, in respect of which he is so jointly interested, is not to render the receiver of such goods, knowing the same to have been stolen by such partner, liable to be convicted as such receiver under the 24 & 26 Vict. c. 96, sect. 91. The Queeny. Smith, 39 Law J. Rep. (n.s.) M. C. 112; Law Rep. 1 C. 0. R. 266. A and B were in partnership, and B, in fraud of the partnership, disposed of the goods of the firm to tfie prisoner, who knowingly-received the same. The prisoner was indicted and convicted under the 24 & 25 Vict. c. 96, sect. 91 -.—Held, that the con- viction could not be supported. Ibid. Semble — That the prisoner might have been in- dicted and convicted as an accessory to or after the felony, either at common law or under 24 & 26 Vict. c. 94, sects. 1, 3. Ibid. (C) Evidence of guilty ijnowledge. 5. — On an indictment for receiving goods, knowing them to be stolen, the only evidence in support was that of the thief, except the fact that the goods were found on the premises of the pri- soner:— Held, per Pollock, C.B., this was not sufficient confirmatory evidence to justify a con- viction. The Queen v. Pratt, 4 Fost. & Fin. N. Pl Gas. 315. [And see Larceny, 5.] Q__By the Habitual Criminals Act, 1869, 32 & 33 Vict. e. 99, sect. 11, where any person who 3X 622 REGISTRATION OF DEEDS, WILLS, AND INCUMBRANCES -REVENUE. has been previously convicted of any offence speci- fied in the first schedule hereto, and involving fraud and dishonesty, is found in the possession of stolen goods, evidence of such previous convic- tion shall be admissible as evidence of his know- ledge that such goods have been stolen ; and in any proceedings that may be taken against him as receiver of stolen goods, or, &c., proof may be given of his previous conviction before evidence is given of his having been found in possession of such stolen goods; provided that not less than seven days' notice shall be given to such person that proof is intended to be given of his previous conviction, and that he will be deemed to , have known such goods to have been stolen until he has proved the contrary. On the trial of a receiver of stolen goods, a notice was proved to have been duly given him in the above form, and a previous conviction for larceny was proved against him, and such evidence was relied on as proof of guilty knowledge. The prisoner" offered no evidence to rebut such evidence of guilty knowledge : — Held, that in the absence of any enactment in the statute that he should be deemed to have known such goods to have been stolen until he proved the contrary, the notice could not have the effect it purported to have, and that such receiver was not called upon to prove that he had not such guilty knowledge. The Queen v. Davis, 39 Law J. Rep. (n.s.) M. C. 135 ; Law Rep. 1 C. C. R. 272. REGISTRATION OF DEEDS, WILLS, AND INCUMBRANCES. 1. — Constructive notice of a prior unregistered incumbrance affecting lands in Middlesex is as effectual as actual notice. Wormald v. Maitland, 35 Law J. Rep. (n.s.) Chanc. 69. A registered marriage settlement of leaseholds in Middlesex postponed to an equitable mortgage of the same property by deposit prior in date, but registered subsequently to the settlement ; the trustees of the settlement being held to have had constructive notice of the equitable mortgage in consequence of their not having inquired for the title deeds when the abstract was delivered to them. Ibid. The equitable mortgagee held entitled to tack to his security advances made subsequently to the date and registration of the settlement, of which he had no notice at the time of such advances. Ibid. Observations on the impropriety of not examin- ing title deeds with the abstract on the occasion of marriage settlements in the same manner as on ordinarypurchases for value. Ibid. 2. — Under the East Riding Registration Act, 6 Ann.c. 35, unless a will be registered within six months from the testator's death, the registration is not valid, as against prior purchasers or mort- gagees, claiming under the heirs, except where the case falls under the 15th section. Chadvnck v. Turner, 35 Law J. Rep. (n.s.) Chanc. 319 ; Law Rep, 1 Chanc. 310. A died in 1 R54. equitably entitled in fee to land in Hull, and her heir took possession. In 1861 a will of A, dealing with the land, was found ; but the benefieiaires under the will and the heir were not informed of the fact. In 1 862 the heir mort- gaged the land, and the mortgage was registered in the East Riding Registry. In 1863 a codicil was discovered by the person who had previously discovered the will, and who took benefits under the codicil ; the will and codicil were then made known, and were registered in 1864 : — Held, af- firming the decision of the Master of the Rolls, that under the East Riding Registration Act, 6 Ann. c. 35, the mortgagee had priority over the devisees. Ibid. Eegistration of compmitjon deed. [See Composition Deed, 61-58.] Registration of transfer of shares. [See Company (E) 78-107.] Eegistration of shareholders : rectification of register. [See Company (E) 186- 193.] Eegistration of mortgage of ships. [See Shipplnq (M) 4.] RELEASE. Of power of appointment. [See Power, 37.] of dibt : adequacy of consideration. [See Debtor anu Cbeditoe, 7.] Flea uf release in Equity. [See Pi^gadino IN Equity, 13.] Flea of release with condition subsequent. [See Pleading at Law, 7.] REMOTENESS. [See Will, Consteuction (S) ; Poweb, 26.] RESTITUTION. Of conjugal rights. [See Divorce, 24 26.] Of property. [See Jurisdiction at Law, 2.] REVENUE. (A) Customs and Excise. (B) Income-tax. (C) Legacy and Succession Duty, (D) Duties on Railway Fares. (E) Land-tax. (F) Stamp Duties. [31 Geo. 2. c. 32, ss. 2, 3, 4, 6,7,10,11,12.13; 32 Geo. 2. c. 24, ss. 1, 2, 3, 4, 5, 6, 7, 8 ; and 69 Geo. 3. c. 32, s. 3 : sections repealed. 30 & 31 Vict c. 90, s. 7.] [6 Geo. 4. c. 81, s. 25 ; section amended. 30 & 31 Vict, c 90, s. 9.] [26 & 25 Vict. c. 91, s. 3, amended. 31 & 32 Vict. c. 124, s. 5.] [The meaning of the word " spirits," in 1 & 2 REVENUE (A), (D). 623 Will. 4. c. 65, ss. 17, 18, defined. 31 & 32 Vict. c. 124, s. 6.] [18 & 19 Vict. c. 38, s. 8, amended. 31 & 32 Viet. 0. 124, s. 4.] [23 & 24 Viet. c. 114, is. 84, amended. 31 & 32 Vict.c. 124, s. 3.] (A) Customs and Excise. 1. — It is an offence, under section 6 of the Cus- toms Act, 22 & 23 Vict. c. 37, to cause to be im- ported goods of one denomination -concealed in packages of -goods of any other denomination, though the goods be such as are not subject to any duty on importation. Budenharg v. Roberts, 35 Law J. Eep. (n.s.) M. C. 236 ; H. & E. 836 ; Law Eep. 2 C. P. 292. The 6th section imposes a penalty on any person who " shall cause to be imported goods of one de- nomination concealed in packages of goods of any other denomination," and the 8th section enacts, that the word " importer " in any Act relating to the Customs is "to apply to and include any owner or other person for the time being possessed of or beneficially interested in any goods im- ported " : — Held, that the words " cause to be im- ported " in the 6th section are not to be interpreted according to the meaning given to the word " im- porter " in the 8th section, which includes many persons who would not come within the 6th sect. Ibid. 2. — A magistrate has jurisdiction to impose the penalty of lOOZ. on every person found on board any ship or boat liable to forfeiture for having on board any of the articles here prohibited ; although the ship or boat may not have been condemned as forfeited.' The magistrate is to inquire whether the ship or boat was liable to forfeiture. Whcale V. Brown, 4 Hurl. & C. 704. (B) Inoojie-tax. 3. — Where a debtor assigned to trustees a fund in Court, upon trust to pay a fixed sum yearly to his creditors in payment of their debts pro ratA, with interest till payment : — Held, the trustees were entitled to deduct income-tax on the pay- ments in respect of interest. Crar.e v. KUpin, 37 Law J. Eep. (n.s.) Chanc. 913; Law Eep. 6 Eq. 334. (C) Legacy and Succession Duty. [See Legacy Duty.] (D) Duties on Eailway Fares. 4, — The Midland Eailway Company from Bir- mingham to Gloucester have running powers over a great portion of the line belonging to the Great Wgstern Eailway Company, forming a loop-line with their own, but their powers extend only to the carriage of passengers over any portion of the loop-line who travel also over some portion of the Midland main line. The Midland Company, how- ever ran one train daily which stopped at every station on the loop-line. The fares paid by pas- sengers getting into the train at stations on the loop-line were received by the ofScials of the Great Western Eailway Company, and they ac- counted for them to the Midland Company, but refused to render accounts of such receipts to the Commissioners of Stamps and Taxes, or to pay upon them the duty prescribed by the statute 5 & 6 Vict. c. 79, ou the ground that these fares were not received by them for carrying the pas- sengers, inasmuch as they were not the carrying company, the train, engine, carriages, &c. belong- ing to the Midland Company. Neither did they receive the fares from any other company by way of toll, but in a manner wholly uiprovided for by the Act : — Held, affirming the decision of the Court of Exchequer, 31 Law J. Eep (n.s.) Ex. 218, that it was unimportant for whom the Great Western Company received the fares, they being the hands that received them ; and that the re- ceipts, being in respect of passenger traffic, they must be accounted for, and the duty paid to Her Majesty. The Great Western Eailway Company v. The Attorney General, 35 Law J. Rep. (n.s.) Ex. 123; Law Eep. 1 E. & L App. 1. By the 7 & 8 Vict. c. 85, it was enacted (section 6), that on and after the several days thereinafter specified, " all passenger railway companies shall, by means of one train at the least to travel along their railway from one end to the other of each trunk, branch or junction line belonging to or leased by them, so long as they shall continue to carry other passengers over such trunk, branch or junction line, once at the least each way on every week day except Christmas Day and Good Friday (such exception not to extend to Scotland), pro- vide for the conveyance of third-class passengers to and from the terminal and other ordinary pas- senger stations of the railway, under the obliga- tions contained in their several Acts of Parlia- ment and with the immunities applicable by law to carriers of passengers by railway, and also under the following conditions": one of such conditions being, that " such train shall start at an hour to be from time to time fixed by the di- rectors, subject to the approval of the Lords of the Committee of Privy Council for Trade and Plantations"; and another, that "such train shall, if required, take up and set down passen- gers at every passenger station which it shall pass on the line." The train in question ran over all the railway over which the Midland Company carried passengers, and stopped, at every station, and started at an hour which had been at one time approved of by the Board of Trade ; but as the Midland Company could not set down at any station on the loop-line a passenger who had been also taken up at another station on the loop-line, the Board of Trade had since withdrawn their ap- proval : — Held, affirming the decision of the Court of Exchequer, that inasmuch as the Midland Company in running their trains from Birmingham into Gloucester had not the power of stopping at every station on the loop-line for the purposes of setting down passengers not taken up on the main line, they could not comply with the latter of the above conditions ; and that they could not 3x2 624 EEVEESION— REWARD. bring themselves within the former of such con- ditions, as the Board of Trade had refused to give them their sanction, and so no exemption could be claimed, under the 7 & 8 Vict. u. 86, from the duties imposed by the 8 & 6 Vict. c. 79. Ibid. (E) Land-tax. [See that title.] (F) Stamp Duties. [See Stamp.] (6) Rkobate anb Administration Duty. [See Probate (N).] REVERSION. [No purchase made bon& fide of reversionary interests to be set aside merely on the ground of under value. 31 & 32 Vict. c. 4.] 1. — In a suit to set aside a sale by private con- tract of a reversion : — Held, that the hjghest price bid for it upon a previous attempt to sell by auction was a fair test of its market value. Lord v, Jeff- kins, 35 Beav. 7. As to the difficulty in ascertaining the value of a reversion which is contingent on the death of a lady without issue. Whether such (issue risks) can now be insured against, quaere. Ibid. In ascertaining the market value of a reversion, the fact of its being the subject of a Chancery suit, even though it does not affect the right to it, must be taken into consideration. Long delay in filing a bill to set aside the sale of a reversion is not to be disregarded. Ibid. 2. — A mortgage of a reversionary interest stands in the same position as a sale, and therefore to support the transaction of mortgagee must shew that he gave full value. Benyun v. Fitch, 36 Beav. 570. A mortgage of a rRversionary interestj depend- ing on a gentleman dying without issue male, set aside for inadequacy of consideration, although the risk was such as not to be susceptible of ac- curate valuation. Ibid. Loans were made to a young man on his bills at exorbitant interest, and when they were about to become due, he mortgaged his reversionary interest to secure the amount and a further advance. The mortgage being set aside for inadequacy : — Held, that the mortgagee was entitled to the full amount of the bills and not simply to the money actually advanced on them. Ibid. On setting aside the sale of a reversion for in- adequacy after four years, the purchaser is not entitled to any allowance for the risk he has run in the meantime. Ibid. On setting aside the purchase of a reversion for inadequacy, the deed stands as a security for the money actually due, and if it be not paid, the bill stands dismissed, which is eqxiiv.ilent to a fore- closure. Ibid. 3. — The policy of the law with regard to catch- ing bargains with heirs, reversioners and expectants is questionable ; and the principle is not to be ex- tended by analogy. Webster v. Cook, 36 Law J. Rep. (n.s.) Chanc. 763 ; Law Rep. 2 Chanc. S42. Therefore, a tenant for life in possession, whose estate is subject to heavy jointures, cannot be treated as a reversioner within the rule which throws upon the purchaser of a reversion the onus of proving that full value was paid. Ibid. A W, being tenant for life, subject to a jointure rentcharge of 1,000Z., another of 500^., a life annuity of 1001., and mortgage incumbrances amounting to 23,000^., the interest upon which, together with the annual payments of the jointures and annuity, left him a present income of about 215^., by deed, in consideration of 1,000Z., charged his life estate with the payment of 3,300^. within three months after the death of the l,000i joint- ress, with interest in the meantime at 11. per cent, per annum until her death, and 10^. per cent, per annum afterwards, subject to a proviso that if 1,600?., with all interest and expenses, were paid within a year from the date of the deed, the mort- gagee would accept the same in full satisfaction. Afterwards, by a memorandum, A W further charged his life estate with the payment of 400?. and interest at 51. per cent, per month. A W, before the expiration of a year from the date of the deed, filed his bill for redemption ; and the Master of the Rolls, treating the bill as a bill to set aside a sale of a reversion, on the ground of inadequacy of value, directed that the deed should stand as a security for 1,000?. and interest at 51. per cent, per annum, and refused any relief as to the memorandum. But, upon appeal to the Lord Chancellor, the decree was varied, and an order was made for redemption on payment of 1,500?. with interest at 8?. per cent, per annum, and 400?. with interest at 6?. per cent, per month, until pay- ment. Ibid. REVIVOR. [See Pbactice in Eotjitt (II).] REWARD. The shop of the defendant, a jeweller, having been burglariously broken into, and a number of watches, among other property, stolen therefrom, he oifered, by means of a handbill, a reward in these terms : " A reward of 250?. will be given to any person who will give such information as shaU lead to the apprehension and conviction of the thief or thieves, &c." The handbill contained a description of watches and other property. Shortly afterwards, one R brought a watch to the plaintiff, a watchmaker, and left it to be repaired, saying that he had another which he wanted to sell. The plaintiff recognised the watch as one of those which, according to the handbill, had been stolen from the defendant ; he gave information to the defendant, and the police went to his shop, where they apprehended R, with another of the stolen watches in his possession. While in custody R gave some information to the police that the RIVER— SALE (A), 626 burglars were to be found at an eol-pie shop in the Whiteehapel Road. A watcli was set by the police upon the shop, and two persons were ap- prehended with a quantity of the stolen property in their possession. These persons, with another, were tried and convicted of the burglary, R being convicted at the same time of feloniously receiving the two watches, knowing them to have been stolen. The jury returned a verdict for the plaintiif for 2501., finding that the thieves were found and the property recovered in consequence of R's informa- tion. A rule had been obtained for a new trial, on the ground that the Judge ought to have told the jury that the evidence was too remote, as there was nothing to shew that the information given by R was given at the instance of the plaintiflF, or so as to entitle the plaintiflF to say that he supplied information which led to the conviction and ap- prehension of the thieves. The Court of Queen's Bench discharged this rule, 38 Law J. Rep. (n.s.) Q. B. 179 ; 6 Best & S. 871 ; Law Rep. 1 Q,. B. 641 : — Held, upon appeal, that the judgment of the Court of Queen's Bench was right. Tamer v. WalJcer, 36 Law J. Rep. (n.s.) Q. B. 112 ; 8 Best & S. 314 ; Law Rep. 2 Q. B. 301. RIVER. Rvparian owners. [See Navigation, 1 ; Watercourse, 1.] RISK. [See Marine Insurance (H).] ROGUE. [See Vagabond.] ROLTS ACT. [See Jurisdiction ik Equity (E) (a).] SALE. [See Auction; Frauds, Statute of; Contract; Damages ; Market.] (A) Of Goods. (a) Sale by sample. ib) Sale of specific goods : warranty. (c) Warranty of title : evidence. (d) Condition precedent. (e) Transfer and vesting of property. If) Cargo. (g) Evidence. (A) Of Goods. (a) Sale by sample. 1. — The plaintiff .sold to the defendants"128 bales of cotton, under the following contract : " Sold ... the following cotton, ^JF 128 bales, at ibd. per lb. (expected to arrive in London, per Cheviot, from Madras), tlw cotton guaranteed equal to sealed sample in our possession ; should the quality prove inferior to the guarantie a fair allowance to be made." The sample contained long-staple Salem cotton. The Cheviot arrived with 128 bales from Madras, marked as above, but they contained "Western Madras cotton. At the time of the contract there were diiferent kinds of Madras cotton known in the market, and of which Salem and Western were two. Each kind was compared with a standard sample, and divided into divisions under the terms " ordinary," " low middling," " middling fair," &c. Western Madras was inferior to long-staple Salem, and required a diflferent machinery for its manufacture : — Held, affirming the decision of the Court of Common Pleas, 36 Law J. Rep. (n.s.) C. P. 124, that the allowance clause referred to quality and not to kind, and that Western Madras being cotton of » different kind from what the defendants had con- tracted to buy, the defendants were entitled to reject it. Azemar v. Casella and another, 36 Law J.' Rep. (n.s.) C. p. 263 ; Law Rep. 2 C. P. 677. 2. — Where the contract is for merchantable goods, and the sale is by seller's sample, which represents to the buyer a merchantable article, and discloses no defect, and the goods are accepted as according with the sample, there is still an implied warranty of their being merchantable in respect of all such matters as cannot be judged of by the sample, just as there would be if bulk had been inspected, and defects could not thereby be ascer- tained. Mody and others v. Gregson and others, 38 Law J. Rep. (n.s.) Ex. 12 ; Law Rep. 4 Ex. 49. (J) Sale of specific goods : warranty. 3. — The defendant bought, through P & R, his brokers, a quantity of wool, according to the fol- lowing sale note : "413 bales, to arrive ex Stige, or any vessel they may be transhipped in, and subject to the wool not being sold in New York before advice reaches the consignees to send the wool forward here. The wool to be guaranteed about similar to samples in P & R's possession, and if any dispute arises, it shall be decided by the selling brokers, whose decision shall be final ": — Held, that as the goods in question were specific and ascertained, the guarantee was merely a col- lateral engagement, and not a condition the breach of which gave the buyer a right to reject the goods, so that the brokers were justified in requiring the defendant to take the wool subject to a deduction in the price, and he was bound by their award. Heyworth and others v. Hutchinson, 36 Law J. Rep. (n.s.) Q. B. 270; Law Rep. 2 Q. B. 447. 4, — The plaintiffs, merchants at Liverpool, through their brokers, contracted to buy of the defendant a merchant in London, a specified num- ber of bales of Manilla hemp, marked in a parti- cular manner, which were expected to arrive in four several ships from Singapore. The price was paid, and the specified number of marked bales ar- rived and were delivered to the plaintiffs. A number 626 SALE (A). of the bales were found to be in such a state as to afford strong evidence that they had at some trnie, probably from a shipwreck when on the voyage from Manilla to Singapore, been wetted through with salt water, and had afterwards been unpacked, dried, and repacked in the bales which were after- wards shipped at Singapore. There are several qualities of " Manilla hemp," and if the hemp in the damaged bales had been in good condition it would have been what is called " fair current Manilla hemp." The plaintilFs sold it by auction as " Manilla hemp with all faults," and it realised about 7S per cent, of the price which similar hemp would have realised if undamaged. The defendant was not shewn to have had any knowledge of the state of the hemp when shipped at Singapore. ' An action having been brought to recover this diffe- rence of price, the learned Judge directed the jury that the question was, whether what was supplied was, when shipped at Singapore, such as to answer the description of reasonably merchantable Manilla hemp, that being the warranty which the law im- plied in such a contract, and that the question whether it was fairly and reasonably merchantable was a question of more or less, which the jury must determine. He also told the jury that if they found for the plaintiffs, the damages should be measured by the rate which the hemp was worth when it arrived, as compared with the rate which the same hemp would have realised if it had been shipped in the state in which it ought to have been shipped : — Held, that substantially this direction was correct, the rule being that in every contract to supply goods of a specified description which the buyer has no opportunity to inspect, the goods must not only in fact answer the specific description, but must also be saleable or merchantable under that description ; so that in this case the question for the jury was, whether this hemp delivered at Sin- gapore was merchantable or saleable in the market under the description of "Manilla hemp." Jones and another v. Just, 37 Law J. Eep. (n.s.) Q,. B. 89 ; 9 Best & S. 141 ; Law Eep. 3 Q. B. 197. Held, also, that the measure of damages was correctly laid down. Ibid. Held also, that the 5th section of 19 & 20 Vict. c. 60, which declares that a seller of goods without knowledge that they are defective or of bad quality, shall not be held to have warranted their " quality or sufiiciency," was not applicable to shew that the defendant could not be taken to have contracted that the hemp should be merchantable or saleable- in the market under the description of Manilla hemp. Ibid. Held, also, that the plaintiffs, not having had any opportunity of exercising any judgment of their own, the maxim of caveat emptor could not apply. Ibid. 5. — Upon a contract for a large quantity of whisky by merchants in Lelth with Scotch dis- tillers, to be according to one sample as to strength and flavour, and according to another as to colour, the object being to please the fancy of the natives of the West coast of Africa, the whisky was sup- plied, but proved to be unmerchantable, having been coloured with logwood, which had a startling though not actually injurious effect upon those who drank it, rendering their saliva or other se- cretions the colour of blood : — Held, the merchants were entitled to recover back the price, as by the above section there was an implied warranty that the whisky should be fit for the specified purpose. And that it was not a sufficient defence to shew that the colouring matter was not injurious to health. Observations on issues settled in unfit words ; and the direction of the Judge thereon. Macfarlane v. Taylor, Law Rep. 1 H. L. Se. 245. (c) Warranty of title : evidence. 6. — The defendant, who had purchased a boiler at a sale by auction under a distress for poor-rates, re-sold it to the plaintiffs, with notice of the cir- cumstances under which it had been bought by the defendant. The boiler was bedded in brickwork, and the defendant as well as the auctioneer told the plaintiffs that they might have fourteen days within which to remove it. The plaintifife having been pre- vented from removing the boiler by a third person, who claimed a right to it, sued the defendant for the loss they had sustained : — Held, by Bovill, C.J., and Montague Smith, J. (Willes, J., dissentiente), that there was no endence from the above facts of any warranty of title or undertaking by the defen- dant that the plaintiffs should have possession of the boiler, but only of a sale to the plaintifSi of such title to the boiler and right to take possession of it as the defendant had. Bagudey and another V. Hawley, 36 Law J. Eep. (n.s.) C. 'P. 328 ; Law Eep. 2 C. P. 626. id) Condition precedent. 7. — On the 21st of March the plaintiffs agreed to deliver to the defendants, and the defendants agreed to receive, 900 pieces of cloth, under a written contract which contained the words, " de- livering on April 17, complete 8th May." The plaintiffs did not deliver any portion of the goods on the 17th of April, and on the following day the defendants, without having made any demand for delivery, wrote to the plaintiffs that they rescinded' the contract. The plaintiffs tendered to the defen- dants on the 23rd of April, 26th of April, 30th of April and the 3rd of May, 260, 250, 250, and 150 pieces respectively, making in all 900 pieces, but the defendants refused to receive any of them. The plaintiffs then sold the goods, and having realised less than the contract price, sued the de- fendants for the difference : — Held, per Kelly, C.B. and Pigott, B., that delivery of a portion of the goods on the 17th of April was not essential, the contract being satisfied by delivery of the whole quantity between the 17th of April and the 8th of May, in such portions and at such intervals as were reasonable, having regard to the whole con- tract ; whao was reasonable being a question for the jury ; and, therefore, that the plaintiffs were entitled to recover. Coddington v. Palieologo, 36 Law J. Kep. (n.s.) Ex. 73 ; Law Eep. 2 Ex. 193. Held, contra, per Martin, B. and Bramwell, B., that the literal meaning of the contract was the correct one, and that the defendants were entitled to delivery on the 17 th of April of a reasonable SALE (A)-SALMON FISHEEY ACT (A). 627 portion of the goods, having reference to the entire bulk to be delivered and the time allowed for de- livery; what was a reasonable quantity being a question for the jury ; and, therefore, that the plaintiffs were not entitled to recover. Ibid. 8. — 'In a contract to sell 500 bales of ci tton, to arrive in Liverpool, per ship or ships, from Cal- cutta, there was the following stipulation : " The cotton to be taken from the quay " : — Held, on appeal from the Court of Common Pleas, 34 Law J. Eep. (n.s.) C. p. 1 55, that this stipulation was an independent stipulation for the seller's benefit, and not a condition precedent which the purchaser had a right to insist on being performed. Ndll and another v. Whitworth and others, 35 Law J. Eep. (n.s.) C. p. 304 ; H. & R 832 ; Law Eep. 1 C. P. 684. («) Transfer and vesting of property/. 9. — The plaintiff at a fair orally contracted to sell to defendant, at a given price, two pockets of hops, which were on the spot, and there inspected and approved of by the defendant, and also two other pockets by sample, which were in a ware- house in London. Defendant took away with him the first two pcckets, but the others were to be forwarded to him subsequently. Plaintiff selected two out of the three pockets he had there, and had them marked by the warehousekeeper, "to wait the buyer's order," and gave the name of the buyer (defendant) ; but no alteration was made in the warehouse books, and plaintiff continued liable for the rent. Plaintiff afterwards sent defendant an invoice with the numbers, weight, and prices of the two pockets delivered, and also of the two so set apart. Defendant refused to receive the last two pockets, but paid for the others. In an action for goods bargained and sold : — Held, there was no evidence for a jury to find that the appropria- tion of the two pockets in the warehouse was either originally authorised or subsequently as- sented to by the buyer, and, consequently, the property in them did not pass by the contract. Jenncr v. Smith, Law Eep. 4 C. P. 270. 10. — A sold to B a quantity of bricks for a specified sum, the sale being to indemnify B against sums he had paid, and had contracted to pay for A exceeding the value of the bricks. A gave a delivery order for the bricks, and on B's agent going with such order to A's brickfield, he was shown a clump of bricks then ready for de- livery, another clump then burning, and a further one in course of formation, the bricks for which were only sunburnt ; and he was told that they should all be held for B, and delivered according to his order, after a distress for rent, which was then on the brickfield, had been satisfied. The distress remained for some time until A became bankrupt, when a portion of the bricks was sold to satisfy the distress, and the remainder, which was less than the quantity sold to him, was then taken possession of by B : — Held, that there had been a sufficient appropriation of the bricks to pass the property in them to B before A's bank- ruptcy. Young V. Matthews, 36 Law J. Eep. (n.s.) 61 ; Law Eep. 2 C. P. 127. (/) Cargo- 11. — In a contract to deliver at a port to be named by the purchaser, " a small cargo of about 60 fathoms of lathwood," the word " cargo '' means an entire shipload ; and therefore the purchaser is not bound to accept 60 fathoms, measured and set apart for him by the settler's agent at the port named, out of a shipload containing 83 fathoms of lathwood :— So held by Kelly, C.B. and Cleasby, B. ; dissentiente, Martin, B. Krenger and another V. Blanck, 39 Law J. Eep. (n.s.) Ex. 160; Law Eop. 5 Ex. 179. Cargo expected to arrive hy a particular ship. [See Contract, 8, 10.] 12. — The plaintiff brought his action for goods supplied in 1866 to a mining company conducted on the cost-book principle, of which company the defendant was a shareholder. The last change of partners was in December, 1865. To prove his claim, the plaintiff proved an order by the purser to supply goods, gave general evidence of sup- ply, and put in evidence accounts specifying the amount supplied, submitted by the purser to and passed by the managing committee of the company. It appeared also that payments had been made in 1866, which the plaintiff had appro- priated to a debt incurred before December, 1865 : Held, first, that there was evidence of the amount supplied ; secondly, that the plaintiif was justified in his appropriation. Geake v. Jackson, 36 Law J. Eep. (n.s.) C. P. 108. SALMON FISHEEY ACT. (A) Limits or District. (B) Fishing Weir. (C) Fishery Miix-dam. (D) Fixed Engines : Immemorial Usage. (E) Instruments for catching Salmon. (F) Appeal : Costs. [26 & 26 Vict. c. 97, 26 & 27 Vict. c. 60, and 27 & 28 Vict. c. 118, amended. 31 & 32 Vict. c. 123.] " [Powers of water bailiff, &c. under 7 & 8 Vict. c. 95, extended. 31 & 32 Vict. c. 123, s. 25.] [25 & 26 Vict. c. 97, s. 13, amended. 31 & 32 Vict. c. 12S, s. 16.] [26 & 26 Vict. c. 97, s. 22, partially repealed, and s. 25 repealed. 31 & 32 Vict. c. 123, s. 42.] (A) Limits oe District. 1. — When the Justices in Quarter Sessions for a county apply, under the 28 & 29 Vict. c. 121. s. 4, to a Secretary of State to form into a fishery dis- trict or districts all or any of the salmon rivers lying wholly or partly within their county, it is for such Secretary of State to fix by his certificate the limits of the district which he shall form in accord- ance with such request, and those limits need not be the same'as those which had been intended by. 528 SALMON FISHERY ACT (B). the Sessions. The Queen v. Sir George Grey, Bart., 35 Law J. Rep. (n.s.) Q. B. 171 ; Law Rep. 1 Q. B. 469. (B) Fishing Weib. 2. — The appellant was the owner of land on the right bank of the river T, which was not navigable in that part. Opposite to his land and on the same side of the river, at a distance of about fifteen feet, there were two small islands belonging to him separated from each other by a narrow interval. At the upper extremity of the upper of these islands there had been from time immemorial cer- tain fenders, consisting of wooden bars and shut- ters, by means of which the flow nf water down the stream, between the islands and the right bank, fifteen feet in width, could be stopped at the plea- sure of the appellant. When the shutters were not let down so as to stop the water, fish were pre- vented from passing up by means of a grating. Lower down the side or part of the main stream a wooden apparatus was fixed, which was known as " the needles," and which consisted of certain wooden spars fixed in the bed of the river in the shape of the letter V, having its apex pointing up stream, and having an opening at the apex through which salmon could pass. Having passed through, they could not find their way back, neither were they able to pass the grating above. They became thus inclosed in the space between the grating and the needles ; and by letting down the shutters, the flow of water being stopped, they could be easily taken. About sixty or seventy years before the making of the orders hereinafter mentioned, the two now existing islands formed only one ; but an alteration was made by the predecessor of the appellant by making an opening through the island so as to allow the water of the river to pass through, and thus the two islands were formed. At this open- ing similar fenders were placed, and another set of similar needles were fixed lower down the stream at a spot between the right bank and the lower of the two islands. The area of the old fishing-weir was thus enlarged, and the fishing-weir itself was made more efficient. By reason of the opening so made in the island a considerable portion of the water of the river flowed through, and thus became lost to the owner of a mill situated lower down the main stream, so that when the river was low the working of the mill was at times interfered with ; at such times the mill-owner was accustomed to call upon the appellant to put down the fenders at the new opening so as to shut back the water, or to shut them down himself, and such proceedings were always acquiesced in by the appellant. The Special Commissioners for English Fisheries decided that the lower fenders and needles were illegal, and must be shut up and removed respec- tively, and that although the upper fenders and needles might legally be used by the appellant as a fishing-weir, he was bound to make and maintain permanently a " free gap," as provided for by the 12th section of the Salmon Fishery Act, 1861. Upon appeal against these orders, — Held, first, that the apparatus of fenders and needles used together with the space inclosed between them was a fishing-weir within the meaning of file Salmon Fishery Acts, 1861 and 1865; secondly, that, although the provision in Magna Charta prohibit- ting the putting down of weirs in rivers is general, that generality is restrained by the statutes 25 Edw. 3, 45 Edw. 3, 1 Hen. 4. e. 12, 4 Hen. 4. c. 12, and 12 Edw. 4. c. 7, and therefore there may be fishing-weirs in non-navignble rivers, of which the easement has been acquired since the date of the statule 12 Edw. 4. c. 7 ; thirdly, that a right to such fishing-weirs in private waters may be acquired by grant from other riparian owners, or by enjoyment, or by any other means by which such rights may be constituted ; fourthly, that a qualified easement, as to use the weir for fishing purposes, when the whole body of water was not wanted for the use of the mill, may be acquired by user for the time required to conffer easements in respect of water ; fifthly, that the fishing-weir having existed for so long a time, could not be said to be illegal in consequence of the alteration being made by cutting through the island, and by erect- ing the lower fenders and needles ; sixthly, that the stream fifteen feet wide, between the right bank and the islands, was not such a stream as is intended by section 27 of the Salmon Fishery Act, 1861, so as to render it necessary that a free gap should be made and maintained in the lower fen- ders and needles, as provided in the 12th section. Itolle V. Whyte, 37 Law J. Rep. (n.s.)Q. B. 105 ; 8 Best & S. 116 ; Law Rep. 3 Q. B. 286. 3. — The English Fishery Commissioners, acting on the authority oiEoUe\. Whyte, the last case, made an order declaring to be legal, subject to certain alte- rations as to the pass and hecks, a salmon fishing coop or trap in a weir which was built in that part of a river which was not navigable. The weir was built diagonally across the whole river, from bank to bank, and before 1861 there was no gap or aperture to permit fish to pass up or down the river during the fishing season. The coop was created between 1741 and 1751, and there was evi- dence that for sixty years past, and as far back as living memory could extend, it had been used in substantially the same manner as it was in 1861 : — Held, affirining Eolle v. Whyte, the last case, that such order was rightly made by the Commis- sioners. That the provisions in Magna Charta and the other early statutes to 12 Edw. 4. c. 7, prohibiting weirs, relate to navigable rivers only, and that the use of the weir in question was not shewn to have been unlawful by force of any statute pripr to 1861. That as the coop was not in a public navigable river it could not, independently of any statute, have been treated as a public nuisance, although erected without any gap or aperture in the weir to allow fish to pass. And lastly, that there was evidence of enjoy- ment to shew that the Commissioners might and ought to find the existence of the right to the coop, by grant from all the proprietors whose interests could be affected, so that the coop might be con- sidered as lawfully in use at the time "of the SALMON FISHERY ACT (C), (E). 529 paiaing of the Salmon Fishery Act, 1861, 24 & 25 Viet. c. 109, by virtue of a grant within the mean- ing of the 12th section of that Act. Lord Lecon- fidd and others v. Bhrl of Lonsdale, 39 Law J. Rep. (N.S.) G. P. 305 ; Law Rep. 6 C. P. 657. Semble — A claim to such coop is within the Pre- scription Act, 2 & 3 Will. 4. c. 71. Ibid. (C) FisHERT Mill-dam. 4. — The appellants were the owners of a mill- dam on the river R, in connection with a mill, and were either the owners or the occupiers of the bank on both sides of the river. The dam was situate above the mill, and consisted of stonework, with planks upon the top of it, and a baulk made of timber, which could be raised at pleasure. By means of this dam, the water was penned up so as to provide a supply for the mill, and while the baulk was down in its position no salmon were able to jump over it so as to pass up the river to the spawning beds, which were above the dam, for the four driest months of the year. AVhen the baulk was in that position, the water was sent down to the mill, so that the salmon could not pass up the bed of the river to the dam. There were inequalities in the bed of the river below the dam forming pools, in which the salmon were left when the water flowed away below the dam, and the appellants caught them for their own pleasure, though not for sale. The baulk was usually raised at night and during floods: — Held, that this dam was not a " fishing mill-dam " as defined in sect. 4 of the Act of 1861, as it did not appear that it was used or intended to be used partly for the purpose of catching or facilitating the catching of fish, and therefore that the Commissioners of Fisheries had no jurisdiction under sect. 44 of the Act of 1865 to order it to be rendered incapable of catching fish. Gamett and others v. Backhouse, 37 Law J. Rep. (n.s.) Q. B. 1 ; 8 Best & S. 490 ; Law Rep. 3 Q. B. 30. Held, by Lush, J., that the dam might have been abated if the 1 Geo. 1. stat. 2, c. 18, sect. 14, repealed by the Act of 1861, bad been still in force. Ibid. Semble — That the appellants were liable, under sect. 12 of the Act of 1861, to penalties in respect of the salmon caught by them in the pools below their dam. Ibid. , (B) Fixed Enoinbs : Immemorial Usage. 6. — The appellant claimed the right to use cer- tain putchers and stop-nets, for the purpose of catching salmon, at H P and H C, in the river Severn, in the inanor of A. The manor of A once formed part of the great manor of B, within which putchers and stop-nets had been used from time immemorial. The manor of A had by a feoffment dated the 20th of November, 1610, been conveyed, by the owner of the manor of B, to the predecessor of the appellant, and the lands were described as "all that the manor of A, with its appurtenances, and all that free fishing and several fishing in the Hver Severn, over against and so far as the manor, parish, or village of Arlingham extends, Digest, 1865-70. and also all those the liberties and franchises of free fishing, &c." The putchers and stop-nets were used between high and low water mark where the Severn is a navigable river. It was proved that at H P putchers and stop-nets had been in use for forty-five years previous to the year 1861, and that at H C putchers had been used for twenty years previous to that year. The Commissioners of English Fisheries ordered that the putchers and stop-nets should be removed, holding that they were not shewn to be modes of fishing lawfully exercised at the time of the passing of the Salmon Fishery Act, 1861, by virtue of any grant, or charter, or immemorial usage, as provided by the 11th section of that Act: — Held, that, although the Commissioners might have found, that the engines had been used from time immemorial, they were not bound upon the evidence to do so, and therefore that they were justified in making their order. Holford v. George, 37 Law J. Rep. (n.s.) Q. B. 186 ; 9 Best& S. 815 ; Law Rep. 3 Q. B. 639. Held, also, that the stop-nets used in the man- ner stated in the case were rendered illegal by the provisions of the statute 2 Hen. 6. c. 15. Ibid. 6. — R claimed before the Special Commis- sioners for English Fisheries, under the English Fishery Acts, 1861, 1866, 24 & 25 Vict. e. 109, and 28 & 29 Vict. c. 121, to be entitled to use as privileged fixed engines certain baulks or stake- nets in the estuary of a tidal navigable river, and within the limits of a manor of which R was lord ; and in support of his claim he produced ancient grants and charters belonging to the manor, in which allusion was made to a right of fishing, an inquisition of the manor describing the boundary to be the mid-stream of the said river, and evi- dence of old witnesses that during all living memory such baulks had been placed in the hol- lows of the sands within the manor, which hollows had from time to time been formed by the river as its channel varied. It appeared, however, that in 1844 the channel had been straitened and confined by a wall, erected under the authority of local Navigation Acts, and that since then the said baulks had been uniformly placed and used in the new hollows within the manor formed by the action of the tide on the wall, and were then nearer by 100 yards to the channel than they had ever been before 1844 : — Held, that under the cir- cumstances of the case, the right to privileged fixed engines was a mixed question of law and fact for the determination of the Commissioners, and that they were not bound, as a matter of law, to make a presumption in favour of the right and certainly not to make a presumption that the original right was to have reasonable engines in reasonable places according to the change of the bed of the river. Eawstorne v. Backhouse, 37 Law J. Rep. (n.s.) C. p. 26 ; Law Rep. 3 C. P. 67. (El Inbteoments fob catching Salmon. 7. — The bare use of the instruments and de- vices for catching salmon enumerated in section 36 of the Salmon Fishery Act, 186S, is sufficient, to render an unlicensed person using them liable to the penalty therein mentioned, without evidence 3 Y £30 SALVAGE.— SCIRE FACIAS. that they were used for the purpose of taking sal- mon, lyne v. Leonard, Lyne v. Fermell, 37 Law J. Eep. (n.s.) M. C. 55 ; 9 Best & S. 65 ; Law Kep.,3Q. B. 156. (F) Appeal : Costs. 8. — The Commissioners for executing the powers of the Salmon Fishery Act, 1865, 28 & 29 Vict. e;. 121, may proceed against the owner of any fishing- weir, &e., without the intervention of any prose- cutor; but a prosecutor who actually appears, and becomes respondent in an appeal to the supe- rior Court, may be ordered by such Court to pay costs according to the ordinary practice in cases stated under 20 & 21 Vict. c. 43. Garnett v. 5acAAoM««, 37 Law J. Rep. (n.s.) Q. B. 228; 10 Best & S. 306 ; Law Rep. 3 Q. B. 699. SALVAGE. iAdmibalty (A) 22-26, (B) 18, 19; Skip- ping (T).] SCHEME OF ARRANGEMENT. [See Railway Company (K).] SCHOOL. [1 & 2 Vict. c. 82, s. 11, 17 & 18 Vict. c. 86, 18 & 19 Vict. c. 87, 19 & 20 Vict. c. 109, and 20 & 21 Vict. c. 55 (as to Reformatory Schools), re- pealed, and the law consolidated. 29 & 30 Vict. c. 117,8.37.] [24 & 25 Vict. c. 113, 24 & 25 Vict. c. 132, 25 & 26 Vict. c. 10 (as to Industrial Schools), re- pealed, and the law consolidated. 29 & 30 Vict. c. 118. s. 3.] [Regulations as to the government of public schools. 31 & 32 Vict. c. 118.] [Various changes in the government, manage- ment, &c., of endowed schools and in the applica- tion of educational endowments sanctioned and rendered compulsory. 32 & 33 Vict. c. 56.] [31 & 32 Vict. c. 118, s. 27, amended, and the Act explained. 32 & 33 Vict. c. 58.] [31 & 32 Vict. c. 113 amended. Extension of powers of new governing bodies and of Gommis- Kioners. 33 & 34 Vict. c. 84.] [Provision made for public elementary educa- tion in England and Wales, incl uding enactments as to supply of schools, management and mainte- nance of schools, school districts to be constituted, and school boards appointed to carry out the pro- visions of the Act. 33 & 3i Vict. c. 75.] 1. — Authority given by the Court to apply to I'lrliamenL to authorise a scheme admitting the children of dissenters to the benefit of a Church of ' lingLind School. And upon application to Par- liament, such authority was granted. Ths Attor- ney General v. The Market Bosworth School, 36 Beav. 305. 2, — Where the intention of the founder of a free grammar school is impracticable (in the pre- sent case the school being intended for 144 boys, the utmost that presented themselves was on an average fifty), the Court will, respecting the in- tention of the founder for all practical purposes, viz., as to fifty boys, settle a scheme for the general improvement of the school, although de- parting from the free character of it. And in the present case it sanctioned the enlargement of the master's house, for the purpose of taking boarders, with money offered by Earl B to provide exhibi- tions. The Btrkhamputead School Case, Law Rep. 1 Eq. 102. 3. — An extended scheme of gratuitous educa- tion, which had been settled by the Court in 1849, for the regulation of a free, grammar school, having become impracticable through the diminu- tion of the charity fund, a new scheme, which, on the application of the trustees, had been djrawn up, and sanctioned by Wood, V.C, 35 Law J. Rep. (n.s.) Chanc. 46 ; Law Rep. 1 Eq. 55, was confirmed on appeal, by the Lords Justices, so far as it provided for the increase of funds by the ad- mission of additional scholars on the payment of capitation fees, and for the expenditure of su'ch funds far the benefit of all classes of scholarSj but was varied, so far as it made a competitive exami- nation the instrument of selection of the free scholars, and established distinctions, other than the payment of capitation fees, between the free and the paying scholars. In re The Free Gram- mar School of the City of Manchester, 36 Law J. Eep. (n.s.) Chanc. 644 ; Law Rep. 2 Chanc. 497. ' The Court also directed the scheme to be re- modelled as to the order of introduction of the new purposes in case the income should not be ' sufficient for all ; and also with a view to increase the proportion of masters to scholars. Ibid. Provisions tending to the introduction into a free school of boys of different degrees of social- standing, are neither in themselves adverse to the original constitution of the school as a free- school, nor necessarily detrimental to the interests of the poorer class. Ibid. Provisions for the selection of scholars of a free school by means of a competitive examination- are in favour of clever boys and the children of the wealthier classes, and are not in accordance with the presumable intention of the founder in favour of education generally. Ibid. , Where a scheme for the management of a charity has become impracticable in any of its details, it is the positive duty of the .trustees to apply to the Court for new directions. Ibid. SCIRE FACIAS. Against shareholders. [See Railway Com- pany, 1.] , Crown land : revocation of grant. .[See CoioNjAL Law, 33.] ^ SCOTCS LAW (A). m f SCOTCH LAW. (A) Pleading and Puactick. (a) See judieata. (b) Beductio ex vapite lecti. !c) Restitutio in integrum, d) Seduction of services. (e) Seference to oath. (,/) Competency of appeal. (B) Absohtte Fiab: Conditional Subsmtu- TION. (C) Settlement. (D)i Entail. (E) Prescription. (F) JCS ACCRESCKNDI. • ■ (G) Charitable Trust. (H) Salmon Fishery. • (I) Teinds. (K) Pooh Law, [7 & 8 Vict. c. 44 ; 29 & 30 Tict. c. 77, as to quoad sacred parishes in Scotland. The first of these Acts amended, and the latter repealed and other provisions substituted. 31 Vict. c. 30.] [Parochial buildings. 25 & 26 Vict. c. 68, s. 1, extended. 29 & 30 Vict. c. 76.] [17 & 18 Vict. c. 64, 29 & 30 Vict. c. U4, as to public libraries in Scotland, repealed. 30 & 31 Vict. c. 71, s. 1.] [29 & 30 Vict, c 28. Labouring classes dwel- lings (Scotland). Provisions of this statute, so far as they are applicable to Scotland, to extend to Scotland notwithstanding 14 & 15 Vict. c. 34, s. 63. 30 & 31 Vict. c. 28, s. 4.] [30 & 31 Vict. c. 24, s. 13, as to the Scotch Court of Justiciary, amended. 31 & 32 Vict. c. 95, s. 19.] [Conjugal Eights Act (Scotland), 24 & 25 Vict. c. 86, ss. 10-13, amended. 31 & 32 Vict. c. 100, s. 100.] [The Scotch Entail Acts amended. 31 & 32 Vict. c. 84.] • [Eepresentation of the People (Scotland). 24 & 25 Vict. c. 83, s. 42, amended and other provisions substituted. 31 & 32 Vict. c. 48, s. 84.] (A) Pleading and Practice. (a) Ees judicata. 1, — In a Scotch suit of declarator by some of the inhabitants of a town, claiming a public right of way, the pursuers obtained a verdict, and upon the defender moving for a new trial the pursuers came to a compromisp (it was said for a pecuniary compensation) with the defender, by which they abandoned the action, and an interlocutor agreed to and registered, by which the defender was as- soilized from the conclusion of the action, and the pursuers ordered to pay 200/. expenses, in a precisely similar declarator by an inhabitant who had not been a party to the previous one : — Held, that a plsa of res judicata was bad, as there had been no exercise of the judicial mind. Qusere, per theLord Chancellor — Whether, under any circum- stances a plea of res judicata would be good against a new pursuer in respect of the public right. Semble, per Lord Romilly and Lord Colon- say — Such a plea might be good. Jenkins v. Sobertson, Law Rep. 1 Sc. App. 117. (A) Seductio etc capite lecti. 2. — According to the law of Scotland an heir- at-law cannot reduce a deed ex capite lecti, or in Bnglish nomenclature, set aside a mortis caus4 deed, unless he can shew that but for the deed he must succeed to the property ; but an heir of sub- stitutionary provision may sue a reduction ex capite lecti where he can shew that the deed pre- judices his interests. Barstow v. Black and Patti- son V. Henderson, Law Rep. 1 Sc. App. 392. (c) Restitutio in integrum. 3. — Restitutio in integrum can only be had where the party seeking it is able to put those against whom it is asked in the same situation in which they stood when the contract was entered, into. Therefcre, in a suit against a company al- leging fraud against the directors, in having induced plaintiff to purchase shares in the company, which was at that time an unincorporated company, but two years afterwards became incorporated : — Held, the fact that plaintiff could not restore the shades in an unincorporated company, was an answer to the argument on the ground of restitutio in inte- grum. Held further, that the incorporated com- pany was not liable to be sued for frauds alleged to have been committed by the agent of the unincorpo- rated company. Action of deceit considered with respect to a corporate body. The Western Bank of Scotland v. Adie, Law Rep. 1 Sc. App. 145. (d) RedtKtion of services. 4. — Where a person claiming as heir of a party to whom the CroWn had made grants of royal pre- rogatives, procured himself to be served ex parte as heir of the original grantor : it is competent for the Crown to maintain an action to have such service reduced and set aside on the ground that the claimant was not lawful heir. Anus proband! on such an action. Alexander v. Officers of State for Scotland, Law Rep. 1 Sc. App. 276. 5. (1) — The "oath of party" is not, strictly speak- ing, " evidence," and, therefore, a reference to oath in a declaration of marriage is not competent. Per Lord Chelmsford, C. ; dubitante, Lord Colon- say. Longworth v. Yelverton, Law Rep. 2 Sc. App. 218. 5. (2) — A reference to oath is a matter purely in the discretion of the Court, and not of right ; and the Court will not permit it where the interest or status of a third person would be prejudiced by a decree founded upon an oath affirmative of the refer- ence. The fact that the House of Lords has given a final judgment is no answer to an application for referencB to oath, so long as such judgment has not been extracted. Longworth v. Yelverton, Law Rep. 2 Sc. App. 218. (/) Competence/ if appeal. 8 —Where the Court of Session, considering it expedient in an action of accoTint, before directing 3 y2 632 SCOTCH LAW (B), (D). issues for trial by a jury, that the books and ac- counts should be examined by an accountant, and reported on by him, makes an order to that effect ; an appeal to the House of Lords from such order, without'the leave of the Court, is incompe- tent. The Western Bank of Scotland v. Bawd, Law Eep. 1 Se. App. 170. (B) Absolute Fiah : Conditional Stjbstittitioh. 7. — Although according to the English law there can be no remainder limited after an estate in fee simple, yet by the Scotch law there may be a destination of property to a person, his heirs and assignees whomsoever, thereby making him absolute fiar, followed by a conditional substitu- tion. Baretow v. Black, Law Eep. 1 Sc. App. 392. (C) Settlement. 8.— The rule for construction of a mortis causi settlement is the intention of the truster, so far as it can be discovered or inferred from the whole deed, and from the circumstances under which the deed was made. A gift to tnistaes for " a daugh- ter in life-rent, and her children in fee " : — Held, on the construction of the whole deed, that the fee vested a morte testatoris in such of the chil- dren as were then living, and in subsequently born children as they came into existence, and that the representatives of such as pre-deceased their mother were entitled to their shares, and not the survivors by jus accreseendi. Carlton v. Thompson, Law Eep. 1 Sc. App. 232. 9. — The term "conquest or acquire" when used in a clause of a marriage settlement, con- cerning the wife's property, does not bear the same technical meaning as it does when applied to the husband's property. Diggens v. Gordon, Law Eep. 1 Sc. App. 136. In an ante-nuptial settlement the lady assigned to trustees " all sums of money, goods, gear, and effects, and heritable and movable estates of every description, which she might conquest or acquire during the subsistence of the intended marriage." Held, these words included money subsequently appointed to her under her parents' marriage set- tlement, and also movable and heritable property derived from her father. Ibid. 10. — The natural obligation of a husband to support his wife and children does not form an onerous consideration, which will support and render irrevocable a post-nuptial grant of money to trustees for the support of the wife and children, stante matrimonio (during the marriage), and such grant will not be rendered valid by a clause declaring that the provision is in full satisfaction of the wife's jus relictse, and all other claims by survivorship. Bunlop v. Johnston, Law Eep. 1 Sc. App. 109. 11. — Where the dominium directum of an estate was settled upon A, his heirs and assignees whom- soever, with a conditional substitution, and the settlor afterwards required the dominium utile, and when A, came into the estate be consolidated the dominium utile for the dominium directum. and afterwards the conditional substitution took effect : — Held, that it only affected the dominium directum. Pattison v. Henderson, Law Eep. 1 Sc. App. 392. (D) Entail. 12. — Although the Court is astute in constru- ing deeds of entail strictly, to discourage the fettering of property, yet it will not, where the intention is clear, fasten on an inappropriate word to vitiate the entail. As where, in the irritant clause, it was declared that "all such acts and deeds of contravention are hereby declared null and void — sicklike, as if the same had never been made (concessa)": — Held, that the entail was valid, and the word " made" applied to debts con- tracted, though not by deed. Howden v. Fleeming, Law Eep. 1 Sc. App. 40. 13. — A gratuitous mortis causft deed by heir in tail in possession, by which his life estate was reserved to him, but on his death purported to convey the estates to trustees upon trusts different from the order of succession under the entail : — Held, though in form an alienation, to be really a deed altering the order of succession ; and to bo prohibited by the clause in the deed of entail against altering the order of succession. (The clause against alienation was informal.) hindsey v. Oswald, Law Eep. 1 Sc. App. 99. 14. — Finality of decree for sum proved to have been expended by the heir of entail, and charge- able against the succeeding heirs in the entailed estates, considered ; and the signature of the per- sonal representative of the improving heir to the accounts considered sufficient where the heir had died four days before the term of Martinmas. Where the heir of entail avails himself of the pro- visions of the II & 12 Vict. c. 36, his personal representatives cannot recur to 10 Geo. 3. c. 51, sects. 4, 12, 26, to render effectual the charge for sums not covered by the bonds under the latter Act. Campbell v. The Earl of Dalhouaie, Law Eep. 1 Sc. App. 269. 15. — Where a lessee under the enabling statute, 10 Geo. 3. c. 51, fails to comply with its require- ments as to building small tenements within the time named, the lease is absolutely nuU and void, and will not be good even for the term for which the tenant of entail could have granted a lease irrespective of the statute. ■ Carrick v. Miller, Law Eep. 1 Sc. App. 356. 16.— In the Wigton entail of 1741 of estates in Scotland there was a " shifting clause," that if any of the heirs should succeed to the dignity of the peerage they should be respectively bound to de- nude themselves of the entailed estates, and the same should from thenceforth ipso facto accrue and devolve upon the next heir of tailzie. This deed was duly recorded. Under the Act, 20 Geo. 2. c. 50, lands called D were in 1847 purchased with the money arising from sales of superiorities, and these lands were by deed settled upon the same limitations as expressed in the deed of 1741 ; but the deed of 1847 was not recorded, though set out on the register of sassines. In 1860 J F the then heir in tail succeeded to a peerage, but he SCOTCH LAW (E), (K)-SESSIONS. did not denude himself of the estates ; he died greatly in debt in 1862, and a creditor sued out a sequestration against his heritable estates : — Held, that the D estate was not liable to the seques' tration. Fleeming v. Howden, Law Eep. 1 Sc. App. 372. (E) Prbscbiption. 17. — To constitute a valid title to land by pre- scription, according to the law of Scotland (Act of 1667, ch. 12), possession for 40 years is not suffi- cient; the possession must be shewn to have been founded on some title,^ and where the land is alleged to have been "part and pertinent" of a barony, it must be shewn to have been at some time held as such by description. But mere dis- contiguity of the land from the barony will not prevent its being " part and pertinent." T%e Lord Advocate of Scotland v. Hunt, Law Rep>. I Sc, App. 85. (F) Jus ACCEESCENDI. 18. — ^Although the jus accrescendi of the Civil Law has, to some extent, been imported into the law of Scotland, yet in many respects it has not been; and where a right in fee has vested in a class, and some of them die, their rights will be transmittal to their representatives, and not to survivors, unless the nature of the subject or the language of the deed requires a departure from the rule It is a question of intention. Carlton v. Thompson, Law Eep. 1 Sc. App. 232. (G) Charitable Trust. 10. — In 1 625, Sir A I by his will gave to trustees for a ohsirity 10,000 pounds Scots money, to be em- ployed by them upon land and annual rent for all time. The trustees refused to receive the money, and the heir raised an action in 1632 to have the direction of the Court of Sessions. The decree ordered the heir, by a certain time, to provide for the use of the charity lands for employing the said sum of 10,000 pounds, worth in yearly rent the sum of 1,000 pounds, to be acquired by him heritably without reversion. This was accordingly done, and the heirs successively had paid the charity 1 ,000 pounds annually. The land had now greatly increased in value : — Held, the charity was entitled in fee to the whole annual rents. New scheme directed. The University of Aberdeen v. Irvine, Law Eep. 1 Sc. App. 289. (H) Saimon Fishery. 20. — A right to salmon fishing being inter re- galia and a separate tenement, it will not pass by the mere word " pertinents," per L. C. ; but a grant by the Crown of "fishings" generally, followed by the exercise of the right of salmon fishing for forty years, will constitute a title to salmon fishing against the Crown ; and a grant of " fishings," generally by a subject, followed by the exercise of the right, of salmon fishing for forty years, will give the disponee a valid title under the A ct of 1C17, c. 12, although the disponor had no right to salmon fishing ex adverse his lands at the time of 533 the disposition. The Lord Advocate v. Sinclair of Forss, Law Eep. 1 Sc. App. 174. 21.— Where the right to a salmon fishery depends upon a royal charter, evidence of usage and practice is unnecessary, as the right could not be lost a non utendo. Stuart v. McBarnett, Law Eep. 1 Sc. App. 387. &mble, per Lord Westbnry— Although it is true in the law of Scotland, as an affirmative proposi- tion, that an ambiguous grant of piscationes alone, may be interpreted into a jus piscandi salmones by evidence of user by net and coble, yet the negative proposition that no evideffce, except user by net and coble, would be sufficient to establish it, is not true. Ibid. (I) Teinds. 22. — A liberal interpretation will be put upon decrees of valuation for Teinds (Tithes) so as to support long usage and acquiescence, and where there are general words of designation, which may be ctmsidered as comptehending the whole lands in which teind is claimed, effect will be given thereto. Yet where the decree does not contain B^ch general designation, and the construction of the decree does not necessarily include lands of which teind is claimed, an inquiry will be directed as to what lands are unvalued. HtMl v. Pawl, Law Eep. 1 Sc. App. 127. (K) Poora Law. S3. — Able-bbdied persons are absolutely ex- cluded from relief out of funds raised for relief of the poor under 8 & 9 Vict. c. 83. The Poor Law Boards of Scotland have no discretionary power to grant relief to such persons, though in destitution from want of employment, and though they may be willing to work, if they could obtain work, Jaek Y. Isdaile, Law Eep. 1 Sc. App. 1. SEA BANK. [See Si WEBS ; Wat, 4.] SEDUCTION. The plaintiff's daughter, a minor, was dis- missed from the service of a third person, and se- duced during her journey back to her father's house : — Held, that she was constructively in her father's service at the time of her seduction, as he was entitled to her services the moment after her former service had terminated. Terry v. Hntchin- son, 37 Law J. Eep. (n.s) Q. B. 257 ; 9 Best & S. 487; Law Eep. 3 Q. B. 599. SESSIONS. Mandamus' to, to enter continuance_ and hear appeal. [See MA>rDAMUs, 2; Ale- house, 1,] Adjournment : Prisons Act. [See Phi.son, 2,' $34 SET-OFF (A), (B). SET-OFF. (A) At Law. (B) In EauiTY. (A) At Law. 1. — In an action by tnistees under a deed exe- cuted in accordance with the Bankruptcy Act, 1861, the defendant may set off rent accruing due to him from the assigning debtor after the execution and before the registration of the deed ; the regis- tration and not the execution, being the dividing line between the title of the trustees and that of the debtor. Stanger and another v. Miller, 35 Law J. Eep. (n.s.) Ex. 49 ; 4 Hurl. & C. 1 ; Law Eep. }. Ex. 68. 2. — The plaintiff and the defendant had trans- itions in corn, which resulted in a claim by the plaintiff of a large sum ; this balance he assigned to F, of which the defendant had notice ; the de- fendant asserted that the balance was in his favour. An action was brought by F, in the name of the plaintiff, which was referred, and an award made in his favour ; an action was then brought on the award. It turned out that one of the transactions previous to the assignment was that the defendant, as agent for the plaintiff, purchased a cargo of corn under a contract which provided that any dis- pute should be referred in a specified way ; that the plaintiff had tried to avoid the contract by first asking the defendant to take the corn, then deny- ing the agency, and then disputing the proper state of the cargo ; and that the defendant compromised the claim of the vendor by giving two bills of ex- change, one of which became payable before the first action, the other long after ; but that neither in the account rendered by the defendant, nor in the set-off in the first action, nor in the arbitration, was the claim as to these bills mentioned. In the action on the award the defendant claimed to set off this amount: — Held, that he was entitled to do so. Baker v. Alexander, 35 Law J. Eep. (n.s.) C.P. 217. 3. — The defendants bound themselves to the plaintiffs by certain instruments, called Lloyd's Bonds, to pay certain sums of money and interest at the expiration of a year. A few days after- wards the defendants granted the plaintiffs a lease. The plaintiffs then assigned away the said bonds. In an action brought by the plaintiffs for the benefit of the assignees on the said bonds, the de- fendants claimed to be entitled to set off rent which accrued due under the lease after such as- signment and notice thereof : — Held, that the de- fendants were not so entitled either at law or in equity. Watson and another v. The Mid Wales Eailwat/ Company, 36 Law J. Eep. (n.s.) C. P. 285; Law Eep. 2 C.P. 693. 4. — Where one of several co-debtors becomes bankrupt, and an action is brought against them to recover the joint debt, stat. 12 & 13 Vict. c. 106, D. 171, does not enable them to plead as a set-off ii cross debt due from the plaintiffs to them before such bankruptcy. The New Qiiebrada Company, Limited, v. Carr and others, 38 Law J. Eep. (n.s.) C. P. 283 ; Law Eep. 4 C. P. 661. The case of Staniforth v. Fellowes, 1 Marshall, 184, followed. Ibid. 5, — 1. To an action by an administrator de bonis non, who sues in his representative character for a debt due after the death of the intestate, and in the lifetime of the first administrator, the de- fendant cannot set off a debt due to him from the first administrator. 2. Therefore in such an action a plea that the moneys in the declaration mentioned were re- ceived by the defendant as agent of H N (the first administratrix) for her, and the defendant applied them, as directed by H N and as her agent, in the administration of the estate of the intestate, and that the moneys were not due from the defendant to H N as administratrix, is bad. Allison and Wife V. Smith, 10 Best & S. 747. Plea of equitable set-off at Law. [See Eate OF Exchange, 25.] (B) In Equity. 6. — A landlord recovered judgment at law for rent and then filed a bill against the tenant for an injunction against a breach of covenant. This bill ■ was dismissed with costs, and plaintiff was ordered to pay damages in respect of an interim injunction : — Held, that plaintiff was entitled to set off his judgment at- law against the damages, but not against the costs. Throckmorton v. Crowley, Law Eep. 3 Eq. 196. 7. — An executor proving against the estate of a bankrupt for a debt due to his testator's estate extinguishes the debt as effectually as if it were due to him in his own right ; he cannot, therefore, set it off against a claim of the bankrupt to a share in the residuary estate of the testator. Stammers v. Elliott, 37 Law J. Eep. (n.s.) Chanc. 353 ; Law Eep. 3 Chanc. 195. Illustrations of the rule that "except under special circumstances, Courts of Equity never allow cross demands existing in different rights to be set off one against another." Ex parte ZHcken, 1 Buck. 115, distinguished. Ibid. 8. — Eeal estate was devised to trustees for a term of years to secure a capital sum and interest thereon in favour of M, and, subject thereto, to the use of F for life. F was let into possession by the trustees, but failed to keep down the interest upon the charge. M bequeathed a legacy to F, which the executors retained as a set-off against the unpaid interest : — Held, that F was entitled to the legacy, there being no debt as against him, and no right of set-off in respect of the arrears of interest. Morley v. Saunders, 38 Law J. Eep. (n.s.) Chanc. 562 ; Law Eep. 8 Eq. 594. 9. — Where A sold an estate to a limited com- pany, receiving debentures in part payment which were payable to him or his assigns, and subse- quently assigned some of them to C & S, to whom the company issued certificates ; C & S, when their debentures came due, brought actions, where- SETTLED ESTATES (A), (0). 535 upon the company claimed a set-off of a debt due by A for unpaid calls, on the ground that, by the articles of association, the company had a primary ■ lien on the debentures of any member of the com- pany for a debt due by- him : — Held, that the company had lost in equity its right to a set-off by the nature of the original contract with A, and their subsequent dealings with C & S. Higgs v. The Northern Assam Tea Company, Limited, 38 Law J. Rep. (n.s.) Ex. 233 ; Law Eep. 4 Ex. 387. This decision followed and approved by the Court of Chancery. In re Northern Assam Tea Corapany, Ex parte Universal lAfe Assurance Com- pany, Law Bep. 10 Eq. 458. 10. — The testator held 2,000i. belonging to his nephew, on which for eight years he paid interest, notwithstanding the nephew owed him 1 ,0002. on his promissory note. Though the nephew had paid no interest on the note, and had given no acknowledgment of the debt : — Held, that although tlio remedy for recovering the 1,000/. was barred by the Statute of Limitations, still the right of the executors to set it off against the 2,0002. remained. Gee V. lAddd, 36 Beav. 829. Set-off in accounts between m/yrtgagor and mortgagee. [See Company (0) 26.] Winding-up: contributory entitled to set off. [See Company (E) {d), (G) (e).] Set-off in bankruptcy : mutual credit. [See Bankeuptcy, 56, 57.] SETTLED ESTATES. (A) JCBISDICTION OF CoUBT OF ChANCEKT. . (B) What abe " Settled " Estates. - (C)Phactice. (a) Advertisement of petition. (b) Authorising lease. (c) Examination o/married woman. (d) Infant interested. (e) Consent of lunatic. (/ ) Application of proceeds of sale. [Sections 23, 24, 25 of 19 & 20 Vict. c. 120, extended to money to be received on sales in partition suits. 31 & 32 Vict. c. 40, s. 8 ] (A) Jceisdiction of Cotiet of Chancery. 1, — The 1 7th section of the Leases and Sales df Settled Estates Act, 19 & 20 Vict. c. 120, requiring the concurrence in all applications to the Court of all persons in existence having any beneficial estate or interest under the settlement, does not ^apply where, from the nature of the case, such persons cannot be ascertained, as where a remain- der is. limited to the heirs of a, living person as purchasers. Under a marriage settlement a remainder in fee simple after a life estate given to the wife for her separate use without power of anticipation, was vested in Jier heir-at-ljpw as a purchaser: — Held, ■reversing the decision of the Master of the Eolls, 38 Law J. Eep. (n.s.) Chanc. 92, that the Court had power, under the Leases and Sales of Settled Estates Act, 19 & 20 Vict. e. 120, to make a valid order for sale in the lifetime of the wife, notwith- standing the person who might eventually be her heir-at-law could not be ascertained, and therefore could not be a party to the application. Beioley V. Carter, 38 Law J. Eep. (n.s.) Chanc. 283 ; Law Eep. 4 Chanc. 230. (B) What abe " Settled " Estates. 2. — A testator devised real estate to trustees upon trust to sell at their discretion. The produce of the sale was given to the testator's widow during her life or widowl.ood, with remainder in favoiir of the testator's children. There ^vas no direction as to the application of the rents until sale : — ■ Held, that as upon the implied intention the rents until sale followed the destination of the income after sale, the estate was " settled " within the meaning of the Leases and Sales of Settled Estates Acti In re Jjaing's Trust, 36 Law J. Eep. (n:s.) Chanc. 282 ; Law Rep. 1 Eq. 416. 3. — Testator devised an estate in fee, upon trust to let and manage it during the life of his wife, and the minority of any of his children, and to pay a moiety of the net profits to the wife for life, and subject thereto in trust for the children in fee in equal shares. The trustees, with the widow and children, having obtained an order for the sale of' part of the estate, under the Settled Estates Act, the purchaser objected that one moiety of the estate was not "settled" : — Held, that the whole was a settled estate within the Act ; and held also, that if the order was wrong, the purchaser having the- concurrence of all persons beneficially interested' would take an indefeasible title under the 28th' section of the Act. In re Shepheard^s Settled Estate, 39 Law J. Rep. (n.s.) Chanc. 173 ; Law Eep. 8'' Eq. 571. Semble — Where an undivided share of an estate" is settled, the entirety may be dealt with as a settled estate within the Act. Ibid, (C) Practice. (a) Advertisement of petition. < 4. — An advertisement of a petition under 19.& 20 Vict. c. 120, sect. 20, held sufScient, although it only gave the name of one out of 26 petitioners,' and omitted to give addresses and descriptions of the whole 26. In re Whiteley's Settled Estates,' Law Rep. 8 Eq. 574. (4) Authorising lease. ■ 6. — Although by the second condition of section, 2, the best rent that can be reasonably obtained Js' to be reserved, yet where under section 5 a sub- sisting lease is to be'sutrendSred and a new one granted, the value of the surrendered lease may be taken into consideration in determining the rent to be reserved by the new lease. In re Bawlins' Estate, Law Rep. 1 Eq. 286. 6. — The Court capnot authorise a lease, under 636 SETTLED ESTATES, (C).— SEWERS (A), (B). the Settled Estates Act, if any one of the parties interested under the settlement opposes the appli- cation. In re Merry's Trusts, 36 Law J. Eop. (k.s.) Chanc. 168. 7, — Where infants were tenants in fee, but their father was in possession as tenant by the curtesy, the Court granted a lease under the 1 7th section of the 1 1 Geo. 4. & 1 Will. 4. c. 65. In re Spencer's Estates, 37 Law J. Rep. (n.s.) Chanc. 18. Fx parte Leigh, IS Sim. 445, not followed. Ibid. 8. — A lease may be authorised under the Leases and Sales of Settled Estates Acts, upon the sur- render of an existing lease, although an underlease granted by the surrendering lessee is unexpired. In re Ford's Settled Estate, Law Eep. 8 Eq. 309. (c) Examination of married woTnan. 0. — The examination by the Court of a married woman, who is herself a petitioner, may be taken at any time before an order is made. Be Packer's Settled Estate, 39 Law J. Rep. (n.s.) Chanc. 220. {S) Infant interested. 10. — Upon a petition for sale of land under the Settled Estates Act, in which an infant is in- terested, the testamentary guardian is not com- petent to consent, a guardian must be appointed for the purpose. In re Bobert James, Law Rep. 5 Eq. 334. (e) Consent of lunatic. U. — Where a person whose consent is necessary to an application under this Act is of unsound mind, but not found so by inquisition, the proper course to be adopted is to apply for the appoint- ment of a guardian to him for the purpose of con- senting. In re Tenner's Settled Estates, Law Eep. 6 Eq. 294. 12. — Where an application is made for the sale of a settled estate under this Act, and the tenant in tail is a lunatic, the consent of the committee will not be acted on, unless such consent has been previously authorised by the jurisdiction in lunacy. Form of order. In re WoodcocKs Trusts, Law Eep. 3 Chanc. 229. (/) Application of proceeds of sale. 13. — Where a settlement contained a power of sale, and a direction as to investment of proceeds, but in consequence of the power not being imme- diately exercisable, a sale was eifected upon an order made under the above Act : — Held, that the proceeds might be paid to the trustees of the settle- ment, ifind need not be applied as directed in sec- tion 23. In re Morgan's Settled Estates, Law Eep. 9 Eq. 687. SETTLEMENT (POOE LAW). [See PooE (E).] SETTLEMENT. [See Mareiagb Settlement ; Volvntaby Set- IXEMBNT.] SEWEES. (A) JimiSDlCTION OP COMMISSIONEBS. (B) Award of Inoi.osure Commissionehs. (C) Statctohy Powers : Latebai, Support. (D) Liability to bgfaib Sea Bank. [28 & 29 Viet. c. 75, s. 2. This section partly repealed. 30 & 31 Vict. c. 113, s. 6.] [11 & 12 Vict. c. 63, ss. 51-54, amended and extended. 31 & 32 Vict. c. 115, s. 4.] [21 & 22 Vict. c. 98, B. 32. Paragraphs 1, 2, and 3 amended. ^ 31 & 32 Vict. c. 116, s. 6.] [Hospitals in the metropolis to be within the district of every one of the nuisance authorities. Eegulations as to giving notices in certain special drainage districts, and as to service of orders and demands of the Secretaries of State under the Sanitary and Sewage Utilisation Acts. 33 & 34 Vict. c. 83.] (A) JtTBISDICTION OF COMMISSIONEBS. 1. — By a local Act of Parliament, power was . given to the Commissioners of Sewers to widen the streets within their district, and if any houses, lands, &c. or any part thereof, should be adjudged by them to project into or obstruct such streets, and that the purchase thereof should be necessary for the purposes of the Act, power was given to them to treat and contract with the owners and occupiers thereof, and to pull down, use, sell or dispose of such houses, &c. and the materials thereof, and lay the sites thereof, and also such other lands, &c. or so much thereof as the said Commissioners should think proper, into the said streets. The Commissioners having adjudged that it would improve a certain street if a piece of land, parcel of the site of a house in the street, were cleared and thrown into the street, caused the oc- cupiers to be served with notice to treat for the sale of the whole site. Upon a bill filed by the occupiers : — Held, that the Commissioners had no power to purchase compulsorily the whole site of the house> but only so much as had been adjudged necessary for the improvement of the street. Thomas v. Daw, 36 Law J. Eep. (n.s.) Chanc. 201 ; Law Eep. 2 Chanc. 1. (B) Award of Inclosube Commissionebs. 2. — By a private inclosure Act, certain Com- missioners were required to make, appoint and stake out all " the public bridges, roads and high- ways " within a certain township, and also set out or appoint " such private ways or roads, hedges, fences, ditches, bridges, causeways, banks, sluices, drains, sewers, doughs, &c. within the township as they should think convenient," the SEWERS (C), (D)-SHELLEY'S CASE. 537 Act providing "that all such public roads, bridges, sewers and drains should be made, repaired, and kept in repair in such manner as the other public highways, bridges, sewers and drains within the township were by law to be repaired and kept in repair." The Act went on to provide that all such private ways, &c. should be supported and repaired by all or any of the proprietors of lands within the township in such manner as the Com- missioners should by their award appoint, and required the Commissioners by their award to describe " all manner of public highways, bridges, sewers and drains," and all private ways, doughs, banks, bridges, sewers and drains," within the in- closed lands. The Commissioners, by their award, appointed (amongst others) two public sewers, and directed that they should be kept in repair and preserved of a certain width and depth by the owners and proprietors of the inclosed lands ac- cording to an acreage rate. The owners and pro- prietors contributed to the repiiir of these two sewers during eighty years after the Act • — Held, that a presentment that one of these sewers ought to be made of an increased gauge and re- paired by the proprietors of the inclosed lands according te an acreage rate, without disclosing any liability upon the part of these owners ratione tennrae, or by reason of benefit, was illegal, as the Act did not alter the law regulating the repair of public sewers, and the award, if it purported to do so, was ultra vires, and that ary one distrained upon in pursuance of the presentment might maintain trespass without appealing from the order of the Commissioners. Biglin v. Wylie and others, 36 Law J. Kep. (n.s.) Q. B. 307. (C) -Statutokt Powers : Lateral Support. 3.— By the U & 12 Vict. c. 112, s. 38, the Metropolitan Commissioners of Sewers were em- powered to make such sewers as might be neces- sary, and to carry them " into, through or under any lands whatsoever, making compensation for any damage done thereby." By section 69, " full compensation was to be made to all persons sus- taining any damage " by the exercise of the powers of the Act ; and by section 54, vaults and cellars adjoining the sewers were to be substantially made, and so as not to interfere with such sewers. The Commissioners had power to purchase only by agreement lands or easements necessary for the formation or protection of works which the Commissioners were authorised to execute under " the Act; but the 18 & 19 Vict. c. 120 gave full power to the Board of Works, to^hom the rights and property of the Commissioners were trans- ferred, to compulsorily purchase any land or ease- ment which they might require. A railway com- pany in the execution of the works authorised by their Act made an excavation in their own land which caused damage to a sewer of the Board adjoining such land, and which had been con- structed less than twenty years previously by the Commissioners under the 11 & 12 Viet. u. 112. The excavation was properly made by the railway company, and was sufficiently strutted to have supported the adjoining soil in its natural po- DiGEST, 1865-70. sition, but not to support it with the sewer, and consequently the sewer gave way and was damaged : — Held, affirming the decision of the Court of Common Pleas, 87 Law J. Rep. (n.s.) C. P. 281 ; Law Rep. 3 C. P. 612 (Cleasby, B.dubitante) that the Board had not acquired any right fo lateral support for their sewer from the adjacent land, since no such right had been purchased from the owner of such land, nor was it conferred by the H & 12 Vict. e. 112, or by the construction of the sewer under that Act. The Board, therefore, was held to be not entitled to compensation from the railway company, for the injury the sewer had sustained. The Metropolitan Board of Works v. The Metropolitan Railway Gorrpany, 38 Law J. Rep. (N.s.) C. P. 172 ; Law Rep. 4 C. P. 192. (D) Liability to repair Sea Bank. 4. — At a General Court and Session of Sewers, the jurors presented that the defendant and those whose estate he had in certain messuages, lands, &c. , from time whereof the memory of man runneth not to the contrary, by reason of their tenure of the said messuages, lands, &c., had been used to repair, and of right ought to have repaired, &c., a certain sea-bank ; that the sea-bank, through the neglect and default of the defendant, and for want of being kept by him in due and sufficient repair, was out of repair, &c., and that the defendant, by reason of his tenure, &c., ought, at his costs and charges, to repair the same, &c., and that such costs and charges would amount to the sum of 26/. 10s. The defendant traversed the present- ment, and upon issue joined was found guilty. The Court then imposed a charge upon the defen- dant of 26/. 10s., being the amount found by the jury to be the cost of repair of the sea-bank, and ordered him to pay to the general expenditor that sum, the same having been expended by him in the repairs of the sea-bank. No notice had been given to the defendant to do the repairs as provided by the 3 & 4 Will. 4. e. 22, s. 15. The defendant was a mortgagor in possession by his tenant, and in receipt of the rents and profits : — Held, first, that the proceedings were regular, and might be supported under the provisions of the 23 Hen. 8. u. 5 ; secondly, that they were properly instituted against the defendant. The Queen v. Baker, 36 Law J. Rep. (n.s.) Q. B. 242 ; Law Rep. 2 CI. B. 621. What is a" sewer " within the Public Health Act, 1848. [See Public Health Act, 21.] Abatement of nuisance. [See Nuisance, 12.] Fovoer of local authority as to new sewers. [See Nuisance, 13.] Injunction to restrain 'discharge of sewage. [.See In,iunction, 22j 23.] SHELLEY'S CASE, RULE IN. [See Will, Construction (I), 14-17.] 3Z 6S8 SHERIFF (A). SHERIFF. (A) Liabilities op the Sheriff. (a) Arresting wrong person, {b) Failure to arrest. (c) Arresting bankrupt hauing eertiJiccUe of protection, {d) Escape. (e) Negligence in conaiucting sale. (/) False return. (B) Rights of the Kheuiff. («) Riqht to file bill of interpleader. (b) "• ' (A) Liabilities of the Sheiuff. (a) Arresting wrong person. 1. — A writ of capias to hold to bail was issued by M against 0, and under the writ the plaintiiF, O's brother, was arrested. The officer persisted in making the arrest, although the plaintiff pro- tested against it. The plaintiff, on baiug informed by the officer that he might get rid of the arrest - by depositing the amount of the debt and 10/. for costs, did deposit the sum of 501., which wns in duo course paid into Court. A summons was taken out, calling upon the plaintiff to shew cause why the money should not be p_iid over to M ; but the plaintiff declined to attend the summons, and the money was paid over. The plaintiff having brought an action- against the sheriff to recover the money so paid over :— Held, that he was entitled to recover. Se Mesnil v. Dakin, 37 Law J. Rep. (n.s.) Q. B. 42; 8 Best & S. 650; Law Rep. 3 G. B. 18. [And see Aerest, 1.] (i) Failure to arrest. 2. — It is no excuse for a sheriff not arresting a debtor, under a ca. sa. that the debtor produced a certifiente of the registration of a composition deed if he had had the opportunity of pleading the deed and had omitted to do so, of which the sheriff had notice ; and an action will lie against the sheriff at the suit of the judgment credi- tor for not arresting under such circumstances. Godwin and another v. Stone and another, 38 Law J. Kep. (n.s.) Ex. 153 ; Law Rep. 4 Ex. 331. . • (f) Arresting bankrupt having certificate of pro- tection. 3. — An adjudicated bankrupt, who had obtained protection, was arrested by a sheriff's officer by virtue of a warrant issued under an attachment out of Chancery for non-payment of money ; he shewed his protection and claimed his discharge, but the officer detained him longer than would have been necessiiry to obtain a copy of the pro- tection, and on the same day lodged him in gaol ; the bankrupt brought an action against the officer for penalties under the Bankrupt Law Consolida- tion Act, 1849, s. 113 :— Held, that the officer was liable for one penalty. Lees v. Newton, 35 Law J. Eep. (U.S.) C. P. 285 ; H. & E. 734 ; Law Eep. 1 C. P. 658. 4. — The sheriff is bound to discharge a debtor out of custody on the production of the certificate of registration of a deed of arrangement under the Bankruptcy Act, 1861, made subsequently to the judgment under which the debtor was arrested, notwithstanding the deed, though valid on the face of it, be in fact invalid, and the sheriff has notice of such invalidity. Ames v. Colnaghi, 37 Law J. Eep. (n.s.) C. p. 159 ; Law Eep. 3 C. P. 359. 5. — A person who has been arrested under a writ of execution, notwithstanding he had a certi- ficate of the Eegistrar in Bankruptcy of his registration of a deed of arrangement under the Bankruptcy Act, 1861, cannot maintain an action against the sheriff for detaining him in custody after the production of such certificate to the sheriffs officer, Ames v. Waterlow and others. 39 ~ Law J. Eep. (n.s.) C. P. 41; Law Eep. 5 C. P. 53. The last case explained. Ibid. [And' see Composition Deeds, 77 ; Arkest, 4-9 ; Bankruptcy, 74-75.] {d) Escape. 6. — In an action against, the sheriff for the escape of an execution debtor, the measure of damages is the value of the custody of the debtor at the time of the escape ; but in estimating such value the jury are not limited to the consideration of the actual available means of the debtor, but they may consider, according to the^ evidence of the case, the value of the chances of the creditor obtaining payment by continuing such imprison- ment. Macrae v. Clarke,' 55 Law J. Eeo. (n.s.) C. P. 247 ; H. & R. 479 ; Law Eep. 1 C. P. 403. 7. — :The plaintiff having recovered judgment against B, sued out a ca. sa., and delivered it to the sheriff. B had previously entered into a deed (to which the plaintiff had not assented), which purported to be a deed of assignment for the benefit of his creditors, but which was, in fact, an invalid deed under the Bankruptcy Act, 1861. It was, nevertheless, duly registered ; and the Chief ''Eegistrar gave a certificate of registration to B. The certificate contained a note that it was avail- able as a protection in bankruptcy. The sheriff arrested B ; but upon the production of this certi- ficate allowed him to go at large, ai d returned that B was entitled to protection from arrest, and that he was not found in his bailiwick. An action having been brought against the sheriff for a false return, and an escape : — Held, affirming the judg- ment of the Court of Queen's Bench, that the certificate entitled B to his discharge, and that thei-e must he judgment for the defendant. Uoyd V. Harrison, 35 Law J. Eep. (n.s.) Q. B. 153 ; 7 Best & S. 529 ; Law Eep. 1 Q. B. 502. 8. — The protection of the certificate of regis- tration under section 1 98 of the Bankruptcy Act, 1861, does not extend to process in respect of debts accruing due after the date of the registration of the deed ; and therefore a sheriff is liable in an action for an escape, if he discharge a debtor on the production of a certificate bearing date prior to the date of the judgment on which the debtor was arrested. Williams and another v. Rose, 37 Law J. Eep. (n.s.) Ex. 12 ; Law Eep. 3 Ex. 5. 9. — By the Banla-upt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, s. 27, " any registrar SHERIFF (A), (B). 5S9 of the Court may, during vacation, or during the illness or absence from any other reasonable cause of any Commissioner thereof, act for and as the deputy of such Commissioner ; and any such re- gistrar so acting shall have and exercise all power vested in the Court," &c. By the General Orders in Bankruptcy, 1862, Rule 44 (a rule continued by No. 36 of the Rules and Orders under the Bank- ruptcy Act, 1861), "except in cases of emergency, the nature whereof shall be entered on the pro- ceedings, no registrar shall sit or act for any Com- missioner under section 27 without the express request in writing of such or some other Commis- sioner." In an action against the sheriff for an escape, he pleaded that he discharged the debtor in obedience to an order for his release duly made by the registrar of the Court of Bankruptcy. The plaintiff replied that the registrar had not been requested in writing by any Commissioner of the Court to sit or act for him, nor had any case of . emergency, as in the General Order of 1852, arisen, nor was the nature of such emergency entered on the proceedings: — ^Held, on demurrer, that the replication was bad, and the sheriff not liable ; as, although the order might possibly have been re- versed by the Lord Chancellor for irregularity, there was nothing on the face of it to give notice to the sheriff of its irregularity, and it was not his duty to inquire whether the registrar was duly qualified. Hargreaves and another v. Armitage, 38 Law J. Rep. (n.s.) Q. B. 46 ; Law Rep. 4 Q. B. 143. 10. — On the 3rd of August A served on B a writ, under the Bills of Exchange Act ; on the 5th B executed a composition deed; on the 13th the deed was registered, and a certificate thereof granted to B ; on the 16th judgment for non- appearance was signed ; the sheriff took B into custody on a ca. sa. ; but on being shewn the cer- tificate, let him go : — Held, that the sheriff was liable to an action of escape at the suit of A. Allen V. Carter, 39 Law J. Rep. (n.s.) 0. P. 212; Law Rep. 5 C. P. 414. (e) Negligence in conducting sale. 11. — The sale of goods under a fi. fa. having been fixed for the 26th of July, the sheriff's officer, at the request of the debtor, delayed issu- ing advertisements till the 25th. On that day a further delay of some hours was granted at the request of the. debtor's attorney, who ultimately instructed the officer to go on and sell, at the same time under another writ which had been de- livered to the officer during the day. The goods were thereupon sold together without being lotted, at a considerable loss : — Held, that the interference of the debtor did not make the officer his agent, and that the sherfff was not relieved from his lia- bility in respect of the negligent conduct of his officer in conducting the sale. Wright v. Chil,d, 35 Law J. Rep. (n.s.) Ex. 209 ; 4 Hurl. & C. 629 ; Law Rep. 1 Ex. 358. (/) False retwn. 12.— The plaintiff, on the 23rd of May, re- covered judgment in an action against B, and the same day placed a writ of fi. fa. in the hands of the agent of the sheriff of Yorkshire in London. A warrant was sent down by post, and the next morning about nine o'clock, was in the hands of the officer of the sheriff at H, at which place B had a warehouse containing certain property. The officer went to the warehouse, but finding the - door locked did not break in or make the seizure. At a little before ten o'clock B executed a deed of assignment of his goods and effects to trustees for the benefit of his creditors, of whom two were the trustees. B, and also L, his attorney, who pre- pared the deed, knew of the writ being in the hands of the sheriff before the deed was executed ; but the trustees did not know it. The deedhavirg been executed, notice was given to the officer, and he, by direction of L, seized the goods on behalf of the creditors. The sheriff having made a re- turn of nulla bona, an action was brought against him by the plaintiff. At the trial the jury re- turned a verdict for the defendant: — Held, by the Court, having power to draw inferences of fact, first, that although the officer might have seized before ten o'clock, the sheriff was not liable for his not having done so. Secondly, that the trustees, being creditors, took a title to the goods under the deed, although they did not execute it or assent lo it at the time of the execu- tion by the debtor. Thirdly, that B and L, having knowledge of the writ being in the hands of the sheriff, the trustees must be taken to have notice of it also ; and therefore that, under the Mercantile Law Amendment Act, they could not set up their title against that of the plaiutiff under the writ. Fourthly, that, such being the case, the sheriff was in default for not seizing the goods. Fifthly, that the Court would draw the inference that the creditors would have availed themselves of the means afforded by ss. 73 and 74 of the Bankrupt Act, 1861, and have obtained possession of the proceeds of the sale if the sheriff had sold, and therefore that the plaintiff had suffered no in- jury for which he could recover damages. Hobson and another v. Thellnsson, 36 Law J. Rep (n s ) Q. B. 302 ; 8 Best & S. 476 ; Law Rep. 2 Q. B. 642. (B) Rights of the Sheeiff. (a) Right to file bill of interpleader. 13. — A sheriff who, under a fi. fa. against a railway company, had levied execution on certain goods upon the premises of the company, was served with a notice by a third party that he claimed the goods, and thereupon the sheriff, without giving any notice of this claim to the cre- ditors at whose instance the writ had been sued out, filed a bill of interpleader: — Held, that the plaintiff had acted too hastily, and on the proceed- ings being stayed, must pay the costs of the suit. Duttony.Furniss, 36LawJ. Rep. (n.s.) Chanc.463. [And see Inteepleader, 2.] {d) Poundage. 14.— To entitle the sheriff's officer to charge poundage and other fees, under a writ of fi. fa., he must have made an actual seizure, before tender of payment. What was held not to have amounted to an actual seizure. Nash v. Dickinson Law Rep. 2 C. P. 252. 3z2 MO SI-IIPPIXG (A), SHIPPING. [See Admiralty ; Mabine Insurance ; Stoppage IN Transitu.] (A) Bill of Lading. (a) Excepted perils. (b) Payment affreight. (e) InHorseTtwnt of. (1) Evidence, (2) Ejfect of : right to sue. (d) Evidence. (e) Delivery of goods. (./) Pledge of. • (B) Bottomry. (a) Validity of bond. (1) Notice to owner. (2) Necessity: advances. (3) As against mortgagee. (b) Loss of ship. (c) Conflict of laws. (d) Rights of bondholder generally, (C) Cargo. (D) Charter-party: Construction of. (a) Loading of cargo. (i) Exertions and limitation of liability. (c) Deviation. (d) Payment affreight. (E) Collision and Damage. (a) Who to blame. (4) Sailing rules. (1) Ships crossing. (2) Departure from rule, (c) Lights. ' Xd) Limitation of liability. (e) Limi for damage. (V) Delivery. (6) Demurrage. (H) Freight. (a) Payable before delivery. (b) Measurement. (e) Freight pro raid, {d) Lien. (1) Against cargo in ship to blame for (2) Freight payable in advance. (I) General Average. (a) What is the subject of. (b) Adjustment of contribution. (K) Master. (a) Wages and disbursements, (6) Duties. (e) Authority. (L) Measurement of Tonnage. (M) Mortgage and Lien. (a) Bight to freight. {h) User of ship by mortgagor. (c) Priority: registration. (d) Arrest. ^ (e) Maritime lien : foreign judgment. (/) Lien of ship's agent. (g) Bights of mortgagor. (N) Necessaries. (0) Offences. (P) Owners. (Q) Pilotage. (a) When compulsory. (A) Conflict of laws, (c) Owner's exemption from damage caused by collision. ((f) Duties of pilot. (R) Policy of Insurance. (S) Sale. (T) Salvage. (a) Salvage agreement. (b) Salvage by tug or steamboat (c) What constitutes salvage service. (d) Who may be salvors. (e) Amount and distribution. (/) Befusal to allow crew of salved vessel to assist. (U) Seamen's Contract : Breach. (V) Wages. [Dockyard Extension Act, 28 & 29 Vict. c. SI, s. 1, to be construed as if thn date, 30th June, 1866, had been inserted in it instead of 31st March, 1866. 29 Vict. c. 27.] [Ships importing spirits, 16 & 17 Vict. e. 107, s. 44, and 20 & 21 Vict. c. 62, s. 16, to be read with " forty tons " substituted for the words " fifty tons." 30 & 31 Vict. c. 82, s. 1 ] [Merchant Shipping Act, 17 & 18 Vict. c. 104, ss. 224-227, and 231, sections repealed. 30 & 31 Vict. c. 124.] [The provisions of the 30 & 31 Vict. e. 1.5, with respect to the rules to be observed in determining the amount of compensation to be paid under the Act, varied. 32 & 33 Vict. c. 32.] (A) Bill of Lading. (a) Excepted perils. 1. — The plaintiffs shipped goods on board the defendants' vessel, the Black Prince, under a bill of lading, which contained inter alia the ex- ceptions of " barratry " and " perils of the sea." The Black Prince, with the plaintiff's goods on board, was lost in a collision with another vessel, the Araxes. In an action on the bill of lading for the loss of the goods, there was evidence at the trial that the collision arose from the Black Prince starboarding instead of porting her helm, as re- quired by the rules laid down by the Merchant Shipping Act, 1854, and a collision occasioned by non-observance of such rules is, by section 299 of that Act, to be deemed to have been occasioned " by the wilful default of the person in charge " of the offending ship. The Judge left the question to the jury whetJier the collision was caused by the negligence of the defendants' crew, and also whether there' was want of ordinary care on the part of the Araxes by which the collision might have been avoided ; and the jury found there was no want of care on the part of the Araxes, and that the collision was caused by. the negligence of the defendants' crew : — Held, affirming the judg- ment of the Court of Common Pleas, 35 Law J. Eep. (n.s.) C. p. 321 ; Law Kep. 1 C. P. 600 ; that the contravention of the rules of the Merchant Shipping Act, 1854, by those in charge of the SHIPWNG (A). 641 defendants' vessel in starboarding instead of port- ing her helm, did not amount to barratry within the exception in the bill of lading, and also that a loss by collision caused by the negligence of the defendants' crew was not a loss by perils of tlie sea within the said exception. Grill v. The General Iron Screw Collier Company, Limited, 37 Law J. Rep. (n.s.) C. p. 205. Held, also, that the direction of the Judge was right, and that he was not bound to leave to the jury the question whether, though the collision could not have been prevented, the loss of the plaintiffs goods might not have been averted or mitigated if care had been taken on the part of the Araxes to have backed or slackened speed before the collision. Ibid. It is no objection to the admissibility of depo- iiitions taken under a commission, that the Com- missioner did not put any of the written interro- gatories or cross-interrogatories which were sent out with the commission, but took the evidence of the witnesses under a viv4 voce examination. Ibid. And, semble, any irregularity in the mode of taking the depositions cannot be a ground for re- fusing to admit them at the trial, but can only be taken advantage of by applying to the Court or a Judge at chambers to suppress the depositions. Ibid. 2. — A bill of lading of forty-seven casks of oil contained a memorandum in the margin, ■' not accountable for leakage." The casks of oil were, at the desire of the charterers, stowed in the same hold with rags and wool (being part of the cargo), whereby the casks became heated and leaked : — Held, that the condition that the shipowner should not be accountable for leakage, was not limited to the quantity of leakage, and that such memoran- dum protected the shipowner as to all leakage, unless caused by the negligence of the shipowner, and that ignorance that casks so packed would be- come heated and leak did not amount to negli- gence. Edward Wilhelm Ohrloff and others v. T. J H. BrUscall ^ Co. The Helene, 35 Law J. Eep. (n.s.) p. C. 63 ; Law Eep. 1 P. C. 231. 3. — Under a bill of lading in the ordinary form, whereby the shipowner undertakes to deliver goods in good order and well conditioned (the act of God, the Queen's enemies, fire, all and every other dan- gers and accidents of the seas, rivers, and naviga- tion, or whatsoever nature or kind soever, ex- cepted)," he is liable for damage done to the goods on board his ship by rats, though he has taken every precaution against them. Kay and another V. Wheeler and another. 36 Law J. Eep. (n.s.) P. C. 180; Law Eep. 1 P.O. 302. 4, — The plaintiffs shipped certain bales on board the defendants' ship under a bill of lading, which contained in its body an exception as to the damages and accidents of the seas and navigation, and in its margin the following exceptions : " The act of God, molestation of war, fire, machinery, boilers, steam and every other dangers and acci- dents of the seas, rivers and steam navigation of whatever nature and kind, excepted ; weight and contents unknown, free of breakage, leakage, and^ The plaintiffs brought an action for negligence of the defendants, whereby the goods were damaged. At the trial, conflicting evidence was given as to the state of the bales when shipped and unshipped. It also appeared that they were injured by oil ; that there was no oil in the cargo ; that they were stowed near an engine which was used for loading and unloading cargo, and on which oil was used ; that the voyage was without accident to ship or machinery, and that the only time when the bales were together was on the ship. The jury found that the bales were injured on board the ship by the defendants' negligence ; — Held, first, that the bill of lading did not ex- onerate the defendants from negligence ; secondly, that there was evidence of negligence to go to the jury. Czech and another v. The General Steam Navigation Company, 37 Law J. Eep. (n.s.) C. P. 3 ; Law Eep. 3 C. P. U. 5. — A cargo of nuts, stowed before the bill of lading was signed, was subsequently diftnaged in the course of the voyage by the carelessness of the master and crew, and the bill of lading provided against liability for their negligence : — Held, that the shipowner was not liable for the damage. The Duero, 38 Law J. Eep. (n.s.) Adm. 69 ; Law Rep. 2 Adm. & Ecc. 393. (b) Payment affreight. 6. — By a charter-party the cargo was made de- liverable " on being paid freight as follows : — The ship to have a lien on cargo for freight; 31. 10s. per ton of 50 cubic feet to be paid to captain or his agents on right and true delivery at port of dis- charge." The charterer shipped a portion of the cargo under a bill of lading which stated freight to be payable as per charter-party : — Held, tjiat the rate of freight only, and not the terms as to the lien mentioned in the charter-party, was incorpo- rated in the bill of lading, and that, therefore, the shipowner had no lien as against a bon4 fide in- dorsee for value of such bill of lading for the whole chartered freight, but only for the freight due on the goods mentioned in the bill of lading. Fry and others v. The Chartered Mercantile Bank of India, London, and China, 35 Law J. Eep. (n.s.) C. P. 306 ; H. & E. 858 ; Law Eep. 1 C. P. 689. 7. — F & Co. requested the defendants to pur- chase, through the defendants' branch house in Calcutta, a quantity of cotton on their (F & Co.'s) behalf, and to ship it for Liverpool on board two of F & Co.'s ships. By arrangement goods shipped on account of F & Co. by the defendants' house at Calcutta were to be shipped at a nominal rate of freight. One of the ships was addressed to the defendants' Calcutta house, as agents for F & Co., and having arrived at Calcutta a quantity of cotton, in pursuance of the order ol F & Co., was shipped in her, for which the captain signed bills of lading making the cotton deliverable to order of the Cal- cutta house, and stating it to be " freight free on owners' account." The ship, while on her voyagd to Calcutta was sold by F & Co., and became the property of the plaintiffs. No notice of this had reached the captain or the defendants when the M-i SHIPPING (A). shipment was effected. When the ship arrived at Liverpool, F & Co. having become bankrupt, the defendants, to whom tho honse at Calcutta had in- dorsed the bill of lading, claimed to receive the cotton without paying any freight to the plaintiffs, in accordance with the terms of the bill of lading. The goods were given up by arrangement, and an action commenced by the plaintiffs to recover freight from the defendants : — Held, that the terms of the bill of lading, under which the goods were shipped, were binding on the plaintiffs, and that no freight was payable by the defendants. The Mercantile and Exchange Bank, Limited, v. Glad- stone and others, 37 Law J. Eep. (n.s.) Ex. 130; Law Eep. 2 Ex. 233. (c) Indorsement of. (1) Evidence ef. 8, — ^An action was brought on a bill of lading, by which the defendants promised A to deliver certain goods safely, and which had been indorsed by A to B and by B to the plaintiff; and the plaintiff proved that A indorsed to B, and that B indorsed to him the plaintiff for value: — Held, that there was sufficient evidence that there was such an indorsement of the bill of lading as trans- ferred the property in the goods to the plaintiff, and vested in him all rights of suit. Vracachi v. The Anglo-Egyptian Navigation Company, 37 Law J. Eep. (N.s.) C. P. 71 ; Law Eep. 3 C. P. 190. (2) Effect of: right to sue. 9.— The plaintiff having shipped goods on board the defendants' vessel in the port of London, upon the terms of a bill of lading given by the defendants, by which the goods were made deliverable at Bombay to the plaintiff or his assigns, indorsed the bill of lading to A B, before the arrival of the ship at Bombay, as a pledge for moneys advanced to the plaintiff. Such moneys having been afterwards repaid, A B re-indorsed the bill of lading to the plaintiff, but not until after the goods had arrived at Bombay and had been delivered there to a wrong person : — Held, that the plaintiff was entitled to sue for such wrong delivery, although the same took place whilst A B was the holder of the bill of lading, as by such re-indorsement the plaintiff was re- mitted to his rights under the original contract with the defendants. Semble— That by the Bills of Lading Act, 18 & 19 Vict. c. Ill, sect. I, the plaintiff, as such in- dorsee, even if he had not been a party to the original contract, would have been entitled to sue for its breach. Short v. Simpson and others, 35 Law J. Eep. (n.s.) C. P. 147; H. & E. 181 ; Law Eep. 1 C. P. 248. 10. — To a declaration for freight payable as per charter-party, framed on a bill of lading, the consignee pleaded that before the arrival of the ship he indorsed the bill of lading to W & K, the terms of the indorsement being, " Deliver to W & K, or order, looking to them for all freight, with- out recourse to me " ; and that the plaintiffs accepted the indorsement, and delivered the goods in pursuance thereof to W & K : — Held, on appeal from the Court of Exchequer, 36 Law J. Eep. (n.s.) Ex. 6 ; 4 Hurl. & C. 674 ; Law Eep. 2 Ex. 37, that it was a proper question for the jury (with the view of ascertaining whether the plaintiffs had consented to discharge the defendant from his lia- bility to pay freight) whether the plaintiffs' ship- master had seen and accepted the indorsement ; and that it was immaterial, for the purpose of proving the plaintiffs' assent, whether the indorse- ment was there or not if the defendant could not prove that the master saw and accepted it. Lewis and others, v. M'Kee, 38 Law J. Eep. (n.s.) Ex. 62 ; Law Eep. 4 Ex. 58. 11, — Indorsees of a bill of lading of goods con- signed to them for sale had made advances of money upon the bill of lading: — Held, that to entitle the indorsees to sue for damage done to the goods mentioned in the bill of lading it is not necessary that all the property in the goods should pass to them. The Figlia Maggiore, 37 Law J. Eep. (n.s.) Adm. 52 ; Law Eep. 2 Adm. &Ecc. 106. 12. — A cargo of timber was shipped to be unladen at S, "at the usual place of discharge, and according to the custom of the port." On arriving at S the vessel at once proceeded to the South Dock in S, and was being moored there when the consignees' agent directed the master to remove her to the Gill Dock in 8, which the master refused to do. Both docks were usual and customary places of discharge: — Held, that the master was not bound to lie in the river waiting for instructions, and was justified in at once moor- ing in the South Dock, but that having received the instructions to discharge his cargo in the Gill Dock, he was bound' to obey them. The Felix, 37 Law J. Eep. (n.s.) Adm. 48 ; Law Eep. 2 Adm. & Ecc. 273. The bill of lading had been indorsed to P & Co., who had agreed to sell the cargo to B & Co., but the purchase-money had not been paid : — Held, that P & Co. were proper parties to sue in respect of a breach of the contract for delivery of the cargo. Ibid. 13.^N was in the habit of consigning goods to the plaintiffs for sale, and the plaintiffs from time to time accepted their bills and accredited him with the proceeds of the sale of the goods. N being at the time indebted to the plaintiffs upon the account current between them, consigned a cargo of sugar to the plaintiffs, which was de- livered in a damaged state : — Held, that as con- signees of the cargo and creditors of N the plaintiffs were entitled to sue in the Admiralty Court for damage by reason of negligence or breach of duty; and, semble, also as mere con- signees, even though no property in the goods passed to them. The Nepoter, 38 Law J. Eep. (n.s.) Adm. 63 ; Law Eep. 2 Adm. & Ecc. 375. Held, also, that the damage being caused by the insufficient drainage of the ship, and not by the usual leakage of the sugar, the plaintiffs were entitled to recover. Ibid. * {d) Evidence. 14.— Sect. 3 of the Bills of Lading Act, 18 & 19 SHIPPING (A). fliS Vict. c. Ill, only applies to persons who have actually signed bills of lading;, therefore the owners of a ship are not estopped from shewing that a statement of weight contained in a bill of lading of goods shipped, signed by the ship's agent is incorrect. Jessel v. Bath and another, 36 Law J. Eep. (n.s.) Ex. 149 ; Law Eep. 2 Ex. 267. A bill of lading for manganese shipped on board stated the weight in writing, but conbHned a printed clause, "weights, contents and value unknown." Semble — That the person signing the bill of lading would not be concluded from shewing that the written statement of weight was erroneous. Ibid. 15. — The 3rd section of the "-Act to amend the Law relating to Bills of Lading " enacts that in the hands of a consignee or indorsee for value, without notice, they shall be conclusive evidence against the master or person signing them that the goods were shipped, though, in fact, they were not ; "provided that the master, &c. may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder or some person under whom the holder claims." The shipper having bought certain bales, his vendor put them on board ; a dispute arose between the latter and the mate as to number shipped ; the mate gave a receipt for the larger number, with a note thereon, which by mistake stated that four "over" were in dispute, the master on seeing this note signed a bill of lading for the larger number, with a note four " more " in dispute, the plaintiif, as indorsee of the bill of lading claimed to be entitled to at least this larger number : — Held, that the taking such receipt by the vendor was evidence for the jury of fraud in him, and that the shipper could not separate himself from the effect of his acts. Valieri and another v. B&yland-, 36 Law J. Eep. (n.s.) C. P. 216 ; Law Eep. 1 C. C. E. 382. (e) Delivery of goods. 16. — In actions by two assignees of a bill of lading under section 6 for not delivering, the first assignee was held entitled, notwithstanding fraud on the part of his vendor in getting the bill of lading, of which he had no notice, and the ship was condemned in costs notwithstanding the conflicting claim of the second assignee. The Argentina, Law Eep. 1 Adm. & Ecc. 370. 17. — Sixty-five pipes of lemon-juce were shipped on board the defendants' ship to be carried to London, under two bills of lading, drawn to order, and containing the following clause: — "Simul- taneously with the ship being ready to unload the above-mentioned goods, or any part thereof, the consignee of the said goods is hereby bound to be ready to receive the same from the ship's side ; .... and in default thereof, the master or agent of the ship is hereby authorised to enter the said goods at the Customs House, and land, warehouse, or place them in lighter, at the risk and expense of the said consignee." The ship arrived in London, and the plaintiff, who was the consignee of the said goods, was not ready till fifteen pipes had been landed ; being then ready, he demanded delivery of the residue, but the master, although no additional expense woxild have been incurred, refused to deliver to him, and landed the residue at his expense, claiming a right so to do as he was not ready before any goods were loaded: — Held, that the master was wrong, and that the plaintiif was entitled to have the residue delivered to him both on the construction of the contract, and of Stat. 26 & 26 Vict. c. 63, s. 67, sub-section 6. Willson and another v. The London, Italian and . Adriatic Steam Navigation Compatm/, Limited, 35 Law J. Eep. (n.s.) C. P. 9 ; H. & E. 29 ; Law Rep. 1 C. P. 61. Bight to refuse delivery on ground of non- acceptance of bill of lading. [See Bill OF Exchange, 8."] (/) Pledge of 18. — W, the consignee in this country of a cargo shipped from India, before he had taken up his ac- ceptances on account of the cargo, obtained from the agents of the consignors, as they alleged by a mistake and without their authority, the bill of lading of the cargo, and pledged it with the plain- tiff's as a security for bon& fide advances made to him by them. Before the cargo was paid for, W was adjudicated a bankrupt : — Held, that the plain- tiffs, as bona fide assignees for value from W, were entitled to have the benefit of their security as against the consignors of the cargo. Coventry v. Gladstone, 37 Law J. Eep. (n.s.) Chanc. 30 ; Law Eep. 4 Eq. 493. Semble — There is no custom of merchants not to deliver the bills of lading of goods to vendors before they have taken up their acceptances on ac- count thereof. Ibid. 19. — Cotton was shipped in India for London. By the order of the consignee it was entered for delivery at a sufferance wharf at the port of Lon- don, and on its arrival it was deposited there, sub- ject to stoppage for freight. The master had signed the bill of lading in three parts. After the cotton was so deposited the consignee pledged two of the three parts of the bill of lading with the plaintiff (who was not aware the cotton had arrived in port) as security for an advance made by him , He subsequently pledged the third part with the defendant as security for another advance made by him. The second pledgee was not at that time aware of the advance the plaintiff had made. As soon as he found it out (the stoppage for freight having in the meantime been removed), he ob- tained possession of the cotton which he sold. The plaintiff then sued for the amount of the advance made by him: — Held (aflirming the decision of the Court of Exchequer Chamber, 36 Law J. Eep. (n.s.) C. p. 389 ; Law Eep. 2 C. P. 661, and the Court of Common Pleas, 36 Law J. Eep. (n.s.) C. P. 48 ; Law Eep. 2 C. P. 36), that notwithstand- ing that the goods had been landed and ware- housed, the freight being then unpaid, the bill of lading was in force at the time of its deposit with the plaintiff, just as if the goods had been at sea also, as the plaintiff was the first pledgee for value, the handing over to him of the bill of lading vested bii SHIPPING (B). in him the property in the goods which it repre- sented ; and all subsequent dealings with the other part or parts of the bill of lading were subordin- ate to that first dealing by which the plaintiff had already obtained possession of his part of the bill of lading. Therefore he was entitled to recover from the defendant the amoxxnt of his advance with interpst. Barber and others v. Meyerstein, 39 Law J. Eep. (n.s.) C. p. 187 ; Law Hep. 4 E. & I. App. 317. (B) BOTTOMEY. (a) Validity of bond. (1) Notice to owner. 1. — The master of a ship is, of necessity, the agent of the owner of cargo; but he is bound before hypothecating the cargo, to communicate with the owner if it be reasonably within his power to do so. Semble— For the purpose of giving him the opportunity of advancing the money, or of im- lading the cargo. The Lizzie, Law Eep. 2 Adm. & Ecc. 254. 2. — A vessel being in distress at Cuba, the agents of the charterers telegraphed to that eifect to the charterers at Liverpool, who authorised their agents to advance the necessary funds on bottomry. The owner resided in the same town as the charterers, and the charterers knew where he lived, but the owner was insolvent : — Held, that the charterers should have communicated with the owner, and that in the absence of notice to him the bond was invalid. [See next case.] The Panama, 38 Law J. Rep. (n.s.) Adm. 67 ; Law Rep. 2 Adm. & Ecc. 390. 3. — In no case can notice of the intention to raise money by bottomry be dispensed with. Charles Barron and another, Appellants, v. George Charles Stewart, respondent. The Panama, 39 Law J. Rep. (n.s.) Adm. 37 ; Law Rep. 3 P. C. 199. Until an owner has been judicially declared in- solvent, he is entitled to notice. But if an owner has been judicially declared insolvent, the as- signees are entitled to notice. Ibid. 4. — It is as much the duty of a master to give, or attempt to give, notice to the ownprs of cargo as to the owners of ship before executing a bot- tomry bond. The Karnak, 37 Law J. Rep. (n.s.) Adm. 41 ; Law Eep. 2 Adm. & Ecc. 289. Though the debts which a master, in need of repairs in a foreign port, has incurred may be per- sonal, he may borrow money upon bottomry of ship, freight and cargo to pay them from any one not his creditor. Ibid. In the absence of evidence to the contrary, it is presumed that a foreign lender makes advances in contemplation of bottomry; and this presumption is increased where the lex loci empowers the lender to arrest the ship in satisfaction. Ibid. Difference between a loan secured on freight and advances of freight. Ibid. (2) Necessity: advances. 5. — The existence of the "necessity" which validates the hypothecation of cargo by bottomry is to be ascertained by evidence in the usual manner ; and the meaning of the term " necessity" in respect of hypothecation by the master is ana- logous to its meaning in other parts of the law. Droege ^ Company, appellants, v. Stuart and another, respondents. The Karnak, 38 Law J. Eep. (N.8.)Adm. 57 ; Law Rep. 2 P. C. 505. Any combination of events which would prevent the completion of the voyage with profit, unless money should be obtained by bottomry, would raise the question whether there was need for bottomry in such high degree as to create a neces- sity. Ibid. In a suit on a bottomry bond hypothecating "ship, cargo, and freight," it appeared that the master had before bottomry obtained advances on account of freight from the charterers : — Held, that the obligee in bottomry had no claim to freight so advanced by the charterers prior to bottomry, pro\'ided the advances were made bon4 fide. Ibid. 6. — A & Co. agreed to purchase at Akyab cargoes of rice for F & Co., A & Co. to be secured by hypothecation of the bills of lading and a fixed freight of 5«. per ton. Whilst the ship E P was loading one of the cargoes, A & Co. advanced about 540Z. for ship's disburspments. but, upon hearing that F & Co. had stopped payment, in- duced the master to execute a bottomry bond both for the advances already made, and also for a further sum of small amount ; — Held, that the first advances were made partly upon personal security, and partly upon the margin of freight, and could not therefore be secured by a subsequent bottomry. The Empire of Peace, 39 Law J. Rep. (n.s.) Adm. 12. Held also, that the further advances were too trivial to render the bond valid with respect to them. Ibid. (3) As against mortgagee. 7. — In a contest between a bottomry bond- holder and a. mortgagee of the ship it is no ob- jection to the validity of the bond that the voyage was undertaken in fraud of a contract between the owner and mortgagee, and without a certificate of the ship's registry, the bondholder being igno- rant of such facts. The Mary Ann, 35 Law J. Rep. (n.s.) Adm. 6 ; Law Rep. 1 Adm. & Ecc. 8. (i) Loss of ship. 8. — A bottomry bond contained a stipulation that, •■' in case of the loss of the ship, such an average " should be paid " as by custom shall have become due on the salvage, or if on the said voyage the said ship shall be utterly lost, east away or destroyed," then that the bond should be void. The vessel subsequently was compelled to put into another port for repairs, and there con- demned and sold, and the proceeds were remitted to this country:— Held, that the whole of the proceeds were liable for satisfaction of the bond. The Great Pacific, 38 Law J. Rep. (n.s.) Adm. 14; Law Rep. 2 Adm. & Ecc. 381. 9. — The condition of a bottomry bond provided that the obligation should be void if the obligors should pay, "in case of loss of the ship or vessel, such an average as by custom should have become SHIPPING (B), (D). 545 due on the salvage, or if on the said voyage the said ship or vessel should be utterly lost, cast away or destroyed," in consequence of the perils of tie seas, &o. The vessel during her voyage was obliged to put into port in a damaged state, and was there sold for a sum less than the amount of the bond, under circumstances which it was ad- mitted would, as between usurers and assured, have constituted a constructive total loss:— Held, that, upon the true construction of this condition, the loss was not " a loss " witliin the meaning of the condition, and that the holders of the bond were entitled to the whole proceeds of the sale of the ship. Thomas Steven v. John Broomfield and another. The Great Pacific, 38 Law J. Hep. (n.s.) Adm. 46 ; Law Eep. 2 P. C. 616. (c) Conflict of laws. 10. — The rights of parties under a contract not expressly provided for thereby, but arising inci- dentally within the sphere of the relation created by it, are to be determined by that general law which the parties intended to govern the trans- action, or rather by which they may justly be pre- sumed to have bound themselves. Lloyd v. Gui- bert and others, 35 Law J. Eep. (n.s.) Q. B. 74 ; 6 Best & S. 100; Law Eep. 1 Q. B. 115. Frim& facie, the law of the place where a con- tract is made is that which the parties intended, or ought to be presumed to have adopted, as the footing upon which they dealt, and such law ought to prevail in the absence of circumstances indi- cating a different intention; but a contract of aifreightment made between a charterer and own- ers of the ship, being persons of different nation- alities, in a place where both of them were foreign- ers, to be performed partly there by the ship breaking ground in order to start for the port of loading, a place where both parties would also have been foreigners ; partly at the latter port, by taking the cargo on board ; and partly on board the ship at sea, subject there to the laws of the country of the ship ; and partly by final delivery at the port of discharge, is to be construed by the law of the nation of tbe ship. Ibid. [And see Conflict op Laws (B).] {d) Bights of bondholder generally. Priority of master's claim for wages. [See infra (K) 2, 4.] Priority over claim for necessaries. [See infra (N) 5.] (C) Cargo. Delivery of, in terms of bill of lading. [See supra (A) (e).] Delivery of, on board ship. [See infra (F).l Sale of. [See Sale, 1] ; Conteact, 8, 10.] Loading of. [See infra (D) (a).] (D) Chaetbb-pabtt : Consteuction of. (a) Loading of cargo, 1. — The provision " charterer's stevedore to be employed by ship " means, that if the charterer appoints one, he is to be employed ; but if the Digest, 1865-70. charterer does not appoint one, the master must load the ship properly, according to the charter- party. The Anglo-African Company, Limited, v. Lameed and others, 36 Law J. Eep. (n.s.) C. P. 145 ; H. &E. 216; Law Eep. 1 C. P. 226. 2. — The defendants guaranteed to the plaintiffs' vessel a sum of 9002. gross freight, on the under- standing that the vessel should be placed at once on the most profitable charter or trade procurable, and that the vessel would carry 300 tons of what- ever cargo it might take on board, or should it not take 300 tons, that a proportionate reduction of the guarantee should be made for any proper quantity of cargo it might take. The plaintiffs were not able to procure a gross freight of 900Z. : — Held, affirming the judgment of the Court of Common Pleas, 36 Law J. Eep. (n.s.) C. P. 314, that the breach accrued at the place of loading, and that the plaintiffs were entitled to recover on the guarantee, though the vessel was lost on the voyage. Carr and another v. The Wallachian Pe- troleum Company, Limited, 36 Law J. Eep. (n.s.) C. P. 236 ; H. & E. 787 ; Law Eep. 2 C. P. 468. 3. — By a charter-party entered into between the plaintiff, the owner, and the defendant, the charterer of the ship E M, it was agreed that the said ship sliould proceed to P, and there load " a full and complete cargo of cotton " with a certain amount of sugar as ballast. The ship proceeded to P, and after a portion of the cargo had been loaded and while another portion was in a lighter lying alongside ready for loading, the ship caught fire accidentally, and the portion of the cargo on board was so injured that the master necessarily sold it. He forwarded the portion alongside to its destination by a different ship. After the ship had been repaired, the plaintiff tendered it to the defendant's agents and required them to load the residue of the cargo, which they refused to do : — Held, that the defendant was not exonerated by the circumstances from his obligation to complete the loading of a full and complete cargo. Jones V. Holme, 36 Law J. Eep. (n.s.) Ex. 192; Law Eep. 2 Ex. 335. 4. — A charterer was to load at Archangel a full and complete cargo of oats or other lawful mer- chandise, which the shipowners were to deliver "on being paid freight at the rate of 4s. &d. per 3201bs. for oate, and if any other cargo be shipped in full and fair proportion thereto, according to the Lon- don Baltic printed rates." The cargo shipped con- sisted of flax and other light articles (all men- tioned in the London Baltic rates), i.e., as much as the ship could safely carry of such light articles ; which rendered the shipment of 120 tons of bal- last necessary: — Held, that the cargo shipped was a fidl and complete cargo of articles consti- tuting " lawful me chandise " within the meaning of the charte -party, and that the defendant was not liable to pay freight as on a full cargo of oats or of other merchandise ejusdem generis. The Southampton Steam Colliery Company v. Clarke, 38 Law J. Eep. (n.s.) Ex. 54 ; Law Eep. 4 Ex. 73. Affirmed in the Exchequer Chamber, 40 Law J. Eep. (n.s.) Ex. 8. 5, — By a charter-party the charterers were to 4 A 616 SHIPPING (D), (E). loud " a full and completo cargo of sugar in cases oi other lawful merchandise, with suiBcient bags lor stowage, and the freight was to be at a certain rate if the cargo " should besugar in eases, with suf- ficient bags for broken stowage," " and forother pro- duce a rate proportionate to sugar in cas6S,with suffi- cient bags for broken stowage" : — Held, that the ob- ligation on the charterers to load bags of sugar for broken stowage did not attach to any other cargo than sugar in eases. Duckett v. Satterfield, 37 Law J. Eop. (n.s.) C. p. 1 44 ; Law Eep. 3 C. P. 227. (6) Exceptions and limitation of liability. 6. — A charter-party, by which it was agreed that the cargo should be loaded and discharged with all despatch, contained the following clause : — " The charterer's liabiHty on this charter to cease when the cargo is shipped (provided the same is worth the freight on arrival at the port of discharge), the captain having an absolute lien on it for freight, dead freight and demurrage, which he or owner shall be bound to exercise." The charterers having shipped a cargo worth the freight on arrival at the port of discharge :— Held, in an action on the charter-party, that they were pro- tected by the above clause from liability to the shipowner for not loading the ship in due time according to the charter-party. Bannister v. Breslauer, 36 Law J. Eep. (n.s.) C. P. 195 ; Law Eep. 2 0. P. 497. 7. — By a charter-party the plaintiff's ship was to load at Sunderland, from the charterer, in regu- lar and customary turn (" except in case of riots, strikes, or any other accidents beyond his control, which may prevent or delay her loading), a fuU and complete cargo of coals." In an action against the charterer for not loading the ship within the time agreed upon according to the charter-party : — Held, that a snow storm was not "an accident " within the meaning of .the above exception, and that, therefore, it was no defence to plead that the defendant was prevented from loading the shjp by accidents beyond his. control which delayed the loading,' viz., by the great inclemency of^ the weather, and by the snow being from natural causes, and without the defeadant being able to prevent it, so deep on the ground as to render it impossible to bring the agreed cargo to the place of shipment. Fenvnck v. SchmeU, 37 Law J, Eep. (n.s.) C. p. 78 ; Law Eep. 3 C. P. 313. 8. — By an agreement, in which C was de- scribed as vendor and P as purchaser, C agreed to thip a cargo of ice, and on the same being shipped, to forward to P bills of lading, on receipt of which P was to take upon himself all risks and dangers of the seas, &e. ; and P agreed to buy and receive the ice on its arrival at the ordered port, taking the ice from alongside the ship and paying for it in cash on delivery at the rate of 20s. per ton weighed on board during delivery : — Held, by Martin, B. and Channell, B., that upon the true construction of the agreement, the effect of the clause as to risks and dangers of the seas, was merely to save C from liability for non-delivery, and not to bind P to insure the cargo on receiving the bill of lading ; and that, the ship and cargo having been lost on the voyage through perils of the seas, P was not liable to pay C the price or the value of the cargo. Castle v. Flayford, 39 Law J. Eep. (n.s.) Ex. 150 ; Law Eep. 5 Ex. 165. Held, contra, by Cleasby, B., that P ought to have insured on receipt of the bill of lading, and that he was liable to pay Cthe value of the cargo. Ibid. (c) Demotion. 9. — The plaintiflfs, who were owners of an un- finished steamer at Newcastle, chartered her to the defendants (who knew her state) by a charter- party which provided "that the said ship, being tight, &c., should, with all convenient speed (on being ready), having liberty to take an outward cargo for owners' benefit direct or on the way, proceed to Alexandria," and there take a cargo for England. When the time for a trial trip came the builders objected to her returning to Newcastle, on^ account of the dangerous bar ; the plaintiffs therefore put on board ballast and a cargo for London, where she was to be completed and all defects were to be put right, instead of in New- castle. The ship arrived in London, was put right, and no delay occurred by these proceedings ; she then, on her voyage out, took a cargo to Constan- tinople, which caused her to arrive at Alexandria a few days later than she otherwise would have done. The defendants refused to furnish a car^o, whereupon the plaintiffs brought their action ; — ■ Held, that there had been no breach of any condi- tion precedent by the plaintiffs ; that they were entitled to succeed in their action ; and that the defendants had their remedy by cross-action for any damage that had accrued to them. M' Andrew and othersy. Chappie and another, 35 Law J. Eep. (n.s.) C. p. 281 ; H. & E. 745 ; Law Eep. 1 C. P. 643. {d) Payment affreight. 10. — A charter-party contained the following stipulation as to payment of freight: — "Freight to be paid one-third in cash on arrival at B, and two-thirds on right delivery of the cargo of the said ship " : — Held, that delivery was not a con- dition precedent to the right to payment of the two-thirds ; that the delivery and payment were concurrent acts, and that to entitle the shipowner to recover the two-thirds it was sufficient to shew that he was ready and willing to deliver. Paynter V. James, Law Eep. 2 C. P. 348. Payment of freight according to "net weight delivered" [See infra (P) 1.] Stamp on charter-party. [See Stamp, 1.] (E) Collision and Damage. (a) Who to Uame. 1. — Evidence of an order as to the lights given twelve hours before the collision is admissible, but not of conversations with respect to them. The Aleppo, 35 Law J. Eep. (n.s.) Adm. 9. A steam-vessel steering N.E. ^ N. and a schooner close-hauled on the starboard tack and heading W. came into collision. The answer on behalf of the owners of the steam-vessel alleged SHIPPING (E). 547 that the schooner was seen three-quarters of a mile off on the staj-'boai'd bow, but that she had no lights, and was mistaken for a vessel going the same way as the steam-vessel. All the crew of the schooner were drowned, and the evidence for the plaintiffs consisted of one witness as to the state of the schooner's lights some hours before the collision. The defendants called no witnesses : — Held, that the plaintiffs were not bound to call witnesses from the defendants' vessel ; that, from the admissions in the answer, the schooner was seen in ample time for the steam- vessel to have avoided her, and that therefore the steam-vessel was alone to blame for the coDision. Ibid. 2, — In a cause of collision between a sailing ship and a steamer, although the sailing ship may be found to have been guilty of misconduct, or not to have observed the sailing regulations, yet the steamer will be held culpable if it appears that it was in her power to have avoided the col- lision. WUliam Inman v. F. Reck and others. The City of Antwerp, The Friedrkh, 37 Law J. Eep. (N.s.)"Adm. 25 ; Law Eep. 2 P. C. 25. It is the duty of a steamer where there is risk of collision, whatever may be the conduct of the sailing vessel, to do everything in her power that can be done consistently with her own safety in order to avoid a collision. Ibid. Where a steamer is charged for omitting to do something which she ought to have done, there must be clear proof, first, that the thing omitted to be done was clearly within the power of the steamer; secondly, that, if done, it would in all probability have prevented the collision ; and, thirdly, that it was an act which would have occurred to any officer of competent skill and experience in com- mand of the steamer. Ibid. 3. — Two vessels, both close-hauled on the same tack, were beating to windward, the one ahead and a little to windward of the other. The leading vessel being obliged to go about, the other kept her reach, and they came into collision: — Held, that the following vessel not having gone about as she ought when she saw the leading vessel go about, was to blame for the collision. TheFriscilla, Law Eep. 3 Adm. & Ecc. 125. 4. — A ship's anchor got entangled with an electric cable, and the cable was cut by order of the master: — Held, that under the circumstances the master was guilty of a want of nautical skill, and that the Court had jurisdiction to entertain a suit against the ship. Ship condemned in damages and costs. TTie Clara Killam, 39 Law J. Eep. (n.s.) Adm. 50; Law Eep. 3 Adm. & Ecc. 161. 5. — The L A, in charge of a pilot and in tow of the steam-tug E, was coming up the river Thames, and the M under full sail was crossing. The E attempted to tow the'^L A ahead of the M, but the L A and M came into collision : — Held, that the etcam-tug was 1^0 blame for attempting to tow across the bows of the M, and the pilot of the L A for not ordering the E to slip the tow-rope in time to avoid the collision. And a suit by the owners of the LA to condemn the steam-tug E in the damage done to both the M and L A, was dis- missed, but without costs. The Energy, 39 Law J. Eep. (n.s.) Adm. 25 ; Law Eep. 3 Adm. & Ecc. 48. 6.— ;In cross-actions for collisions at sea, the main question at issue depended on the direction of the wind at the time of the collision. The Judge of the Admiralty, assisted by Trinity Masters, was of opinion that the evidence was so contradictory and unsatisfactory that he found both ships to blame. On appeal, it appearing, as in the Court below, that the log-book of the S had been altered as to the entry of the wind — from N. to N.N.E. — the evidence of the master and others of the crew, that the wind was K.N.E., could not be relied upon, against the evidence of the master of the other ship, the H, that the wind was N.W., and this agreeing with the probabilities and the other facts of the case, the Privy Council reversed the decision, and pronounced the S to blame, and liable in damages and costs. The Singapore and the Hebe, Law Eep. 1 P. C. 378. (J) Sailing Bides. (1) Ships crossing. 7. — Two sailing ships held both to blame for collision under the latter part of Article 1 2 of the Sailing Eules of 9th January, 1863, the one to windward," having the wind aft, for not keeping out of the way ; the other to leeward, for not, ac- cording to Art. 18, keeping on her course, having ported her helm not to avoid immediate danger. The Spring, Law Eep. 1 Adm. & Ecc. 99. 8. — Eule 14 of the Sailing and Steering Eules provides that " K two ships under steam are cross- ing, so as to involve risk of collision, the ship which has the other on her own starboard side, shall keep out of the way of the other." The ap- pellants' ship, in proceeding down a river, and intending to keep her course ; in order to round a bend in the river, had her head slightly inclined BO as to exhibit her masthead and portlight only to the respondents' ship, which was proceeding up the river : — Held, reversing the judgment of the Admiralty Court, that the vessels were not cross- ing within the meaning of the above rule. That the fact that the portlight only of the appellants' ship was seen by the respondents was not conclu- sive evidence that the vessels were crossing ; that the relative position of the vessels was not only to be regarded but also the place in which the vessels were situated. The General Steam Navi- gation Company v. Thomas Hedley and others. The Velocity, 39 Law J. Eep. (n.s.) Adm. 20; Law Eep. 3 P. C. 44. (2) Departure from rule. 9. — Where two ships under steam are meeting end on, the helms of both should be put to port ; but under Art. 1 9 of the Sailing Eules, 9th Janu- ary, 1863, a departure from Art. 13 may be justi- fied by shewing that it was necessary to avoid immediate danger. Circumstances under which the onus probandi as to this was not considered satisfied. The Concordia, Law Eep. 1 Adm. & Ecc. 93. 10. — If a ship bound to keep her course under 4 a2 648 SHIPPING (E), (G). Eule 18 (Sailing Rules, 1863) justifies hop depart- ure from that rule under the words of Eule 19, she takes upon herself the obligation of shewing both that her departure was, at the time it took place, necessary in order to avoid immediate danger, and also that the course adopted by her was reasonably calculated to avoid that danger. The Owners of the Agra v. TTie Owners of the Eli- zabeth Jenkins. The Agra and the Elizabeth Jen- kins, 36 Law J. Eep. (n.s.) Adm. 16 ; Law Eep. 1 P. C. 501. (c) Lights. 11. — A vessel with an anchor down, but not held by or under the control of it, is under way so as to render it obligatory to exhibit her coloured lights. The Esk, The Gitana, 38 Law J. Eep. (n.s.) Adm. 33 ; Law Eep. 2 Adm. & Ecc. 350. 12. — A barque's side lights were so placed in the mizen rigging that the centre of the lights did not project beyond the gunwale. They were two feet six inches within the broadest part of the vessel, and at a distance of more than 350 feet with the masts in line they could not be seen from a wifldow forty feet above the deck of another vessel : — Held, not to be a sufficient compliance with the regulations as to lights. The Germania, 37 Law J. Eep. (n.s.) Adm. 59. The Court has power under the Admiralty Court Act, 1861, s. 18, to order an inspection of a vessel by Trinity Masters, and will direct that they be attended by the proctors, and a viewer on behalf of each party. Ibid. [And see No. 1 supra.] {d) lAmitation of liability. 13. — The liability of a shipowner in respect of loss of life to the seamen of a vessel run down by his ship extends to and is measured by 15^. (and not 8^.) per registered ton of such ship. Glahclm V. Barker, 35 Law J. Eep. (n.s.) Chane. 259 ; Law Eep. 1 Chanc. 223. The statutes 17 & 18 Vict. c. 104, ss. 504, 505, and 17 .& 18 Vict. c. 120, s. 4, were intended to modify, but not to repeal, 9 &-10 Vict. c. 93; and shipowners remained liable under the latter statute, except so far as their liability was limited by the former statutes, and, subsequently, by 25 & 26 Vict. c. 63. Ibid. Effect of the repeal of a statute which modified a former statute considered. Ibid. Decree of the Master of the EoUs, 35 Law J. Eep. (n.s.) Chanc. 657 ; Law Eep. 2 Eq. 598, af- firmed. Ibid. 14. — Cause of collision and liability admitted by the defendants. Petition by the defendants, the owners, to limit their liability to fil. per ton under this section. One of the owners was master of the ship, but at the time of the collision the master was below, the ship being in charge of a coasting pilot, and the second mate : — Held, the master was not bound to be on deck under the circum- stances, and that the damage occurred without the " actual fault or privity " of the master-owner, and that the owners were entitled to, the limited liability. The Obey, Law Eep. 1 Adm. & Ecc. 102. 15. — In all cases of limitation of liability for damage done by any ship, interest will be given upon the limited amount from the date of the col- lision. The Northumbria, 39 Law J. Eep. (n.s.) Adm. 3 ; Law Eep. 3 Adm. & Ecc. 24. (e) Lien for damage. 16.— In March, 1866, the French vessel C A having come into collision with the E, the master of the C A gave in satisfaction of the damage a bill of exchange for 82?. 5s., payable on the arrival of the C A at her destined port of S in Scotland. The C A, instead of proceeding to S, went to Prance, where she was sold by the syndics of her owner's estate. In December, 1867, the vessel again came to England, and was arrested for the damage :— Held, that the lien for damage was not lost by laches or the subsequent sale of the vessel. The Charles Amelia, 38 Law J. Eep. (n.s.) Adm. 17 ; Law Eep. 2 Adm. & Ecc. 330. 17. — In a cause of damage a vessel damaged by the collision was arrested and subsequently re- paired, whereby her value was considerably in- creased: — Held, that she was only liable to arrest for her value at the time when she was arrested. The St. Olaf, 38 Law J. Eep. (n.s.) Adm. 41 ; Law Eep. 2 Adm. & Ecc. 360. [And see infra (H) 4, 5.] Liability for damage done in attempt to effect salvage. [See infra (K) 10.] Jurisdiction and practice of the Court of Admiralty in suits of damage and collision. [See Admiralty (A) (e), (C) (e).] (P) Deuvekt. It is not necessary, in order to render a shipowner liable for the loss of the goods of a shipper, that the goods should have been actually delivered on board the ship. The British' Columbia and Vancouver's Island Spar, Lumber and Saw Mill Company, Limited, v. Nittleshtp, 37 Law J. Eep. (n.s.) C. p. 235 ; Law Eep. 3 C. P. 499. In the absence of notice of the consequences which will ensue from a part of goods shipped being lost, and of any contract express or implied to be answerable for such consequences, the ship- per of such goods, on a part thereof being lost, is, over and beyond the sum necessary to replace it, only entitled as for the delay to receive interest on the said sum till payment, even though the rest of the goods have been rendered useless till the portion lost was replaced. Ibid. (G) Demtjeeage. 1.— Where a charter-party is silent as to the time within which the cargo is to be unloaded at the port of destination, the law implies that the merchant and the shipowner shall each use reason- able despatch in performing his part of the con- tract ; and where the landing of the cargo by the merchant is rendered impossible by a cause over which he ' hag no control, he is not liable to pay SHIPPING (G), (H). 649 damagesforthedelay. Ford and others v. Cotesworth OBf^anoiAeT-jSOLaw J. Eep. (n.s.)Q. B. 188; 10 Best & S. 991 ; Law Rep. 5 Q. B. 544. A ship sailing under a charter-party which was silent as to the number, of days to be allowed for unloading, arrived at a foreign port, and was de- tained beyond tlie usual time, owing to the refusal of the authorities to allow the cargo to be landed : — Held, affirming the judgment of the Court of Queen's Bench, 38 Law J. Eep. (n.s.) Q,. B. 62 ; 9 Best & S. 559 ; Law Rep. 4 Q. B. 127, that the merchant was not liable to pay damages for the delay, as he had not contracted that there should be none, and it had happened without fault on his part. Ibid. 2. — By a charter-party it was agreed that the plaintiff's vessel should proceed to Suliana or out- side in sufficient depth of water to load the ship, or so near thereto as she might safely get, and there load from the agents of the merchant a complete cargo of grain or seed at seller's option. Thirty running days to be allowed the merchants (if the ship be not sooner despatched) for loading and unloading, and ten days on demurrage, over and above the laying days at 61. per day. "De- tention by ice and quarantine not to be reckoned as laying days." The vessel proceeded to Suliana, and six of the lay days out of thirty elapsed without any of the cargo having been put on board. On the Seventh and for a long time after- wards, although the port itself and the sea im- mediately outside were free from ice, the river Danube from Suliana upwards as far as Galatz, whence the grain was to be brought to Suliana, a distance of 110 miles, was frozen over or so en- cumbered with ice as to be impassable for the lighters by which the grain was to be conveyed. There were no places for storing grain at Suliana, and Galatz was the nearest to Suliana of the storing places on the Danube from which grain was brought for shipment : — Held, affirming the judgment of the Court of Queen's Bench, 36 Law J. Rep. (N.s.) Q. B. 273 ; 8 Best & S. 639, that there was a detention by ice within the meaning of the charter-party, and that the conveyance by the river between Galatz and the ship at Suliana might be considered as a part of the act of loading, and that the case was the same as if the ice lay between the shore and the vessel in which the grain was to be loaded. Hudson y. Ede, 37 Law J. Eep. (n.s.) Q. B. 166 ; 9 Best & S. 480 ; Law Eep. 3 Q. B. 412. (H) Fbeight. [And see supra (D) (tZ).] (a) Payable before delivery. 1. — The defendants shipped a quantity of Port- land cement on the plaintiffs' ship to be car- ried from London to Sydney, under a bill of lading by which " freight was to be paid within three days after the arrival of the ship, and before the delivery of any portion of the goods." After the arrival of the ship at Sydney, and before the expiration of such three days, the ship was obliged to be sunk in order to extinguish an accidental fire which had occurred in her hold. When the ship was afterwards raised, the defendants' goods were found to be no longer existing as cement, and the consignees accordingly refused to accept them or to pay freight :— Held, that as the plaintiffs were not during the three days after their arrival of the ship at Sydney ready and willing to deliver the goods, they could not recover freight. Duthie and others v. Hilton and others, 38 Law J. Eep. (n.s,) C. P. 93 ; Law Rep. 4 C. P. 138. (b) Measv/rement. 2. — By a charter-party made in London between the plaintiff, a shipowner, and the defendants, Liverpool merchants, it was agreed that the plaintiff's ship should sail to Bombay for a cargo of cotton or wool, and, having loaded, should pro- ceed to London or Liverpool as ordered, and de- liver the same on being paid freight as follows, v^z., " 78«. per ton of fifty cubic feet delivered for cotton or wool." It is the practice at Bombay to compress the bales of cotton before shipment by machinery into the smallest possible space, and upon being unloaded at the port of discharge they expand considerably. The plaintiff claimed to be allowed to have the freight calculated, under the above charter-party, according to the measurement of the bales after being unloaded, and brought his action to recover a balance of freight still due to him according to this mode of calculation : — Held, affirming the judgment of the Court of Exchequer, 36 Law J. Rep. (n.s.) Ex. 49, that, upon the true construction of the cont'-act, the freight was pay- able on the measurement before shipment. Buckle V. Knoop, 36 Law J; Rep. (n.s.) Ex. 223 ; Lay Eep. 2 Ex. 333. (c) Freight pro raid. 3. — A ship and cargo were salved on the 2nd of October and arrested in the salvage suit on the 7th of October. The ship, which was not worth the dock dues, was abandoned to the dock authori- ties on the 24th of October, and the cargo, which had not been released, was, after notice to the owners, sold on the 16th of December; — Held, that the abandonment of the ship by the master was not a repudiation by him of his contract to carry the goods to the place of their destination ; that the owners of cargo by not procuring its re- lease waived their right to have the cargo tran- shipped; and that therefore the owners of the ship were entitled to pro rata freight. The Sob- lemstem, 36 Law J. Eep. (n.s.) Adm. 5 ; Law Eep. 1 Adm. & Ecc. 293. (d) Lien. (1) Against cargo in ship to blame for collision. 4.— AH the cargo on board of a vessel at the time of a collision belonged to the same owner, but only part of that cargo was on board when the vessel was arrested in the suit for the damage : Held, that the lien for the whole freight extended to every part of the cargo on board at the time of the collision. TTie Roecliffe, 38 Law J. Eep. (n.s.) Adm. 66 ; Law Eep. 2 Adm, & Ecc, 363. 530 gfiippma lU), (I). 6. — Cargo on board of a' ship to blame for col- lision can only be arrested to obtain payment of the freight due to the shipowner, and theretore if no freight has accrued, the Court will decree a re- . lease of the cargo. Cargo consigned to Hamburg was shipped on board a barque which came into collision with -a ship off Cornwall. The barque put into Plymouth, and was with her cargo arrested there, and re- mained under arrest. The consignees of the cargo declined to accept it at Plymouth, and the barque was subsequently held to blame for the collision. The Court decreed a release of the cargo without costs. TheFlora, 35 Law J. Eep. (n.s.) Adm. 15; Law Eep. 1 Adm. ; & Ecc. 45. (2) Freight payable in advance. 6. — M chartered the defendant's ship to carry a cargo of coal to Alexandria, where the same was to be delivered on freight being paid ; and the char- ter-party stipulated " the freight to be paid on unloading and right delivery of the cargo less ad- vances, in cash, at current rate of exchange ; one- half of the freight to be advanced by freighter's acceptance at three months on signing bills of lading ; owner to insure the amount and deposit with charterer the policy, and to guarantee the same." M accordingly gave his acceptance for the half freight, and a receipt on account of such freight as per charter-party was endorsed on the bill of lading, which bill of lading was signed by the captain and afterwards duly indorsed to the plaintiff for value. ~0n the arrival of the ship at Alexandria, M having in the meantime become in- solvent, the master refused to deliver the cargo to the plaintiff unless the whole of the freight was paid or guaranteed, although the acceptance given by M was not then due. A guarantee was then given by one ? for the plaintiff under protest, and the cargo was delivered, and B being afterwards compelled to pay the amount of sucii guarantee on the dishonour of M's acceptance, the plaintiff re- paid him : — Held, that the plaintiff was entitled to recover the half-freight from the defendant, as during the currency of M's acceptance the defend- ant had no lien for it, and the refusal to deliver the cargo was therefore wrongful. Tamvaco v. Simpson, 35 Law J. Eep. (n.s.) C. P. 196 ; H. & K. 374 ; Law Kep. 1 C. P. 363. (I) General Avekage. [And see Marine Insurance (K).] (a) What is the subject of. 1. — In consequence of a severe storm which the plaintiffs' vessel encountered, her deck cargo of timber, which was lawfully stowed on deck accord- ing to the terms of the charter-party between the plaintiffs and the defendant, the charterer, broke adrift, and knocked against the pumps, so that the captain was compelled, in order that the crew might work the pumps and to prevent damage to the bulwarks and pumps, and for the safety of the ship and all on board, to throw a portion of such cargo overboard: — Held, that such jettison was the subject of a general average contribution, from the plaintiffs to the defendant, it being both voluntary and to save all from the danger caused by the storm, which was common to the whole adventure. Johnson and another v. Chapman, 35 Law J. Rep. (n.s.) C. p. 23. 2. — A clipper sailing ship, fitted with an auxili- ary screw, being on her voyage from Melbourne to England, came into collision with an iceberg, and received such damage that her sailing power was practically destroyed. By means of her screw and her steam-power she reached Eio. The expense of repairing her at Eio would have been so great that the master properly determined to -have her temporarily repaired, so as to bring her home un- der steam. It was necessary for this purpose to purchase coals at Eio and at Payal, and the ship eventually reached home. The defendants were the owners of a quantity of gold on board the ship, and an action was brought against them by the shipowner to recover the contribution to gene- ral average alleged to be due from them in respect of the expense incurred in obtaining coals at Eio and at Fayal: — Held, that the action was not maintainable, as there was no right to charge this expense to general average. Wilson and others v. Bank of Victoria, 36 Law J. Eep. (n.s.) Q. B. 89 ; 7 Best & S. 290 ; Law Eep. 2 Q. B. 203. 3. — In order to establish a claim to general average against the owner of cargo, the shipowner must show a common risk existing, and a volun- tary sacrifice or extraordinary expenditure in- curred for the joint benefit of both ship and cargo. WalthiiW and others v. Mavrcgani and another, 39 Law J. Eep. (n.s.) Ex. 81 ; Law Eep. 5 Ex. 116. If, therefore, goods be landed from a stranded ship, and deposited in a place of safety, from whence they may be shipped again in another ves- sel and carried to their destination, without greater expense to the owner of the goods, or deteriora- tion to the goods themselves, so that it is indif- ferent to him by what ship they go forward, extra- ordinary expenses subsequently incurred in fioat- ing the stranded vessel do not constitute general average to which the owner of the cargo is bound to contribute. Ibid. (6) Adjustment of contribution. 4. — A vessel was chartered to carry salt from L to C, freight partly ' prepaid. After proceeding a short distance on her voyage, she was stranded, and part of the salt thrown overboard to get her off. She returned to L to repair ; and the rest of the salt, being unfit to be forwarded, was sold : — Held, that the adjustment of the contribution for general average in respect of the jettisoned salt must be made on the footing of the voyage having terminated at L, and of that port being the port of adjustment ; that the jettisoned salt, for the purposes of contribution, must be taken at its value in the state in which it would have arrived at L if it had not been jettisoned, but remained on board ; that if it would have arrived in the same state as the rest of the cargo, i. o., not fit to be forwarded, it must be taken at the same price as that for which the rest of the cargo sold, and that the prepaid freight was not to be considered ; but if it would have arrived sound, so as to be worth SHIPPING (K). 651 forwarding, then the value wmild be the original eostj tlie shipping charges, the insurance and the freight paid on it. Fletcher v. Alexmtder, 37 Law J. Bep. (n.s.) C. p. 193 ; Law Eep. 3 C. P. 375. (K) Master. (a) Wages and disbursements. 1, — A claim by a master for disbursements takes rank as a maritime lien, and is prior to the claim of the mortgagee of the ship. The Mary Anne, 36 Law J. Eep. (n.s.) Adm. 6 ; Law fiep. 1 Adm. & Ecc. 13. 2. — ^Bottomry bond upon ship, freight and cargo, with a coveuEint by the master rendering himself personally liable. Freight and proceeds of ship insufficient to satisfy the bondholder and the master's claim for wages and disbursements : — Held, that the master must be paid out of the freight and proceeds in priority to the bondholder. The Edward Oliver, 36 Law J. Rep. (n.s.) Adm. 13 ; Law Eep. 1 Adm. & Ecc. 379. The master's covenant is not for the benefit of the holders of the cargo, and therefore the owners of the cargo are not entitled to evoke a rule estab- lished for the protection of the bondholder alone. Ibid. 3. — When freight has been earned, the master of the ship, though also part owner, may sue in the Admiralty Court to" recover his wages and dis- bursements. T^e Feronia, 37 Law J. Eep. (n.s.) Adm. 60 ; Law Eep. 2 Adm. & Ecc. 66. Upon an appeal from the report of the registrar and merchante as to a master's claim for wages and disbursements, the following items were ob- jected to : 1. Sums of money for which the master as well as the ship was liable, and which had not been paid ; 2. Slops supplied to seamen who after- wards deserted; 3. The amount of a dishonoured bill of exchange, drawn for ship's purposes by the master upon the managing owner ; but it was doubtful whether the master had received notice of the dishonour: — Held, as to the 1st item, that the claim may be allowed upon proof, to the satis- faction of the registrar, that the sums have been actually paid. 2. That the items for slops were properly allowed as disbursements. 3. That, as to tie amount of the bill of exchange, even if notice of dishonour had not been waived, the master had not claimed the benefit of notice, and that there- fore, as he was liable for the amount, the item was properly allowed. Ibid. ' 4. — Bottomry bond on ship, freight and cargo. Proceeds of ship and freight insufficient : — Held, that though the master bound himself by the bond, and was also a part-owner of the vessel, the owners of part of the cargo cannot oppose his right to be paid his wages and disbursements in priority to the bondholder. The Daring, 37 Law J. Eep. (n.s.) Adm. 29 ; Law Eep. 2 Adm. & Ecc. 260. In a suit against a vessel for master's wages the Court cannot entertain a counterclaim on be- half of owners of part of the cargo pledged by bottomry by the master. Ibid. Jurisdiction of Court of Admiralty in re- spect of claims for wages. [See Admi- BALTT (A) ((?).] (J) Duties. 5. — A dock-master is invested with a discretion to be exercised for the benefit of all the ships in the harbour, and the master of a vessel is there- fore bound to obey the dock-master, and to assist in the removal of his ship, even though, if the interests of the ship alone might be considered, the removal was injudicious. 21ie Excelsior, 37 Law J. Eep. (n.s.) Adm. 54 ; Law Eep. 2 Adm. & Ecc. 268. Where a ship is moored in dock, it is generally the duty of her master to keep on board a sufficient crew to protect the vessel against ordinary risks. Ibid. A ship after having been moored in a dock was subsequently, by order of the dock-master, re- moved to another part, from which, by the negli- gence of her master and the disobedience of the dock-master's orders, she broke loose and damaged the docks : — Held, that the ship was liable for the damage. Ibid. 6. — Beans were shipped on board a vessel, and consigned to the order of the plaintiffs at (rlas- gow ; the bill of lading containing the usual ex- ception of perils of the sea (including collision). The vessel sustained damage by collision, and put into Liverpool for repairs. T'he beams having become wetted by salt water^the plaintiffs' agent at Liverpool offered to receive the cargo, and pay pro rat4 freight. The master refused, and the vessel, which completed its repairs in a time which would not have been sufficient for warehousing and drying the cargo, proceeded to Glasgow. Upon its arrival, it wab found that the beans were materially damaged, and that the mischief had been enhanced by their detention on board after they had been saturated with salt water : — Held, that having regard to the fact that the plaintiffs' agent was on the spot and offered to receive the cargo, the master was not entitled to carry it on in its damaged condition, as, although not bound to wait until the goods were made fit for the voyage, he was not justified in sacrificing them for the sake of earning his full freight. Notara and another, V. Henderson and others, 39 Law J. Eep. (n.s.) Q. B. 167 ; Law Eep. 5 Q. B. 346. (e) Authority. 7. — The captain of a merchant ship borrowed in a foreign port a certain sum for the ship's use, in consideration of which he took home goods for the lenders, and signed bills of lading, making the freight payable to them or their assigns at the port of discharge: — Held, that he had exceeded his authority as improperly interfering with the shipowner's lien on the unpaid freight. Reynolds V. Jex, 7 Best & S. 86. 8. (1) — The plaintiffs shipped goods on board a vessel of which the defendants were owners, with- out knowing that she was sailing under a charter- party. By this charter-party the vessel was to load, at the port where the plaintiffs' goods were shipped, a full cargo from the factors of the afr freighters. The freight was to be 18«, per tun of 262 gallons ; should other goods than wine be shipped, the freight to be at the same rate on the 6S2 SHIPPING (K), (M). quantity of wine the vessel would have carried, die quantity to he ascertained by a stevedore to be appointed by the charterer's agents and the master. The cargo to be brought to and taken from alongside the vessel at the merchant's risk and expense ; the captain to sign bills of lading at any rate of freight without prejudice to the charter, and the ship to be addressed to the charterers at the port of loading on the usual terms. The charterer's agents put up the vessel as a general ship, and the plaintiffs shipped goods on board of it, and received bills of lading from the master, without notice of the charter-party. These goods, which were stowed by stevedores appointed and paid by the charterer's agent, who received back the amount so paid from the master, were damaged from improper stowage : — Held, without deciding as to what might be the liability of the charterer, that there was no demise of the ship to him, but that it continued in possession of the owners, ^through the master and crew, who remained their servants. That so long as the master remained in the service of the owners, he might reasonably be presumed by those who shipped goods in igno- rance of the arrangements as to the charter of the vessel, to possess the ordinary authority to sign bills of lading as agent of the owners, who were therefore responsible to such shippers for improper stowage. Sandeman and others v. Scurr and others, 36 Law J. Eep. (n.s.) Q. B. 58 ; 8 Best & S. 60 ; Law Eep. 2 Q. B. 86. 8. (2). — The implied power of the master of a ship to bind the owner personally is limited by the law of the ship's flag. Lloyd v. Guibert, 35 Law J. Eep. (n.s.) Q. B. 74 ; 6 Best & S. 100; Law Eep. IQ. B. 115. 9. — Semble, where,a ship, stranded in a foreign country, is advertised by the master for sale as a stranded ship, and therefore the purchaser has every opportunity of examining her, and ascertain- ing whether she has been brought into such a con- dition as to give the master authority to sell her as a wreck, the purchaser cannot insist upon there being an implied warranty of title. Page v. Cow- asjee Eduljee, Law Eep. 1 P. C. 127. 10. — The policies of insurance upon a steam- vessel (the T) and the bill of lading provided that she might " assist and tow vessels in all situa- tions," and in the course of the voyage the T, in attempting to render salvage services to the S, damaged the latter so that she sank : — Held, that the owners of the T were liable for the damage to the S. The Thetis, 38 Law J. Eep. (n.s.) Adm. 42 ; Law Eep. 2 Adm. & Ecc. 366. Semble — That even if there had been no such provision in the policies arid bills of lading, the master would have been acting within the scope of his authority in rendering the salvage services, ■ and that therefore his owners would be respon- sible for his negligence in performing them. Ibid. (L) Measurement of Tonnage. With reference to regulating the mode of ascertaining the register tonnage of steam-ships, the 23rd section of the Merchant Shipping Act, 17 & 18 Vict. c. 104, designated in the margin of the statute " Eule 3," provides that in every ship propelled by steam-power an allowance shall be made for the space occupied by the propelling power, and that the amount so allowed shall be deducted from the gross tonnage of the ship, and states, " such deductions shall be estimated as follows." The section then, under divisions marked (a) and (b), points out how this deduction is to be estimated, and, in doing so, directs, inter alia, that where the tonnage of the space occupied by the boilers and machinery is above 30 per cent, of the gross tonnage, and there is no agreement between the Commissioners of Customs and the owners, the deduction shall consist of the tonnage of the actual space so occupied with the addition, in ease of paddle-wheels, of one-half, and, in case of screws, of three-fourths of the tonnage of such space, " and the measurement and use of such space shall be governed by the following rules," — which are afterwards set out in that section. The 29th section empowers the Commissioners, with the approval of the Board of Trade, to make such modifications and alterations in the tonnage rules as may become necessary, " in order to the more accurate and uniform application thereof, and the effectual carrying out of the principles of ad- measurement therein adopted" : — Held, that the divisions of section 23, marked (a) and (b), form no part of the tonnage rules which section 29 em- powers the Commissioners of Customs to alter. The City of Dublin Steain Packet Company v. Thompson, 35 Law J. Eep. (n.s.) C. P. 198 ; H. & E. 369 ; Law Rep. 1 C. P. 355. (M) Mortgage and Lien. (o) Eight to freight. 1. — A vessel was chartered to proceed to A, there take in a cargo to be shipped by the char- terers, and return direct to London. After the ship's arrival in the port of London, and whilst the cargo was in course of delivery, a mortgagee, under an ordinary statutory mortgage, made prior to the date of the charter-party, took possession : — Held, that he thereby acquired a right to the freight in priority over an assignee of the freight by a deed executed subsequently -to the charter- party, notice of which had been given to the char- terers. Brown v. Tanner, 37 Law J. Eep. (n.s.) Chanc. 923 ; Law Eep. 3 Chanc. 597. The freight upon a charter-party is not earned until the unloading and delivery of the whole cargo has been completed. Ibid. Quaere — Whether notice by a recital is notice of all the contents of the recited deed when produc- tion of such deed cannot be obtained. Ibid. 2. — The owners of a ship chartered her on the 2nd of February, 1867, K)r the conveyance to a distant port of a cargo of salt, at a certain freight per ton, to be paid, " two-thirds in cash or bill at three months at charterers' option, less 51. per cent, for all charges, five days after vessel sailing, and the remainder, on true delivery of ctrgo, in cash on receipt of captain's advice "of de- livery." On the 20th of February they mort- gaged her to the plaintiff to secure an advance of SHIPPING (M). 553 1,0002. by him; and again on the 14th of May to secure a further advance by him. The ship sailed on the Ist of March, and the plaintiff shortly afterwards, but before the two-thirds freight was payable, applied to the mortgagors for the said two-thirds freight, but was informed that it was not due. On the 1st of April he again applied, and was informed by the mortgagors that the two- thirds freight had been paid, but they did not pay it to him, excusing themselves on the ground that it had been used for other purposes. On the 24th of May the plaintiff sent a letter to the charterers giving them notice of the mortgage, and claiming payment of all freight due or to become due, and warning them not to pay it to the mortgagors. The ship arrived at its destination on the 1st of Itfay, and was completely discharged by the 18th. Advice of delivery of cargo reached the mortgagors on the 3rd of July. The ship arrived on its re- turn off Liverpool in January, 1868, and was taken possession of by the plaintiff outside the poit. The plaintiff brought an action against ' the charterers for the balance of freight, and, the mortgagors having in the meantime become bank- rupt, the creditors' assignee also claimed payment of it. On the application of the charterers an interpleader order wasi made, directing the pay- ment of the balance of freight into Court, and an issue to try the title to it. On the trial of the issue a verdict was taken for the plaintiff, subject to a special case, which was afterwards stated, and in which the question for the determination of the Court was, whether the plaintiff, the mort- gagee, was entitled as against the defendant, the creditors' assignee, to the sum of money paid into Court : — Held, that the Court had power to deter- mine the equitable and beneficial title to the money, and that the plaintiff was entitled to it, the right to the freight passing as incident to the ship, and the plaintiff having done all that was necessary to perfect his title in equity, Bramwell, B., dissentiente. Busden v. Pope, 37 Law J. Eep. (N.S.) Ex. 137 ; Law Eep. 3 Ex. 269. (J) User of ships by mortgagor. 3. — The E and A Company being in treaty with the R M Company as^^to amalgamation, en- tered into an agreement, whereby the E and A Company were to furnish vessels which the E M Company were to work, paying all working ex- penses and receiving all freights, but not being liable for losses or damage, and an application was to be made to Parliament for an amalgamation Act, and in the event of its failure, the agreement was to continue for nine months. The E M Company entered into possession of the vessels, and worked them between Suez' and Sydney. The E and A Company, without the knowledge of the E M Company, mortgaged the vessels. The E M Com- pany refused to amalgamate, and the parliamen- tary bill was withdrawn. The mortgagees gave the E M Company notice to deliver up the vessels, and sent authority to an agent at Sydney to re- ceive them. The E M Company might ^have stopped the vessels at Suez, but they sent them to Sydney ; there they were delivered up to the mort- DioEST, 1865-70. gagees ; but- they were seized under process of the Admiralty Court for non-payment of seamen's wages ; these wages the mortgagees paid in order to free the vessels ; and they had also to make cer- tain other disbursements in order to free the vessels from detention by the said Court : — Held, first, that the E M Company had a right, even as against the mortgagees, to send the vessels to Sydney, and that such user of the vessels was governed by the old working agreement in so far as it was applicable ; secondly, that the mortgagees were entitled to recover from the E M Company the sum they had paid for wages ; thirdly, that the mortgagees could net recover from the E M Company the other disbursements as and for spe- cial damage for conversion or detention of the vessels. Johnston and Paid, Trustees of the Com- mercial Bank of Scotland, v. The Royal Mail Steam Packet Company, 37 Law J. Eep. (n.s.) C. P. 33; Law Eep. 3 C.P. 38. (t)) Priority: registration. 4. — A mortgaged a ship for 1 ,200Z. to B, who transferred the mortgage to C. A then executed a second mortgage for 4002. B afterwards paid off C, and C signed a statutory receipt, instead of a re-transfer, This receipt was produced to the registrar, who made an entry in the register- book, under section 68 of the Merchant Shipping Act, ISSl, to the effect that the mortgage had been discharged. C afterwards executed a deed pur- porting to be a re-transfer of the 1,2002. mortgage to B, which was registered, and at the same time a note was made by the registrar against the entry of the receipt, stating that the receipt was signed in error, and the mortgage was afterwards again transferred to C, to secure a balance on account current, and this deed remained in C's hands, after satisfaction of all that was due on the ac- count. B then took a fresh mortgage from A for 2,5002., which included the 1,2002. and 4002. and had since been transferred to the plaintiff. After the new mortgage, B agreed with C that the mort- gage for 1,2002. should be a security for advances on an account current. The transfer of the mort- gage to the plaintiff was not registered until after this agreement. Upon a question of priority be- tween C and the plaintiff: — Held, affirming the decision of the Master of the EoUs, 37 Law J. Eep. (n.s) Chanc. 526, that the receipt with the enti-y on the register operated as a discharge of the first mortgage, and the same could not after- wards be revived by the note made by the regis- trar. Bell V. Blyth, 38 Law J. Eep. (n.s.) Chanc. 178 ; Law Eep. 4 Chanc. 136. (d) Arrest. 5. — A mortgagee of a ship, before the time arrived for payment of the loan, had the ship arrested on the eve of commencing a profitable voyage, upon charges of fraud against the owner, which he was unable to prove. Eelease of the ship ordered, mortgagee to pay costs and damages. The case distinguished from The Evangelismci, 1 Sw. 378 ; The Cathcart, Law Eep. 1 Adm. & Ecc. 314. 4B 554 SHIPPING (M), (N). 6. — Mortgagee of four sixty-fourth shares of a vessel condemned in the costs, but not damages, occasioned by a wrongful arrest of the vessel. The Egerateia, 38 Law J. Hep. (n.s.) Adm. 40. (e) Maritime lien ; foreign jvdgment. 7. — An adjudication of a foreign Court,' acting within the jurisdiction conferred upon it by the State within whose lawful control the subject- matter adjudicated upon is found, is conclusive against all the world, even though it professes to proceed on an assumption of the law of another country, and that assumption is erroneous. Cas- trique v. Imrie, 39 Law J. Eep. (n.s.) C. P. 350 ; Law Rep. 4 E. & I. App. 414. If the intention of the foreign Court was to deal with the subject-matter of the suit, an inference arises that the adjudication was in rem, though the proceedings may have been instituted inter partes. Ibid. Such an intention will be inferred in the case of proceedings to enforce a maritime lien in a State subject to a code founded on the Civil Law, or where the supposed owners of the chattel, the pro- perty in which is dealt with by silch Court, have been necessarily summoned to attend the proceed- ings. Ibid. The master of a British ship drew a bill upon his owner for necessaries supplied to the ship in the course of her voyage. The owner, who had in the meantime mortgaged the ship and then become bankrupt, declined to accept the bill, and it was dishonoured at maturity. Afterwards, the ship having put into Havre, the holder of the bill in- dorsed it to a French subject, who commenced a suit upon it in the Court there, against the master, and against the ship, and obtained judgment against the master with privilege upon the ship, and the judgment having been afiirmed by the superior Court there, the vessel was sold. By the French law a mortgage or sale of the property in a ship while on its voyage, to the prejudice of cre- ditors for necessaries supplied in the course of the voyage, is not recognised unless the transaction appears on the ship's papers. Also, in proceedings in a French Court to enforce a maritime lien by sale of the ship, all who appear to be the owners of the ship must be summoned. The original owner and his assignee in bankruptcy were cited accordingly before the Court at Havre, but they did not appear. After the decree for sale was made, the mortgagee instituted proceedings at Havre to replevy the ship, but his claim to inter- vene was disallowed in consequence of a mistaken view of English law adopted by the French Court, though evidence of the English law was produced and admitted before it. Held, that the judgment of the foreign Court was a judgment in rem, and passed the property in the ship ; and, as there was no suggestion of fraud, was unimpeachable in an English Court of justice. Ibid. (/) Lieit of ship's agent. 8. — Although the master has a lien upon the ship for average expenses, the ship's agent, if he has paid them, has no such lien. The Soblemstem, 36 Law J. Rep. (n.s.) Adm. 5 ; Law Rep. 1 Adm. & Eec. 293. A claim by ship's agent for disbursements can- not be recognised in the Court of Admiralty even against the proceeds of ship or cargo. Ibid. (g) Sights of mortgagor. 9. — In a cause of mortgage of a ship, the Ad- miralty Court decreed the sale of the ship, and the cargo to be unlivered. The owner appealed, and procured a prohibition, whereby the sale of the ship and the unlivery of the cargo were stayed. On motion by the mortgagee that the sale and un- livery should proceed, notwithstanding the appeal : — Held, so ordering, that the mortgagor of a ship, unlike a mortgagor of land, could have no right to its restoration in specie, and, further, that the fact that the mortgagee held a collateral security for the mortgage debt, was no answer to the applica- tion. Gartwright v. Philpott. The Jeff. Davis, Law Rep. 2 P. C. 19. Lfen for damage caused hy collision. [See supra (E) (e), (H) 4." 5.] Lien for necessaries. [See infra (N).] (N) Necessabies. 1. — A French vessel having been sold in a, damage suit, another suit, for necessaries, was instituted against the balance of the proceeds of the sale of the vessel : — Held, that the master's claim for expenses of a person assisting him in the defence of the suit did not constitute a claim for necessaries ; but, the French owners having executed an act of abandonment of the vessel, the Court decreed payment of the claim. The Pro- ceeds of the Bonne Amelie, 35 Law J. Rep. (n.s.) Adm. il5 ; Law Eep. 1 Adm. & Ecc. 19. 2. — The common law lien of a shipbuilder for the costs of repairs depends upon his possession of the ship ; and where, after the repairs were nearly complete, he had moved the ship out of the dock to take in part of her cargo, but he was completing the external repairs by means of a graving-flat alongside between the quay and the ship, when she was arrested, it was held that the shipbuilder had not such possession as entitled him to priority over a prior mortgagee. The Saio, Law Rep. 1 Adm. & Ecc. 353. 3. — Circumstances under which the owners of a ship were held liable for necessaries, notwith- standing that the possession and control of the ship was in the charterer, who, under the charter- party, was to pay all wages and disbursements, but the owners had the appointment of the captain, officers, and crew. The Cfreat Eastern, 36 Law J. Rep. (n.s.) Adm. 16 ; Law Eep. 2 Adm. & Ecc. 88. 4. — A being master and sole owner of a vessel, put her into a shipwright's dock for repair. The shipwright repaired the vessel, and refused to allow her to leave his dock until his bill for the repairs was paid for. A having no funds, the plaintiff lent him money to pay the shipwright's bill, and A paid the bill with the money lent : — Held, that the plaintiff was entitled to recover the SHIPPING (0), (G). 556 amount of the loan in a suit for necessaries. The Albert Crosby, Proceeds of, Law Hop. 3 Adm. & Ecc. 37. 5. — A broker, procuring necessaries to be sup- plied to a ship and paying for them, gives credit to the master and owners, and- stands in a different position froto a tradesman supplying ; his claim therefore does not take precedence of a claim under a bottomry bond. The Flor de Funchal, 35 Law J. Rep. (n.s.) Adm. & Ecc. 119. [And see (K) (c) supra.] Jurisdiction of County Courts. [See Ad- MIEALTT (A) 9.] Plmdinff in cause of necessity. [See Ad- miralty (B) 2.] (0) Offences. 1. — On a trial for maliciously wounding on the high seas, no proof was given of the register of the vessel or of the ownership, but three witnesses stated that she was a British vessel, and sailing under the British flag : — Held, that the Court had jurisdiction over the offence: 1st, because the vessel was proved to be British ; 2ud, because, if the vessel was not registered, there is nothing in the Merchant Shipping Acts to take away that jurisdiction, and the Merchant Shipping Act, 1854, provides that the punishment of offences committed on board such a ship shall be dealt with as if she were a recognised British ship. The Queen v. Seherg, 39 Law J. Eep, (n,s.) M. C. 133 ; Law Bep. 1 C. C. E. 264. 2.— The 257th section of the[Merehant Shipping Act, 1 854, makes it an offence to persuade or attempt topersnade a seaman toneglectto join his ship; and the 525th section, which limits the time for institu- ting proceedings, enacts, that " no conviction for any offence shall be made under this Act in any summary proceeding instituted in the United Kingdom, unless such proceeding is commenced within six months after the commission of the offence ; or if both or either of the parties to such pro- ceeding happen during such time to be out of the United Kingdom, unless the same is commenced within two months after they both first happen to arrive, or to be at one time within the same: — • Held, that if both parties, the seaman and the offender, remain in the United Kingdom, the proceeding against the offender must be com- menced within six months after the commis- sion of the offence ; but that if one of them goes away within six months after the offence is committed, and afterwards returns, so that he and the other are in the United Kingdom at one time, a further period of two months is allowed within which the proceedings may be commenced. Austin V. Olsen, 37 Law J. Eep. (n.s.) M. C. 34; 9 Best & S. 46 ; Law Eep. 3 Q. B. 208. Held, also, that the offence may have been com- mitted although there was an informality in the engagement entered into by the seaman. Ibid. [And see Admiealty (A) 8.] (P) Owners. An agent appointed by the managing owner ii the agent of all the part owners, and each one is responsible for his acts done within the scope of his duty; therefore, where the agent, insisting upon an excess of freight, the consignee paid it under protest to get delivery of the cargo : — Held, that a part owner was liable in an action for return of the excess. Held also, that where a charter-party provided that freight was to be paid at so much per ton, " net weight delivered," the consignee was not bound to pay freight according to the weight mentioned in the margin, or to bear the expense of weighing at ship's side ; and custom to the latter effect was negatived. Coulthurst v. Sweet, Law Eep. 1 C. P. 649. Sight of owner who has parted with his shares to sue for accounts. [See Ad- miralty (A) 7.] (Q) PlLOTAOE. (a) When compnlsory. l.^By 41 Geo. 3. c. Ixxxvi, an Act relating to the Trinity House of Newcastle-upon-Tyne, the owners and masters of foreign vessels resorting to the port were, by section 6, obliged to employ duly licensed pilots, with a proviso that British vessels should not be compelled to employ such pilots if they were not desirous of doing so. By 6 Geo. 4. c. 125, ss. 58, 59, a penalty was imposed on the masters of vessels piloted by any other than a licensed pilot, within the limits in which such vessels should be, subject to exemptions specified ' in the Act ; but by section 89 nothing in the Act is to alter or repeal any provisions contained in any Act or Acts of Parliament relating to the pilots of any ports or districts in relation to which particular provision shall have been made in any Act or Acts of Parliament. The Act last referred to is repealed by 17 & 18 Vict. c. 120, but by 17 & 18 Vict. c. 104, which came into operation on the same day, s. 353, the employment of pilots is to continue compulsory in all districts where it was compulsory immediately before the Acts came into operation, and all exemptions from compulsory pilotage then existing are to continue in force : — Held, following Dodds v. Emhleton, 9 Dowl. & Ey. 27, that the provision contained in the 41 Gec- 3. c. Ixxxvi, s. 6, is stili in force, and that it is not compulsory by law for the owners or masters of a British trader-vessel to employ a pilot in the port of the Tyne. The Tyne Improvement Commis- sioners V. The General Steam Navigation Company, 36 Law J. Rop. (n.s.) Q. B. 22 ; 8 Best & S. 66 ; Law Eep 2 Q. B. 65. 2, — A Norwegian vessel, the Hanna, bound from Sweden to London, and in charge of a duly licensed pilot, came wrongfully into collision with another vessel off the Nore Light-ship : — Held, that there was no compulsion to take the pilot, and that therefore the owners of the Hanna were responsible for the damage. The Hanna, 36 Law J. Kep.(N.s.) Adm. 1 ; Law Eep. 1 Adm. & Ecc. 283. 4b 2 556 ■ SHIPPING (a). At the time of the. collision a man was on board the Hanna, to whom the master had agreed to give a free passage, and who messed with him and also assisted in working the ship : — Held, that the Hanna was not " carrying passengers " within the meaning of the statute so as to render, it compulsory to take a pilot. Ibid. 3. — On the construction of the Hull Pilotage Act, 2 & 3 Will. 4. c. 105, it was held that pilotage from one part of the port of Kingston-npon-Hull to another for the purpose of entering a dry dock was not compulsory ; where the words of the Act in reference to pilotage were " sailing or navigat- ing into or out of the port," and ■" bound to or from the said port." The Maria, Law Rep. 1 Adm. & Ecc. 358. 4. — The owners of a wrong-doing vessel pleaded compulsory pilotage. It appeared that the mas- ter's wife and father-in-law were on board, and the master said he treated them as passengers, but no fare was demanded of them till after the collision : — Held, that the vessel was not " carry- ing passengers," so as to render ifc compulsory upon her owners to employ a pilot. The Lion, 37 Law J. Eep. (n.s.) Adm. 39 ; Law Hep. 2 Adm. & Ecc. 102. 4. — Owners are not exonerated from responsi- bility for the defaslt of a pilot whom they have selected and placed in charge when there was no obligation imposed on them to take such pilot and put him in charge. The Owners of the Steam- Ship Lion V. The Owners of the Ship York- Town. The lAon, 38 Law J. Eep. (n.s.) Adm. 61 ; Law Eep. 2 P. C. 625. In a cause of damage it appeared that at the time of the collision, the master of the damaging ship had on board his wife and his wife's father. They were on board by the invitation of the mas- ter and without the privity of the owners, and they paid no fare till after the collision : — Held, that they were not passengers within the meaning of section 379 of the Merchant Shipping Act, 1854, which exempts certain ships when not carrying passengers from compulsory pilotage. Ibid. 5. — The W A, in charge of a pilot, came to anchor in the Mersey and gave the B T a foul berth. Various remonstrances were from time to time made by those on board the B T, and after a few days the vessels in swinging to the tide came into collision : — Held, that the owners of the W A wore responsible for the damage. 1. Because while the vessel was at anchor, the employment of the pilot was not compulsory. 2. Because, even if the pilot had not properly moored the W A, her master was not^ relieved from responsibility, and therefore her owners were liable for the damage. The Wobum Abbey, 38 Law J. Eep. (n.s.) Adtn. 28. 6. — The defendants' vessel, belonging to the port of London, having taken on board a pilpt from Dungeness to Gravesend, came into collision, through the pilot's negligence, with the plaintiffs' vessel at a spot in the river Thames between Yantlet Creek and Gravesend: — Held, afBi(ming the decision of the Court of Exchequer, 37 Law J. Eep. (n.s.) Ex. 194 ; Law Eep. 3 Ex. 330, that for pilotage purposes Gravesend is the eastern , limit of the port of London, and that the sppt where the collision took place was therefore within the district where pilotage is made compulsory by the 388th section of the Merchant Shipping Act, 1864, and that the defendants were protected by the employment of a qualified pilot, who acted within the district of th« compulsory pilotage though he were not so acting at the spot where the collision occurred; and that the relation of master and servant did not exist between the defendants and the pilot, and therefore that the defendants were not liable for the damage sus- tained. The General Steam Navigation Company V. The British Colonial Steam Navigation Com- pany, 38 Law J. Eep. (n.s.) Ex. 97 ; Law Eep. 4 Ex. 238. I (i) Conflict of lam. 7. — The owners of a Norwegian vessel having sued, in the High Court of Admiralty, a British vessel for damage done by collision, are entitled as to compulsory pilotage to rely upon the law of Belgium, within whose territorial waters the col- lision took place. The Halley, 37 Law J. Eep. (n.s.) Adm. 1 ; Law Eep. 2 Adm. & Ecc. 3. Ee- versed on appeal, see next case. 8. — In a cause of damage in the High Court of Admiralty in England for a collision in Dutch waters by a Dutch ship against an English ship, it appeared that the collision was caused solely by the negligence of the pilot of the English ship, whom, by the Dutch law, the owners were compelled to take on board ; but that, by the Dutch law (con- flicting with the English law as declared by the Merchant Shipping Act, 1854), the owners of a ship doing damage to another ship are liable to make good the damage, notwithstanding that the ship doing the damage complained of was at the time navigated by and in charge of a licensed pilot: — Held, that an English Court of justice will not enforce a foreign municipal law, or give a remedy in the shape of damages in respect of an Act which, according to its own principles, imposes no liability on the person fromwhom the damage is claimed ; and that the cause, being instituted in an English Court, ought to be decided by the principles of the law of England; and that the English ship was exempt from liability. The Liverpool, Brazil and Biver Plate Steam Naviga- tion Company, appellants; Henry Betiham and others, respondents. The Halley, 37 Law J. Eep. (n.s.) Adm. 33 ; Law Eep. 2 P. C. 103. (c) Owner's exemption from damage caused by collision. 9. — In order to entitle the owners of a vessel to the benefit of exemption from liability to damage, by reason of having a qualified pilot on board, under this section, it must be proved that the damage for which it is sought to make them liable was occasioned exclusively by the default of the pilot. Therefore, where there was neglect of duty of the look-out man, which might have con- duced to the collision, it was held that that was SHIPPING (Q) (T). 5S7 such a default on the part of the crew as to disen- title the owners to the benefit of the exemption. The lona. Law Eep. 1 P. C. 426. 10.— In a cause of collision, in order to entitle the owners of a ship, which is under the charge of a licensed pilot, to the benefit of the provisions of the 388th section of the 17 & 18 Vict. c. 104, which exempts them from liability where the col- lision has been occasioned by the fault of the pilot, it lies upon them to prove that it was caused solely by his fault ; but if it be proved, on the part of the owners, that the pilot was in fault, and there is no sufficient proof that the master or crew were also in fault, in any particular which contributed to the accident, the owners will have relieved themselves of the burthen of proof which the law easts on them. If, for any act or omis- sion which contributed to the accident, the master or crew is to blame, then, although the pilot is also to blame, the owners are hot exempted from liability. The Owners of the Steam Ship Velas- quez,' appellants ; Briggs aad another, Owners of the Barque Star of Ceylon, respondents. The Velasguee, 36 Law J. Kep. (n.s.) Adm. 19 ; Law Eep. 1 P. C. 494. It is the duty of the crew, by means of a suffi- cient look-out, to give to the pilot the earliest possible information of an approaching vessel, and accurately to describe her position. Ibid. U. — ^By section 388 of the Merchant Shipping Act, 1854, no owner of any ship is to be answer- able to any person whatever for any damage occasioned by the fault of a pilot acting in charge of such ship within any district where the employ- ment of such pilot is compulsory by law. The Thames Conservancy Act, 1857,alocalAct, 20& 21 Vict. c. Gclvii, enacts, in section 96, that the owner of every vessel navigating the Kiver Thames shall be answerable for all damages " done by such vessel, or by any of the boatmen or other person belonging to, or employed in or about the same, by any means whatsoever, to any of the property or effiicts of the Conservators " ; and such owner is, upon conviction by the Justices of the person so committing the same, where the damages do not exceed 20?., to pay the amount of them to the secretary of the Conservators, and, in case of default, they are made recoverable summarily as a penalty ; but wheie the damages exceed 20?., the owner is declared liable to be sued for them by the Conservators. The Act also, by section 97, makes every such boatman or other person so offending " liable to repay all such damages as shall be so recovered to his master or owner " : — Held, that a pilot compulsorily employed under the Merchant Shipping Act, 1854, is not "any of the boatmen or other person belonging to or em- ployed in " a vessel within the words of section 96 of the Thames Conservancy Act, 1857, and that that section does not, therefore, impliedly repeal section 388 of the Merchant Shipping Act, 1 864 ; consequently, the owner of a vessel in the Thames is not liable for damage done to property of the Conservators by the vessel coming in collision therewith through the fault of a qualified pilot who is compulsorily in charge of such vessel within the meaning of the Merchant Shipping Act, 1 854. The Conservators of the Biver Thames v. Hall and another, 37 Law J. Eep. (n.s.) C. P. 163 ; Law Eep. 3 C. P. 415. 12. — Two steam vessels, the L J E and the Q, came into collision, and those on board the Q rendered no assistance to the L J E, which greatly needed it. The Q, was in charge of a pilot, com- pulsorily taken. The Queen, 38 Law J. Eep. (n.s.) Adm. 39 ; Law Eep. 2 Adm. & Ecc. 364. Semble — That the omission to render assistance after the collision was the fault of the master, as the " person in charge " for this purpose; but that the owners of the Q would nevertheless not be liable for the collision itself if it had been caused solely by the pilot. Ibid. 13. — In a case of damage by collision, occa- sioned by a vessel while in tow of a steam-tug having a licensed pilot on board, in pursuance of the statute 17 & 18 Vict. c. 104, s. 388, and no blame attached to the master or crew: — Held, that the owners of such vessel were not liable, being protected by that section of the statute. The Ocean Wave. Marshall v. Galloway, Law Eep. 3 P. C. 205. {d) Duties ofpUot. 14. — It is the province of the pilot to determine the rate of speed of a steam vessel. The Calabar, Law Eep. 2 P. C. 238. (E) Policy of Insubanch. [See Mabine Iksukancb.] (S) Salb. On the sale of a foreign ship in this country, the laws of the foreign country, in determining the status of parties interested at the time of the sale, are to be followed, unless contrary to the law and policy of this country. Where a legal mortgagee of an American ship agreed that there should be no entry of the mortgage made on the certificate of registration, so as to enable the mortgagors more easily to effect a sale in England : — Held, that the mortgagee had no equity against a pur- chaser without notice, who had paid his purchase- money. Semble, per Turner, L.J. — A purchaser of a foreign ship should not rely on the ship's papers ; he is bound to make inquiry as to title. There is no market overt for a ship. Hooper v. Gumm ; M'Lellan v. Gumm, 36 Law J. Eep. (n.s.) Chanc. 605 ; Law Eep. 2 Chanc. 282. (T) Salvage. (a) Salvage agreement. 1. — An agreement for salvage services will not, if just at the time when it was made, be subse- quently set aside because 'the services have been of longer duration than the salvors expected at the time when the agreement was entered into. The Cato, 35 Law J. Eep. (n.s.) Adm. 116. The C grounded on Shoeburyness sand, and the T agreed for 80?. to take her off and up to Graves- end. The services lasted during five tides, and thq T also fetched two bargee, and on behalf of the C engaged another steam-tug E, to assist. The 558 SHIPPING (T), (U). value of the propp.rty to whicli the services were rendered was 12,000^. 130^. was awarded to the E. As to T, the sum, of 801. tendered was held sufficient, and the owners of the T condemned in costs. Ibid. 2. — The plaintiff, as temporary , master of a steam-tug, rendered important salvage service to a vessel in distress. At the time he became master he was aware of the custom of the owners of the steam-tug to distribute any salvage according to a fixed rate of poundage, but the owners gave him no special notice of the custom : — Held, that the legal effect of the 1 82nd section of the Merchant Shipping Act, 1854, and of the 18th section of the Merchant Shipping Act Amendment Act, 1862, is to leave agreements for distribution of salvage in the same condition in which they were prior to any legislation on the subject; and that, under the circumstances of the case, the custom was not inequitable, and that the plaintiff was bound by it. The Ganges, 38 Law J. Eep. (n.s.) Adm. 61 ; Law Eep. 2 Adm. & Eco. 370. (b) Salvage by tug oi ■eteamhoat. 3. — Towage contract with a tug. Suit for salvage brought by owners of tug, on the ground that the captain of the ship had concealed the fact that many of his crew were unable to work through sickness, and that the ship was in danger. The Court being of opinion that the ship was not in danger, and that the concealment was not of a material fact, pronounced against the salvage. The Canova, Law Eep. 1 Adm. & Ecc. 54. 4. — Where a towage contract is entered into on behalf of a tug for a particular duty, at a specified price, that contract cannot be abandoned, unless it be shewn that circumstances have occurred which could not have been within the contemplation of the parties, and which would render it unjust and inequitable to hold the tug to the contract. Cir- cumstances under which the tug was held entitled to a small increase of remuneration. The White Star, Law Eep. 1 Adm. & Ecc. 68. 5. — Two vessels having come into collision, a tug towing the innocent vessel rendered assistance to the wrong-doer : — Held, that the tug was en- titled to salvage remuneration. TTie Queen, 37 Law J. Eep. (n.s.) Adm. 12 ; Law Eep. 2 Adm. & Ecc. 53. 6.- — The Court awarded and apportioned 900?. to the owners, master, and crew of a passenger steamboat, which, though laden with a valuable cargo, at much risk towed to harbour a direlict brig, whose cargo and freight were valued at 2,800?. 2'}ie Andrina, Law Eep. 3 Adm. & Ecc. 286. (c) What constitutes salvage service. 7. — To constitute a salvage service it is not necessary that the ship should be in absolute danger. It is sufficient if there was a state of difficulty and reasonable apprehension. And the Court pronounced for salvage, notwithstanding that there was an agreement for the services for a small amount, which the Court did not consider binding, not being just and equitable. The Phan torn. Law Eep. 1 Adm. & Ecc. 58. (d) Who may be salvors. 8, — In a cause of salvage, where the owners of the salving ship happen also to be the charterers of the salved ship, but not in possession of her, the commander, officers, and crew of the salved ship being appointed and paid by her owners, the owners of the salving ship are not debarred from claiming salvage services, although the quantum of salvage may be affected by the fact of their also being charterers of the salved ship. The Collier, Law Eep. 1 Adm. & Ecc. 83. 9. — Where collision occurs between two ships, and it is found that both were to blame, the crew of neither ship can claim salvage in respect of cargo saved from the other. Cargo ex Capella, Law Eep. 2 Adm. & Ecc. 356. Quaere — The policy of this decision ; the 33rd section of 25 & 26 Vict. c. 63, imposes no duty to save cargo as distinct from the ship. Ibid. 10. — One of two vessels belonging to the same owner, observing the other in a disabled condition on the high seas, went to her assistance, and, by means of labour and exertions of the crew, towed her into a port of safety ; in doing this, she ne- cessarily deviated from her course : — Held, that the crew of the salving vessel were entitled to sue the vessel salved for salvage remuneration. The ' ), Law Eep. 3 Adm. & Ecc. 142. (e) Amount and distribution. 11. — Salvage, where the ship was in distress, in consequence of being without either master or mate, and the salving ship transferred one of her mates to the former, who brought her to her port of dis- charge. Amount and distribution. The Golon- drina. Law Eep. 1 Adm. & Ecc. '334. 12. — In apportioning a sum of money awarded for salvage services, the Court will take into con- sideration, in allotting to the owners of the salving ship, the doubt whether the insurance might not be vitiated, and the owners become responsible to the owners of cargo, by deviating from the course of the ship to render the services. The Sir Ealph Abercrombie, Law Eep. 1 P. C. 454. (/) Sefitsal to allow crew of salved vessel to 13. — The Court will not lay down any general rule, but will be guided by the circumstances of each case in determining whether or no the master of the salvor's vessel is justified in refusing to allow the crew of the salved vessel to return to ■ their own ship before the completion of the salvage. Tlie Cleopatra, 37 Law J. Eep. (n.s.) Adm. 31. Jurisdiction and Practice of the Court of Admiralty in salvage suits. [See Ad- miralty (A) (/), (C) (/).] (U) Seaman's Conteact : Breach. The defendant, the captain of a ship calle SHIPPING (U), (V)— SIMONY. 659 the Thames, engaged the plaintiff as one of his crew. By the articles of agreement, which were signed by the parties, and contained the provisions usually found in such contracts, the plaintiff con- tracted to serve on board the ship on the voyage from London to Bio de Janeiro, or any port or ports in North and South America (and some other parts of the world), backwards and forwards, if . required, for a period not to exceed twelve calen- dar months, and back to a final port of discharge in the United Kingdom or continent of Europe between the Kibe and Brest. It appeared from the charter-party (by which the ship was at that time let to a certain firm for twelve calendar months), that the ship was in- tended for the service of the Peruvian Govern- ment, and that in case of her being destroyed by any enemy of that government, the charterers were to pay her value. The Thames started with a cargo of coals, provisions and ammunition on board, At the time of her departure the Peruvian Government was at peace with Spain, but soon afterwards war was declared. After the voyage was commenced the Thames was joined by two Peruvian steam-rams, and three vessels proceeded to Eio, stopping at several places on the way. The captain of the Thames was acting under the orders of an agent of the Peruvian Government on board, and the Thames, during the course of the voyage, some- times sailed in company with the rams, and some- times slightly preceded them in going from place to place. At the various stopping-places she put coals, ammunition, &c., on board the rams. Soon after the arrival of the three vessels at Eio, one of the rams went out and captured and brought in a Spanish brig as a prize, which was afterwards burnt. The captain then announced to the crew his intention, still acting under the orders of the Peruvian agent, and in concert with the rams, to proceed to Callao ; but the existence of war having then become obvious and notorious, the plaintiff refused to proceed any further with the voyage, on the ground that it was illegal and extraordinarily dangerous. -The ship went on without him, leaving him at Eio:— Held, iii action brought by him against the defendant for breach of contract, that a voyage such as that upon which the Thames was engaged was not, after the commencement of the war, such a voyage as to be within the terms of the plaintiff's engagement, and that proceeding with it after knowledge of the existei.ce of the - war, and failing to continue to employ the plain- tiff in a manner consistent with the terms of his engagement, was a breach of contract (dubitante Bramwell, B.). Burton v. Finkerton, 36 Law J. Rep. (n.s.) Ex. 137 ; Law Eep. 2 Ex. 340. Semble, per Kelly, C.B.— That serving on board a vessel used as a store-ship in aid of a belligerent ship, the fitting out of which to be so used is an offence -within the 7th section of the Foreign En- listment Act, is a serving on board a vessel used or fitted out for warlike purposes in the service or in aid of a foreign «tate within the 2nd section, and therefore that the' further prosecution of the voyage on which the Thames was engaged after knowledge of the declaration of hostilities w.is illegal. Ibid. (V) Wages. 1. — ^Where, in consequence of the death of the captain during the voyage, the chief mate becomes captain, the latter has authority to appoint a seaman to the post of second mate with the wages of such ; and a contract by such captain to that effect is binding on the owners of the vessel, not- withstanding np alteration be made in the arti- ticles under which the seaman shipped. Hanson V. Hoyden and others, 37 Law J. Eep. (N.s.) C. P. 66; Law Eep. 2 C. P. 47. 2. — A seaman shipped under articles by which he agreed that he would serve on voyages to cer- tain named places and home to the final port of discharge of the ship ; in consideration of which services to be duly performed the master thereby agreed to pay him as wages a certain sum per calendar month. He was left behind at one of the places at which the ship stopped ; and the jury found that there was no desertion, but that he had been guilty of drunkenness and abusive language, to the subversion of discipline, and was left behind through his own negligence :: — Held (per Byles. J. and' Montague Smith, J. ; dissentiente Brett, J.), that he was entitled to his wages up to the time of his being left behind. Button v. Thompson, 38 Law J. Eep. (N.s.) C. P. 223 ; Lay Eep. 4 C. P. 330. Bight of mortgagees to recover wages paid by them. [See supra (M) 3.] Claim of master for wages and disburse- ments: priority of. [See supra (K) («)■] Jurisdiction of the Court of Admiralty in claims for wages. [See Admibalty (A) («:).] SIMONY. In a criminal suit instituted against a clerk in holy orders by the secretary to the Bishop of Wor- cester, it was proved that the defendant had been guilty of simony, by reason of his having corruptly ■ and simoniacally obtained presentation and insti- tution to his vicarage, and also of conduct unbe- , coming a clergyman in unlawfully threatening a certain person to publish a libel upon him with the intent of extorting money. The Court founding its sentence, in respect of the offence of simony, upon the general ecclesias- tical as well as statute law, pronounced that the defendant was a disabled person in law to have the vicarage", and that his presentation thereto, and his admission and institution thereupon, were void and frustrate, and of no effect in law ; and having regard to all the circumstances of the case, the offence of misconduct as well as that of simony, it further pronounced upon him a sentence of depri- vation from the ministry and from the performance of all clerical functions whatsoever in the province of Canterbury, and condemned him in the costs ' of the suit. And it directed the registrar to apprise the 660 SLANDEK (A), (C). Queen's Proctor of the sentence in order thatHor Majesty might exercise her right of presentation to the vacant benefice given by 12 Anne, stat. 2, c. 12. The defendant in a criminal suit, appeared, by his proctor, to the citation and prayed articles. On the admission of the articles, the proctor intimated that he was not in a position to give in either an affirmative or negative issue, and praying justice, submitted himself to the judgment of the Court. The Court fixed a day for the hearing, and pro- ceeded with the cause as if a negative issue had been pleadfed. In a criminal suit instituted for simony the patron was called as a witness and required to pro- duce the deed of conveyance to him of the advow- son of the vicarage in respect of the presentation to which the alleged simony had been committed. It was admitted that the deed was in Cfourt, but the witness declined to produce it on the ground that it was a title deed. The Court, notwithstand- ing, ordered its production. Lee v. Merest, 39 Law J. Bep. (n.s.) Ecc. 53. SLANDER. (A) DEFAMATonT WoEDS : Innuendo. (B) ParviLEQE. (C) Peoof of Malice. (D) SpEcrAi. Damage. (E) Peactice in Action of Slandee. (a) Interrogatories. (b) Costs. {c) New trial. (A).Defamatoet Woeds : Innuendo. 1. — A declaration alleged that the plaintiff was chairman and director of the South-Eastern EailwEty Company, and that a fall in the value of the shares had taken place ; that the defendant spoke and published of and concerning the plaintiff as such ch'airman and director, and of and concerning the said fall in the shares, and of and concerning a rumour assumed by the defendant to have existed, and been circulated, the words following : — ' ' You have heard what has caused the fall (meaning thereby the said fall, &c.), I (meaningthe defendant) mean the rumour about the South-Eastern chairman having failed" (meaning thereby that the plaintiff, BO being such chairman of the South-Eastern Rail- way Company and such director, had become em- barrassed in his pecuniary affairs, and had become and was insolvent), whereby, &c. Second plea : — That in speaking the said words, the defendant meant and was understood by the bystanders to mean, that there had been and there was a rumour current on the Stock Exchange about the chairman of the South-Eastern Railway Company having failed, and not that the plaintiff had become em- barrassed, and had become and was insolvent, as in the innuendo in that behalf in the declaration alleged. And that it was and is true that there had been and [there was a rumour current on the Stock Exchange about the said chairman of the South-Eastern Eailway Company having failed : — Held, that the plea was bad, as it admitted that the words were spoken by the defendant, and failed to show that there was anything to justify his repeating the rumour if it existed. ' Also, that it was not good as amounting to the general issue. WatUn V. Hall, 37 Law J. Bep. (n.s.) Q. B. 125 ; 9 Best& S. 279 ; Law Rep. 3 Q. B. 396. Held, also, per Blackburn, J., that where the declaration sets out the words with an innuendo it is to be read ae if it contained two counts, one with the innuendo and another without it. Ibid. (B) Pkivilege. 2. — No action is maintainable against a County Court Judge for words spoken by him in his judi- cial capacity while sitting in his Court trying a cause, even though the words be spoken falsely and maliciously, and without reasonable, probable, or justifiable cause, and without any foundation what- ever, and not bond fide in the discharge of his duty as Judge, and though they be wholly irrelevant to the matter in issue before him. Scott v. Stansfeld, 37 Law J. Rep. (n.s.) Ex. 16S ; Law Rep. 3 Ex. 220. 3. — In an action forslander it appeared that the plaintiff was acting as the solicitor of the vicar of the parish in which the defendant lived. The vicar having called on the defendant one afternoon, she told him, in a conversation relating to some property of which he was trustee, that it was re- ported in the town that he and his " scoundrel solicitor " (the plaintiff) were robbing the widow and the orphan, the one to build his church, and the other to marry his daughter. She also said that she had heard the statement from some bar- rister's clerks in a shop. The jury having found that the defendant spoke these words bond fide : — Held, that she was not liable, as it must be as- sumed that in making the communication to the clergyman of the parish, she was actuated by the honest motive of enabling him to clear his charac- ter, and not with the object of disseminating slan- der. The occasion was therefore privileged, and it was impossible to sever the part of the state- ment which affected the plaintiff from the rest, so as to deprive it of the same privilege. Davies v. Snead, 39 Law J. Bep. (n.s.) Q. B. 202 ; Law Rep. 6 Q. B. 608. (C) Peoof of Malice. 4. — The plaintiff and the defendant were each of them possessed of a separate patent for the con- struction of spooling-machines. The plaintiff was negotiating for the sale of his machines to different manufacturers, some of whom were already using the defendant's machines under licences from him, The defendant wrote to these manufacturers letters stating that the plaintiff's ma'chines were infringe- ments of a patent of the defendant's, and that if they were used he (the defendant) would claim royalties for their use, and if thoy were not paid, SLANDER (C), (E)— SLAUGHTER HOUSES. 661 take legal proceedings. In consequence of these threats, the plaintiff lost the sale of his machines. The plaintiff then brought his action, the declara- tion stating the facts above mentioned, and aver- ring that the letters were falsely and maliciously written ; and the defendant pleaded not guilty. At the trial the plaintiff tendered'evidenee to shew that the defendant's patent (which had not been disputed by scire facias or otherwise) was void for want of novelty ; so that the plaintiffs machines were no infringement of the defendant's patent, and the evidence was rejected, and a nonsuit directed : — Held, that this evidence was properly rejected, as, if admitted and accepted as true, it could only shew that the patent was void, and not that the plaintiff made the communication to 'the intended purchasers mal4 fide, and without any intention of instituting proceedings against them. Wren and another v. Weild, 38 Law J. Rep. (n.s.) Q. B. 327 ; Law Rep. 4 Q. B. 730. Held, also, that the nonsuit was right, as the plaintiff did not affirmatively prove that the defen- dant's claim were not bond fide, but a malicious attempt to injure the plaintiff by asserting a claim which, to his knowledge was unfounded ; and that in the absence of such proof the action would not lie. Ibid. The action for slander of title applies not only to cases where the false and malicious assertion relates to real property, but where it relates to personal chattels ; and, Semble — That an action will lie against one for taking civil proceedings which, to his own know- ledge, are without any foundation. Ibid. 5. — The widow of an intestate, to' whom she acted as executor de son tort, executed a bill of sale of the goods of such intestate to A, one of his creditors, for securing the debt due. After her death the plaintiff became the lawful adminis- trator of the estate of the said intestate, and as such caused the goods which had been assigned by the bill of sale to be put up for sale by auc- tion, when the defendant, who was A's agent, attended and forbad the sale taking places saying he held a bill of sale over everything in the house in fevour of A. The defendant had received a letter from the auctioneers the day before the sale, telling him that the biU of sale was valueless, as the widow never had any title to the goods. On these facts appearing at the trial of an action against the defendant for slander of title in mak- ing the statement he had so made at the sale, the Judge directed a nonsuit : — Held, that the nonsuit was right, as the defendant was not liable for making such statement unless he acted maliciously, and that, notwithstanding the letter from the auc- tioneers, there was no evidence on which a jury could properly have found • that he had so acted. Stewart v. Young, 39 Law J. Eep. (n.s.) 0. P. 85 ; Law Rep. S 0. P. 122. (D) Specul Damage. 6. — The plaintiff alleged in his declaration that he was employed as a gamekeeper — in a dis- trict where many persons considered it improper Digest, 1863-70. to kill foxes, and where any person who did so would be looked upon with disfavour — on the under- standing that he would not kill foxes ; and that the defendant, well knowing this, falsely and ma- liciously said of the plaintiff, as such gamekeeper, that he had killed foxes : — Held, that this declara- tion shewed a good cause of action without any averment of special damage. Foulger v. Newcomb, 36 Law J. Eep. (n.s.) Ex. 169 ; Law Rep. 2 Ex. 327. (E) Pbactice in Actions of Slandeb. (a) Interrogatories. 7. — In an action for slander the defendant may be compelled to answer interrogatories as to the words uttered, if it be made out to the satisfaction of the Court that the plaintiff cannot" otherwise obtain redress. Therefore, the Court ordered a defendant to answer such interrogatories where it* was shewn that the defendant had stated publicly that the plaintiff had committed forgery, and where the plaintiff was unable to discover from any of the persons who heard the statement, what the exact words spoken by the defendant were. Atkinson v. FosbroJce, 3S Law J. Eep. (N.s.) Q. B. 182; 7 Best & S. 618; Law Rep. 1 Q. B. 628. (6) Costs. [See Costs at Law, 17-] (c) New trial. 8. — On the trial of an action of slander, before the plaintiffs counsel stated his case, the Judge, in the hearing of the jury, suggested to the parties that it would be better to withdraw a juror. This ■was declined, and the jury found a verdict for the defendant: — Held, that this observation of the Judge was not calculated improperly to sway the jury to give their verdict for either of the parties. Lloyd V. Jones, 7 Best & S. 476. 9. — In an action for slander, a new trial, on the ground that the damages were very inadequate, was refused where it did not appear that there had been any misconduct or mistake on the part of the jury, or that a new trial was necessary in order to vindicate the plaintiff's character. Forsdike and Wife V. Stone, 37 Law J. Rep. (n.s.) C. P. 301 ; Law Eep. 3 C. P. 607. A certificate under the 3 & 4 Vict. c. 24, sect. 2, that a slander is wilful and malicious, is given too late to be " immediately " after the verdict within the meaning ,of that statute, if it be given after an interval of ten days from the trial and^ at another assize town, and there be no circumstances to account for such delay. Ibid. SLAUGHTEE HOUSES. [See Public Health Act (C) (a).] 40 662 SLAVE TEADE— SPECIFIC PERFORMANCE (A). SLAVE TRADE. [See Admiralty (A).] SOLICITATION TO COMMIT FELONY. It is not a felony under 24 & 26 Vict. c. 94, s. 2, to counsel, procure, or command another person to commit a felony, where no principal felony has been committed ; but the offence continues to be a ■ misdemeanor as before that Act. Semble— An indictment charging a soliciting and inciting to commit a felony is not equivalent to a counselling, procuring, or commanding to commit a felony. The Queen v. Gregory, 36 Law J. Rep. (n.s.) M. C. 60 ; Law Rep. 1 C. C. R. 77. SPECIFIC APPROPRIATION. [See Debtor and Creditor, 6 ; Bill op Ex- CHAN8E (K) ; Trustee D (/).] SPECIFIC PERFORMANCE. [See Feaiids, Statute of ; Railway Company ; Vendor and Purchaser.] (A) What Agreements will and will not be enforced. (ffi) Agreement by letters. {h) Agreement partly performed. (e) Written contract with parol variation. {d) Agreement as to lands teith collateral agreement as to chattels. (e) Agreement to make and maintain a road and wharf. (/) Charter-party. (g) Agreement for partnership. (h) Agreement for personal services. {i) Agreement to purchase at valuation. (k) Agreement to purchase shares. (I) Agreement to pay increasing rate of in- terest. (m) Generally. (B) Grounds for refusinq Specific Perform- ance. (a) Want of mutuality. (A) Mistake, misrepresentation, and inade- quacy of consideration. (c) Doubtful title, (d) Belay. (e) Purchaser in possession : bad title. (C) Right to SpEciFrc Performance with Abatement or Compensation. (D) Practice. ' («) Discovery. (5) Payments into Court. (c) Bankruptcy or inability to complete of defendant purchaser. (d) Return of deposit. (e) Damages. if) Objection to title on reference, {g) Partie-. (A) What Agreements will and will not be enforced. (a) Agreement by letters. 1. — C, a lessee, sub-demieed to W. Both the lease and sub-lease were determinable on notice. C died, leaving the pls,intiff, his widow and execu- trix. A correspondence between the plaintiff and W, with reference to a new sub-lease, extended from the 24th December, 1867, to the 4th Febru- ary, 1869. By the former of those letters the plain- tiff distinctly stated the terms on which the new sub-lease was to be granted ; and by the latter W returned certain plans, approved on his part, and asked for [and received] a draft agreement for the new sub-lease. In the meantime, viz., on the 29th September, 1868, the original lease had been duly determined by notice from the plaintiff's lessor, of which fact the defendants were informed, though no notice to determine the under-lease was gi^ren. On the 5th of March, 1869, W returned the draft agreement approved on his behalf, but without prejudice to his rights against the estate of the plaintiff's late husband in respect of not having received notice determining the under-lease. On the 4th June, 1869, the plaintiff obtained a new lease of the property at an improved rent, and called upon W to accept and execute the sub-lease at the increased rent, acqording to the contract contained in the correspondence. W refused to do so, on the grounds that the original sub- lease to him was still subsisting ; and that the whole transaction had been carried on under a mistake of the true position of the parties. The plaintiff then filed a bill for the specific performance of the contract : — Held, that there was a concluded agree- ment between the plaintiff and W, and that she was entitled to a decree, with costs. Cayley v. Walpole, 39 Law J. Rep. (n.s.) Chanc. 609. (J) Agreement partly performed. 2. — Agreement by a railway company to grant a lease of an hotel adjoining a railway station for 99 years to G, subject to a special clause enabling the company to terminate the lease of the hotel if not carried on to the satisfaction of the com- pany, and it was agreed that Qt was to have the occupation of the refreshment-rooms at the same station, subject to the same restrictions and provi- sions as relate to the carrying on the business of the hotel. The lease of the hotel was granted 29 years ago, but it did not include the refresh- ment-rooms : — Held, that the assignee of G of the hotel, who was all along in the occupation SPECIFIC PERFORMANCE (A). 663 of the refreshment-rooms, was entitled now to the execution by the company of a deed granting him and his assigns, tenants of the hotel, the right of occupation of the old refreshment-rooms, subject to the same restrictions and provisions as in the agreements mentioned with reference to the hotel. Flanagan v. The Great Western EaUway Company, 38 Law J. Eep. (n.s.) Chanc. 117 ; Law Eep. 7 Eq. 116. (c) Written contract with parol variation. 3. — ^Five persons contracted to sell an estate in land, and a formal agreement was prepared, but before execution it was discovered that the en- tirety belonged to four only, and accordingly it was verbally agreed that the fifth should not be required to execute. The agreement was executed by the four only as vendors and by the purchaser, but as no alteration was made in the body of the agreement it still purported to be an agreement by the five to sell and convey : — Held, that the four who executed could not maintain a bill for specific performance against the purchaser. Horns- hy V. Bird, 38 Law J. Hep. (n.s.) Chanc. 244. 4. — An agreement to grant a lease of a house was contained in three letters, which specified the term and the amount of rent, and stipulated that the intended lessee (the plaintiff) was to do all repairs, painting, decorating, &c. The intended lessor (the defendant) refused to grant a lease on the footing of the agreement, on the ground that the plaintiff had at the time of entering into the agreement also verbally undertaken to expend 1,OOOZ. on the premises in a particular manner, and to allow covenants to compel him to do so to be inserted in the lease ; that the plaintiff had not performed that part of his agreement, and had objected to such covenants ; and further, that the agreement as contained in the letters was too un- certain for the Court to enforce : — Held, on a bill _ filed for specific performance of the agreement as contained in the letters, that the alleged parol collateral agreement was not substantiated by the evidence, and that there was no ground for saying that the terms of the letters were uncertain, and therefore that the plaintiff was entitled to a de- cree, with costs Dear v. Verily, 38 Law J. Eep. (n.s.) Chanc. 486. Decree of Stuart, V. C, 38 Law J. Eep. (n.s.) Chanc. 297, affirmed. Ibid. ( Law J. Eep. (n.s.) Chanc. 117; Law liep. 1 Chanc, 25. The father of n child, nine months old, piit into its hands a cheque for 900?. saying, in the presence of his wife and of the nurse, " I give this to baby ; it is for himself, and I am going to put it away for him." He then took it back, saying again that he was going to put it away for him. About the same time he told his solicitor that he intended to add 100?. to the 900?. and invest it for the benefit of his son. The father died suddenly a few days afterwards, without having made any provision for the- child, and the cheque was found in his possession : — Held, aJBrming -the decision of one of the Vice Chan- cellors, that there was no complete gift of the cheque to the infant ; and, reversing the decision of the same Vice Chancellor, that there was no valid declaration of trust in his favour. Ibid. 3.7— Semble— Although where A places money in the hands of B, declaring that it is to be held in trust for A for life, and after his decease for C and D, that may be a completed trust, yet where, A at the same time says that there is to be a deed exe- cuted to carry out the transaction, the trust is not complete ; and Held, in such a case where A, who was an ignorant person, and without legal assist- ance, was induced to execute a deed not in con- formity with the verbal trust, and in ignorance of its nature, he was entitled to have the deed set aside and the money returned to him. The prin- ciples governing the enforcement of voluntary agreements considered. Lister v. Hodgson, Law Eep. 4 Eq. 30. 4. — A testator who had bequeathed two l^acies, of 50?. and 200?. afterwards, in order to avoid legacy duty, revoked the legacies, and verbally instructed F, wlio owed him 300?. secured by a deposit of title deeds, to pay similar sums to the legatees, adding that one of the donees was to " hold the writings." F accepted the^ trust, but the deeds remained ill the custody of the donor: — Held, notwithstanding the retention of them by the donor, that a valid trust was effectually created in favour of the donees. Parker v. Stones, 38 Law J. Eep. (n.s.) Chanc. 46. 5. — A B signed a memorandum stating that he thereby " gave and made over " to C D an India Bond payable to bearer, the number of which was mentioned. The bond was then in the possession of A B, and was never given up to C D : —Held, that the memorandum amounted to a valid decla- ration of trust. Morgan v. Malleson, 39 Law J. Eep. (n.s.) Chanc. 680; 10 Law Eep. 475. Investment on mortgage in name of third person. [See, Advancement.] ; trust. [See Feacd, 2.] (6) Construction. Precatory trust. [See Will, Consteuction (K).] (fl) Discretionary trust. 6. — Where property is vested in trustees upon trust for A and the heirs of his body, with a direc- tion that when A shall attain a certain age they shall convey it to him, but that in case A should TRUST AND TRUSTEE (A), (B). 587 marry or otherwise conduct himself so as not to merit the approbation of the trustees, the estate should only belong to him for life, and to his issue in fee : — Held, that the trustees could not properly so act before the period pointed out for the con- veyance to A as to abandon or fetter their judg- ment on A's conduct, -and that although prior to that time they had approved of A's conduct, and of his marriage and marriage settlement, which latter would be materially defeated if his estate were cut down to an estate for life, yet that A having so acted as to deserve the disapprobation of the trustees, they should convey only a life estate^ to A. JTeKer V, X'er, Law Bep. 1 Se. App. 11. 7. — A discretionary power of advancement vested in trustees for setting up a testator's sons and daughters in business may not be exercised in favour of the married daughters' husbands, either for paying their debts, or setting them up in busi- ness. TS,bot V. Marshfield, 37 Law J. Rep. (n.s.) Chanc. 52 ; Law Rep. 4 Eq. 661 ; Law Rep. 3 Chanc. 622. If such a power be exercised by the trustees pending a suit for administration of their testator's estate, the Court will require the strictest evidence of bona fides, and of the propriety of the advance- ment. Ibid. Trustees having, in the opinion of the Court, exercised such a power mali- fide, for the purpose of defeating the plaintiflF's interest, were ordered to refund the sums advanced, and pay all costs of the litigation beyond the estimated costs of an ordinary administration suit. Ibid. 8. — Bequest to executors of 3,000Z. upon trust for the benefit of C for life ; and from and im- mediately after her death " in trust for the bene- fit of her children, to do that which they, my execjitors, may think most to their advantage." All the executors died in the lifetime of C, and some of C's children also : — Held, that the chil- dren who survived C were alone entitled, as the executors' discretion could only have been exer- cised after C's death ; and that the surviving children took as tenants in common. In re Fhcnes Trusts, 39 Law J. Rep. (n.s.) Chanc. 316 ; Law Rep. 5 Chanc. 139 ; Law Rep. 5 Eq. 346. 9. — By will a sum was given to two trustees on trust to pay the income to C for his life, with a gift over of the principal on his death ; but the trustees had a discretionary power to purchase with the principal an irredeemable annuity for the life of for his benefit. ' The trustees did not purchase an annuity, but one of them paid to C during his life, from time to time, various small sums, amounting in the aggregate to more than the total income, but less than the prin- cipal: — Held, that this was a proper exercise of the discretionary power. Messema v. Oarr, 39 Law J. Rep. (n.s.) Chanc. 216; Law Rep. 9 Eq. 260. 10. — The general rule, that where stock is standing in the names of trustees any party in- terested may have an order, ex debito justitise, to have it transferred into Court, does not appl/ to 'a ciise where there are discretionary trusts still to be performed. Bromley v. Kelly, 39 Law J. Rep. (n.s.) Chanc, 274. Under the statutory power to vary securities, a stock mortgage is an improper investment. But whereHrust funds had been lent on stock mort- gage, and retransferrod before the institution of the suit:— Held, that this, though a mistake on the part of the trustees, was no reason for de- priving them of the control of the fund. Ibid. {d) Constructive trust. [See Vendor and Puechaseb, 37, andinfra (D) (e).] («) Specific performance of voluntary trust. 11, — Distinction between enforcing the perform- ance of a complete voluntary trust, and enforcing the completion of an incomplete one. Gee v. lAd- dell, (No. 1), 35 Beav. 621. A testator bequeathed 2,000?. on certain trusts, and he empowered his executor, who was also his residuary legatee, to retain the amount in his hands uninvested, he paying interest thereon. After the testator's death, the executor, being satis- fied that the testator intended to bequeath 3,000/.. and not 2,000Z., provided to make it up to 3,0002. ; he made no investment, but continued to pay in- terest on the 3,000?. to his death : — Held, that there was a complete voluntary trust as to the additional 1,000?., which this Court would enforce. Ibid. A debt held not satisfied pro tanto by a legacy of a less amount bequeathed by the debtor to tho creditor. Ibid. (B) Bbeach of Trust. (a) Acquiescence. 1. — By a marriage settlement, 700?., then in the hands of H, was agreed to be transferred to the joint account of H and two other trustees, to be held by them upon trust to pay the same to the lady at her request in writing, and, subject thereto, upon trust, for her separate use, and on her death, as she should by will appoint, with certain trusts over in default. The money was left, for many " years, with the lady's acquiescence, in the hands of H, who advanced to the _husband the greater part of the principal, as to 200?., with the lady's knowledge, but not by her request in writing : — • Held, that H was liable to replace the 500?. but no more, and that the lady was disentitled to relief against the other trustees by reason of acquiescence. Jones v. Higgins, 35 Law J. Rep. (n.s.) Chanc. 403 ; Law Rep. 2 Eq. 538. 2. — The trustees of a marriage settlement per- mitted the husband to retain the tnist funds, which he appropriated to his own use. One of the trustees ultimately became entitled under the settlement to half the trust funds : — Held, that the estate of the husband was liable to refund his moiety. Butler v. Carter, 37 Law J. Rep. (n.s.) Chanc. 270 ; Law Rep. 5 Eq. 276. (b) Liability in respect of. [And see infra (B) {b).] 3, — A sole trustee committed the trust fund to a solicitor of good practice and repute to invest on 4 r 2 583 TEUST AND TRUSTEE (B). mortgage. The solicitor appropriated the money ; but he delivered to the trustee a fictitious con- ditional surrender of certain copyhold lands for securing the amount, but no receipt for the money was inclosed. The lands included in the pretended surrender were actually the property of the person by whom the surrender was expressed to be made, and of ample value. The solicitor regularly paid the interest on the money till his death, eight years afterwards, when the fraud was discovered : — Held, that the executor of the trustee was liable to make good the fund out of the assets of his testator. Bostock v. Flayer, 35 Law J. Eep. (n.s.) Chanc. 23 ; 35 Beav. 603 ; Law Rep. 1 Eq. 26. , 4. — Lapse of time is no bar to a suit to make the estate of a deceased trustee liable in respect of his breach of trust. Brittlebank y. Goodwin, 37 Law J. Eep. (n.s.) Chanc. 377 ; Law Eep. 5 Eq. 545. The cases to the contrary in the Irish Court of Chancery considered, and not followed. Ibid. 5. — Wliere a trustee, by deed under his hand and seal accepted the trusts of a will, and after- wards committed a breach of trust and died insol- vent: — Held, reversing the decision of Stuart, V.C, 38 Law .T. Eep. (n.s.) Chanc. 252, that the cestuis que trustent were not entitled to rank as spe- cialty creditors in the administration of his assets. Holland v. Holland, 38 Law J. Eep. (n.s.) Chanc. 398 ; Law Eep. 4 Chanc. 449. 6. — A marriage settlement executed in May, 1817, contained a covenant by the husband with a ti'ustee to pay to the l;rustee within three years a sum of 3,000Z. to be held upon the usual trusts in favour of the husband and wife and issue of the marriage, or else to secure that sum by mortgage. The money was neither paid nor secured, and the trustees never attempted to enforce the covenant, but acted as solicitor ' to the purchaser, on a sale in 1846 by the covenantor for his own benefit of the property he had covenanted to mortgage. The trustee dipd in 1848 ; his sons had notice of the settlement in 1851. The covenantor became bank- rupt in 1852, and applied to the widow and execu- trix of the trustee to prove for the 3,000^., which she declined to do. Dividends of \\s. in the pound were declared in the bankruptcy, and new trustees of the settlement were appointed by the Court, whose proof was rejected as too late. The widow and executrix of the trustee died in 1865, and his sons entered into possession of his pro- perty as devisees and legatees under his will, but when cited to take out letters of administration to their father, they declined to do so. Upon a bill filed on the 2nd of ,Ootober, 1867, by the widow and children of the covenantor and the new trustees, against the sons and an ad- ministrator ad litem of the deceased trustee, in answer to which the sons admitted assets : — Held, first, that the sons having admitted assets, the administrator ad litem represented the deceased trustee sufficiently for the purposes of the suit. Secondly, that the rights of the plaintiff were not barred by lapse of time, and that the sons were liable to make good the loss occasioned by the breach of trust to the extent of the assets of their father in their hands. Woodhouse^ v. Wood- house, 38 Law J. Eep. (n.s.) Chanc. 481 ; Law Eep. 8 Eq. 514. 1. — When a trustee has employed trust funds for his own benefit, he will be charged as of course with simple interest at 5 per cent. But compound interest will only be given when it is proved that the money has been used in trade, and the payment by a solicitor of it into his bank to the general account of his firm is not such an employment of the money in trade as to make him liable to be charged with compound interest. Quaere — Whether it can under any cir- cumstances be given unless a case is made out for it on the bill. Burdich v. GarricTc, 39 Law J. Eep. (n.s.) Chanc. 369 ; Law Eef . 5 Chanc. 233. nee by married woman to trustee, setting aside. [See Bakon and Feme, 18.] FraudvXent appointment : liability of trus- tee. [See Dower, 23.] Breach of trust by directors of companies. [See Company (C) (6) (3), (4).] (c) Becovery of misapplied trust funds. 8. — C, the solicitor of a mortgagee, being in- formed by the mortgagor that the mortgage money, 3,000^., would be paid off on a day named, con- tracted to purchase a property, the pxirchase to be completed on that same cj^y ; he was afterwards informed by the mortgagor that the money could not be paid. On that, C, who had previously told his client that the mortgage-money was to be paid off, and that he would re-invest it on real estate, borrowed from his bankers 3,000/. on deposit of thtf mortgage deeds, and completed his purchase therewith ; and on the mortgage money being paid off, he repaid the bankers : — Held, on the death of C, that the client had a lien on C's purchase. The intermediate loan by the banker did not prevent the ear-marking. Hopper v. Conyers, Law Eep. 2 Eq. 549. 9. — Wliere trust money is paid away, and plaintiflFs, cestuis que trustent, allege that such payment was a breach of trust, and that the reci- pients were aware of the fact, and prayed that the money might be restored, and for an injunction to restrain the dealing with the money, wliich is ear- marked, and which is alleged to be in danger, but the breach of trust is not admitted, a«d is a ques- tion to be tried at the hearing, the Court cannot grant an injunction to restrain the dealing with the money. This was so decided in a case of pro- motion money paid by one company to another, and both companies were being wound-up, and the defendant's company was a limited one. Bank of Turkey v. Ottoman Company, Law Eep. 2 Eq. 366. 10. — Where a trustee pays trust money into his banker's account, thereby mixing the money with his own ; subsequent sums drawn oxit by him will be attributed to the earliest items on the credit side of his account for the time being, and the trust money will in this way, in its turn, be con- sidered as drawn out ; whether or not the result be that a balance remains of his own moneys. TRUST AND TRUSTEE (B), (C). S89 Crown V. Adams, 37 Law J. Rep. (n.s.) Chanc. 67 ; Law Rep. 4 Chane. 764. H having a balance of 3,961?. 10s. Sd. at his bank, paid in a sum of 5,000^. trust-money. Be- tween the time of doing so and his death, he paid in various sums, together amounting to 12,533Z. lis. 6d,, and in the same interval drew out 18,847^. is. id. No part of this sum was devoted to the purposes of the trust, and he was still liable for the 5,0002. at the date of his death : — Held, that the balance remaining at his bank formed part of his general estate and could not be appropriated by tte beneficial owner of the 5,000i. Ibid. The decision in Fennel v. Deffell, 4 De Gex, M. & G. 372 ; 20 Law J. Rep. (n.s.) Qhanc. 115, fol- lowed. Ibid. 11. — "Where trust funds have been lost .by a breach of trust, mpneys recovered from the estate of the defaulting trustee are applicable, in the first instance, in reduction of the capital until all the corpus has been replaced. In re GrabowsMs Set- tlement, 37 Law J. Rep. (n.s.) Chanc. 926 ; Law Rep. 6 Eq. 12. [But see Tenant foe Life.] LiaMlity of trustee of composition deed in respect of unclaimed dividends. [See Composition Deed, 112.] (C) Investment or Trust Funds. (a) What investments are proper. 9. — The trusts of a settlement as to two-thirds of the trust funds made it imperative on the trus- tees, and as to the remaining one-third left it dis- cretionary with them, to invest in American secu- rities. During the civil war in America two petitions Were presented to the Court, under sec- tion 30 of Lord St. Leonards' Act, seeking an authority from the Court to make such invest- ments, but having regard to the then condition of the United States, the Court directed an invest- ment in British funds with liberty to apply. After the termination of the war, a third petition was presented, which the Court answered, by authori- sing investments in American Federal securities, directing the costs to be paid out of the corpus. In re Knowles's Settlement, 37 Law J. Rep. (n.s.) Chane. 840. Qusere — Whether, having regard to the terms of the settlement, any application to the Court was necessary. Ibid. 2. A will authorised investments in " shares of any established railway in full operation." Held, that investment in shares in railways within the United Kingdom, established by Act of Parliament, were authorised. Edwards v. Thompson, 38 Law .T. Rep. (n.s.) Chanc. 65. 3. — Power to invest trust funds in the pur- chase of hereditaments of a clear and indefeasible estate of inheritance in fee simple in possession : . Held, to authorise an investment in freehold ground rents. In re Feyton's Settlement Triists, 38 Law J. Rep. (n.s.) Chanc. 477 ; Law Rep. 7 Eq. 463. 4^ Trust to invest in " bonds, debentures, or other securities, or the stocks or funds of any country" : — Held, not to warrant an investment in the bonds of a French railway, the payment of the capital of which within fifty years was secured by a sinking fund guaranteed with in- terest by the French Government. Be Langdale's Settlement Trusts, Law Rep. 10 Eq. 39. (A) Liability of trustee for improper investments. 5. — By a settlement, the trustees were autho- rised to invest the trust money in the debentures, preference shares, or other securities, issued dr guaranteed by any incorporated public company paying a dividend, or guaranteed income; and, with the. consent in writing of the tenant for life, notwithstanding her coverture, to alter, vary and transpose the trust funds and securities from time to time. The trustees, without any consent, in- vested the trust money in debentures of a railway, which were afterwards paid off, and the money then received, was in like manner, re-invested in debentures of another line. The dividends on that line were guaranteed by the contractors of it. The tenant for life and her iusband, the plaintiff, joined in signing the receipts for the dividends from the latter investment, till the contractors failed, when the line ceased to pay anything. The plaintiff's wife died ; but after her death the plaintiff received a dividend from the subsequent investment. On a bill filed by him against the trustees of the settlement, to make them liable for a breach of trust : — Held, that the previous con- sent in writing of the plaintiff's wife was not re- quired to an investment by the trustees ; and that he could not now make them liable for a breach of trust. Stevens v. Eobertson, 37 Law J. Rep. (n.s.) Chanc. 499. The plaintiff was entitled under the settlement to the trust funds for his life ; and under his wife's will to the absolute interest in them in remainder, subject to the payment thereout, on his death, of certain legacies. He, as the executor of his wife's will, wished to pay the legacies forthwith, out of the settlement moneys ; and for that purpose to have those moneys paid to him on his undertaking fo satisfy the legatees: — Held, that the proper decree was to declare the trust funds bound by the trusts of the settlement and the will, with liberty to all parties interested to apply. Ibid. 6. — By a will and seven codicils the three execu- tors were made residuary legatees subject to a life interest, and although no valid trust had been created, they had always treated themselves as not being beneficially interested. By an eighth codicil the residuary gift was converted into a trust for certain other persons, subject to the life estate. The eighth "codicil was not proved or discovered for many years after the testatrix's death. In the meanwhile, and during the life- time of the tenant for life, the executors invested part of the funds upon a security which would be an improper one for investment by trustees, and which afterwards proved deficient. The security was appropriated to the purposes of the trusts of the eighth codicil. It did not appear whether the tenant for life consented to the investment, but 690 TRUST AND TRUSTEE (C), (J)). she received the interest during lier life, and did not in fact suffer from the insufficiency of the se- cvirity : — Held, that a proof against the estate of one of the trustees who had become bankrupt for the deficiency was good. Ex parte Norris, in re . Biddulph, 38 Law J. Rep. (n.s.) Banlcr. 5 ; Law Rep. 4 Chanc. 280. 7. — A trustee, with power to invest in consols or on real security, who makes an improper invest- ment, has the option of replacing either the actual sum misapplied with interest at il. per cent, per annum, .or the sum which would have been pro- duced by an investment in consols. Fisher v. Gilpin, 38 Law J. Rep. (n.s.) Chanc. 230. Robinson v. Bobinson, 1 De Gex, M. & G. 247 ; 21 Law J. Rep. (n.s.) Chanc. Ill, followed. Brown v. Gellaily, Law Rep. 2 Chanc. App. 761, distinguished. Ibid. 8. — A trust to invest in Government and real securities, with power to vary investments, does not authorise a^sale of stock and re-investment on a stock mortgage. A solicitor who, being a trustee, lends trust funds on a security which tends to, and does in fact, bring him professional receipts, paid aliunde, and not by the trust estate, is not chargeable as a trustee who has made profit by his office. No account, in respect of re- ceipt of rents and profits, will be directed against a trustee, in a suit by a remainderman, to which the tenants for life are not parties. Persons made parties to a suit by service of decree under 15 & 16 Vict. c. 86, s. 42, have the rights of co- defendants, and not co-plaintiffs. Whitney v. Smith, Law Rep. 4 Chanc. 513. (D) Trustee. (a) Acceptance of trust. 1. — A trustee who has duly executed a trust deed must, in the absence of special circumstances, be bound by that indication of his acceptance of the trust, and will not afterwards be heard to say that he thought he was merely signing as a wit- ness. Jones V. Higgins, 35 Law J. Rep. (n.s.) Chanc. 403 ; Law Rep. 2 Eq. 538. 2. — By a post-nuptial settlement executed in 1814, after reciting that J S, the husband, had be- fore marriage agreed to settle 1,000/. and had paid that sum to R G; R G- covenanted that he would stand possessed of the money upon trust with the approbation of J S, to invest it in the names of J S, and R G, and trusts were declared of the fund for the benefit of the husband and wife suc- cessively for life, with remainder to the children of the marriage. By the same deed J S cove- nanted with R G to pay to him a further sum of 1,000/. to be held upon trusts as the first-men- tioned 1,000/. Neither of the two siims of 1,000/. was, in fact, ever paid, i S survived his wife, and died in 1868.. In a suit instituted for the ad- ministration of the estate of J S, the children of the marriage claimed to rank as creditors for both sums of 1,000/. : — Held, that, as to the first-men- tioned sum of 1,000/., J S had constituted himself a tru.stee of the settlement, and that his estate was liable for the amount ; but that the claim to the other 1,000/. rested upon a mere legal obliga- tion which was barred by the Statute of Limita- tions. Stone v. Stone, 39 Law J. Rep. (n.s.) Chanc. 196 ; Law Rep. 5 Chanc. Ti. (fi) Appointment of, by Court of Chanoery. ^ [See infra (F) ; Teusteb Act.] 3. — In a cause to administer a deceased's estate, the Court has inherent jurisdiction to appoint trustees of the estate where no trustees were ap- pointed by the testator. Dodkim v. Brunt, Law Rep.'6Eq. 580. (c) Powers, rights, and duties. [See supra (B) (a), and (C) (a).] (1) Conflicting interests. 4. — An estate, at the time heavily incumbered, was settled by the owner for the benefit of her several children in undivided shares. She ap- pointed her sons the trustees, the eldest surviving one for the time being to be sole managing trustee, with very large powers for the development of the resources of the trust estate and the discharge of the incumbrances. The settlement contained a provision that any of the settlor's children who should at her death hold her acknowledgment for money advanced for her use, should be entitled to "a cliarge by way of mortgage" on the estate. The managing trustee being in possession of such an acknowledgment from the deceased settlor, and having filed his bill for a foreclosure, a foreclosure was refused, and a sale at chambers ordered. The Lord Chancellor, in reversal of a decision by Vice Chancellor Giffard, 38 Law J. Rep. (n.s.) Chanc. 169, on the construction of the settlement, having regard to the settlor's manifest desire, to be gathered from the whole of the settlement, to preserve the estate to the uses of the settlement, and having re- gard also to the circumstance that the benefit of a " charge by way of mortgage'' secured to persons advancing money to the settlor was reserved in favour, not of strangers, but of persons who them- selves took a benefit under the settlement : — Held, that the charge created by the settlement was a charge simpliciter, with the incident of .sale only, and not of foreclosure. Tennant v. Trenchard, 38 Law J. Rep. (n.s.) Chanc. 661 ; Law Rep. 4 Chanc. 537. Semble — That the interest of a trustee having the sole management of an estate is inconsistent with the interest of a mortgagee having the right to foreclose ; and that the Court will not grant foreclosure at the suit of any mortgagee standing in such a double relation to an estate. Ibid. 5. — No trustee of property having a right, the exercise of which conflicts with his duties as trus- tee, can, even with the consent of his cestuis que trustent, enforce his own right to their detriment. Cook V. Addison, 38 Law J. Rep. (n.s.) Chanc. 322 ; Law Rep. 7 Eq. 466. A trustee, with power to invest the trust pro- perty in leaseliold or chattel personal securities, or upon the personal security of any person, ad- vanced, at the request of his cestuis que trtistent, some of the trust property to two- ladies on the TRUST AND TRUSTEE (1)). 691 security of thp mortgages (with the usual eore- nants) of a leasehold house in which the ladies were living, and of the furnitilre in it. The trus- tee was also the lessor of the house. The mort- gagors became insolvent, paid no rent, and no part of the principal or interest on the loan. The trustee, as lessor, determined tlie lease by entry, and then sold all his interest in the leasehold pre- mises and the furniture ; but he thereby so mixed up the trust property with his own that it was impossible to distinguish the one from the other, or to pronounce with certainty how much of the pro- ceeds of the sale was his, and how much belonged to the cestuis que trustent. The advance had been made at 51. per cent. After some delay, the trus- tee replaced the principal money of thfe loan, but invested it against the wishes of his cestuis que tnistentinSi. per cent. Consolidated Bank Annuities, the dividends on which, however, were paid to them : — Held, that the trustee was bound to make good to the trust estate the whole of the money advanced on the loan, with all interest due therein, at the rate of 51. per cent, per annum, to be com- puted up to the date of the decree ; and that he must pay the costs of the suit. Ibid. Sale by Court : leave to trustee, an incum- brancer, to bid. [See Peactice in Equity (K K) 4.] (2) Enfranchisement oj leaseholds. 6. — Trustees, with power to renew, have power to purchase the reversion in the leaseholds, under "The Management of Episcopal Estates Act, 1860," 23 & 24 Vict. c. 124, ss. 20 and 39 ; and that Act applies to the estates of corporations both aggregate and sole. But an agreement for such a purchase will not be approved by the Court against the wish and to the detriment of the income of the tenant for life. Hayward v. Pile, Law Rep. 5 Chanc. App. 214. (3) Mortgage or pledge. 7. — ^A power of sale is incident to a mortgage ; therefore, where trustees are directed to raise money by mortgage they are justified in inserting a power of sale. The Court will, however, see that the exercise of it is properly guarded. In re Chaw- ner'a Trusts, 38 Law J. Eep. (n.s.) Chanc. 726 ; Law Eep. 8 Eq, 569. 8. — A trustee sold out trust stock, and sub- sequently advanced money to one of his cestuis que trustent for the purchase of an estate, which was when purchased'mortgaged to the trustee for the advance. He afterwards deposited the deeds with his bankers to secure a debt due from himself. Certain of the cestuis que trustent instituted a suit for the delivery up of the deeds, on the ground that the money advanced on mortgage was trust money ; and the trustee, by his answer in the suit, admitted a promise by himself to execute a decla- ration of trust of the mortgage in favour of his cestuis que trustent. The Court of appeal held that the admission by the trustee that the money ad- vanced by him for the purchase of the estate was trust money, was not evidence as against the bankers ; and, being of opinion on the evidence that the estate had not been shewn to have been purchased with trust money, on this ground re- versed the decree by the Master of the Rolls, 37 Law J. Rep. (n.s.) Chanc. 705 ; Law Rep. 6 Eq. 13.5 ; granting the relief prayed by the bill. New- ton V. Newton, 38 Law J. Rep. (n.s.) Chanc. 145; Law Rep. 4 Chanc. 143. (4) Bight to indemnity. 9. — A married woman, having property settled to her separate use with a restraint against anti- cipation, and having separate property not subject to such restraint, induced one of her trustees to apply for, and accept in his own name, certain shares in a joint-stock banking company, upon the undertaking that she would pay for them put of the savings of her separate income. The bank shortly afterwards failed, and the trustee was made a contributory and paid calls in the winding-Up : — Held, that he was entitled to indemnity out of such part of the separate estate of his cestui que trust as was not subject to the restraint against anticipation. ■ Butler y. Cumpstmi, 38 Law J. Eep. (n.s.) Chanc. 35 ; Law Rep. 7 Eq. 16. Held, also, that a fund representing savings out of the separate income which she had from time to time, partly before and partly after the trans- action, invested in the names of her trustees, but without their knowledge and without any express declaration of trust, was available for the indem- nity. Ibid. Fovser to advance child. [See Advance- ment, 5.] (d) Liabilities. [See (B) (i) and (C) (6) supra.] (e) Notice to. 10. — Parol notice given to a trustee of an in- cumbrance on the trust fund is suificient ; but a statement to a trustee, in a casual conversation, is insufficient notice to him. A mortgagee of a trust fund gave no notice to the trustee until after the mortgagor's bankruptcy ; but he gave notice before the assignees had given notice to the trustee of their right : — Held, that the trust fund was in the order and disposition of the bankrupt, and belonged to the assignee. lu re Tichener, 35 Beav. 317. 11. — Certain real and personal estates were vested in the trustees of a settlement in trust as A, a married woman, should by deed or will appoint, and A accordingly (amongst other appointments of the trust estate) appointed by will a legacy of 600^. to a nephew, and appointed executors and trustees of such will with certain powers : — Held, that the trustees of the settlement, and not the trustees of A's will, were the proper persons to whom notice should be given of an incumbrance on the 600?. Bridge v. Beadon, 35 Law J., Eep. (n.s.) Chanc. 351 ; Law Eep. 3 Eq. 646. 12.— B, after insolvency, twice mortgaged his reversionary interest in a trust fund. Both the mortgagees gave formal notice to the trustees. No prior notice of the insolvency had been given to trustees, but their solicitor had actual knowledge 692 TltUST AND TEUSTEE (D), (E). of it as ti creditor : — Held, that the solicitor's knowleds;e was no notice to the trustees, and that the mortgagees were entitled to priority over the assignee in insolvency. In re BrowrCs Trusts, 37 Law J. Eep. (n.s.) Chanc. 171 ; Law Eep. 5 Eq. 88. ' ^ Semble — In dealing with choses in action, direct notice in writing to the legal holders is necessary to give priority. Ibid. 13. — In order to give priority to an equitable assignment of a trust fund, it must be shewn that the trustee has such knowledge, however acquired, of the transaction, as an ordinary man of business would act upon, but it is not necessary that formal notice should be givep. Lloyd v. Banks, 37 Law J. Eep. (n.s.) Chanc. 881 ; Law Eep. 3 Chanc. 488. A trustee, who saw in a newspaper an advertise- ment relating to a petition by his cestui que trust as an insolvent debtor,' believed (correctly) that the cestue que trust was insolvent, and treated such in- solvency as a fact in a transaction independent of the trust. The cestui que trust two years after- wards made an equitable assignment of his inte- rest in the trust fund by way of mortgage, of which the mortgagee gave formal notice to the trustee. Subsequently to such notice the assignees in insolvency for the first time gave formal notice of the insolvency to the trustee: — Held, reversing the decision of the Master of the Eolls, 36 Law J. Eep. (n.s.) 751 ; Law Eep. 4 Eq. 222, that the assignees in insolvency were entitled to priority. Ibid. Assignment of chose in action. [See Volcn- TAKY Settlement, 1.] Forgery by solicitor : purchaser for value : constructive notice. [See Vendor and PUECHASEE, 36.] {f) Specific appropriation. [See Bill of Exchange, 38,39; Debtoe and Ceeditoe, 6. J (E) Teustee Eelief Act. (a) Bights and liabilities of party paying money into Court. 1. — On the 25th of July, 1864, an order was made for the payment of the dividends on a sum of stock paid into Court under the Trustees Eelief Act, 10 & 11 Viet. c. 96, to the person entitled thereto for life, On the 12th of June, 1866, the Court, on the application of the tenant for life, made an alteration^ in the order of the 28th July, 1864, by directing the costs of the petitioner to be paid out of the corpus. In re Tanner's Trusts, in re Trustee Eelief Act, 35 Law J. Eep. (n.s.) Chanc. 689. 2. — Where a trustee's claim for costs, charges and expenses is contested, he is not entitled to retain the amount of such claim and pay the balance of the trust fund into Court ; but should pay the whole fund into Court, and leave it for the Court to award the proper amount to which he is entitled in respect of his claim, Beaiy v. Curson, 38 Law J. Eep. (n.s.) Chanc. 161 ; Law ■Eep. 7 Eq. 194. 3. — An executor is not entitled to call for a re- lease and indemnity from legatees, their receipt alone being sufficient discharge. In Te Bobert's Trusts, 38 Law J. Eep. (n.s.) Chanc. 708. Trustees are not justified, as a matter of ceurse, in paying a married woman's legacy into Court ; but will be liable for costs if such payment appear vexatious and unnecessary. Ibid. In re Swan, 2 Hem. & M. 34, questioned. Ibid. 4.T-A trustee should not, in the discharge of his duties, take the opinion of counsel for any other purpose than his own protection as trustee. If he has any reasonable doubt or difficulty as to the title of his cestuis que trustent to their money, he should pay it into Court underthe Trustee Eelief Act Gunnell v. Whitear, 39 Law J. Eep. (n.s.) Chanc. 869 ; Law Eep. 10 Eq. 664. The objections of a trustee to' pay his cestui que trust the trust money were of such a nature as to compel the cestui que trust to file a bill against the trustee, where no bill was really necessary, after which the trustee paid the money into Court, to the credit of the cause : — Held, that the trustee must pay the costs of the suit — deducting however such costs as he would have been entitled to, if he had paid the money in under the Trustee Eelief Act. Ibid. (i) Costs. (1) Jurisdiction. 5. — Where an executor, who was also residuary legatee, paid into Court under the Trustee Eelief Act the amount of a legacy, the title to which by reason of an ambiguity of constructioiL of the will was in dispute, and it appeared that tJiere was a residue of substantial amount : — Held, affirming, with a variation, the decision of Stuart, V.C., that the Court had jurisdiction to order the executor to pay the costs of a petition for payment of the legacy, such costs being taxed as between party and party. In re Tricks' Trusts, 39 Law J. Eep. (N.s.) Chanc. 201 ; Law Eep. 5 Chanc. 170. (2) Insurance company. 6. — An assurance company properly paying money into Court under the Trustee Eelief Act is entitled to costs as between solicitor and client, but not to charges and expenses. In re Webb's Policy, 35 Law J. Eep. (n.s.) Chanc. 850 ; Law Eep. 2 Eq. 456. (3) Whether payable out of corpus or incc/ne. 7. — The costs of all parties on a petition for payment to a tenant for life of the dividends of a fund paid in under the above Act are payable out of the corpus of the fund. In re Turnlmfs Trusts (L. C, Cranworth), 35 Law J. Eep. (n.s.) Chanc. 313. 8.— Costs of petitions by tenants for life for payment of income arising from funds which have been paid into Court under the Trustee Eelief Act must come out of the income, and not not out of the corpus of the estate. In re Marner's Trusts (Kindersley, V.C), 36 Law J. Eep. (n.s.) Chane, 68 ; Law Eep. 3 Eq. 432. TRUST AND TRUSTEE (E), (F). 593 9. — Upon petition by the tenant for life of a trust fand which had been paid into Court under the Trustee Relief Act, for the payment of the dividends to them : — Held, that though the peti- tioner's costs were payable oiit of the income, the trustees' costs must come out of the corpus. In re Gordon's Trusts (Malins, V.C), 37 Law J. Rep. (n.s.) Chanc. 408. 10. — On a petition by a tenant for life of a fund transferred into Court under the Trustee Relief Act, the costs of the trustee are chargeable on the corpus. In re Knight's Trusts (Griffard, V.C), 37 Law J. Rep. (n.s.) Chanc. 409. 11. — The costs, charges, and expenses of a trustee properly incxirred in, about and preliminary to payment into Court by him, under the Trustee Relief Act, are payable out of corpus ; but the costs of his appearance on a petition for the pay- ment of dividends are payable out of income. In re Whitton's Trusts (James, V.C), Law Rep. 8 Eq. 352. 12. — Upon a petition by tenant for life for payment of income of fund paid under the Trustee Relief Act, the trustee's costs are payable out of the income, not out of the corpus^ Re Smith's Trusts (M.R.), Law Rep. 9 Eq. 374. 13. — The costs of all parties of a petition for payment to the tenant for life of the income of a fund paid into Court under the Trustee Relief Act are payable out of income. Ee Munton's Trusts (Malins, V.C), 39 Law J. Rep. (n.s.) Chanc. 764. In re Gordon's Trusts, 37 Law J. Rep. (n.s.) Chanc. 408 — No. 9 supra — reversed. [See the decision of the Lords Justices, in the recent case of In re Evans' Trusts, 41 Law J. Rep. (n.s.) Chanc. 512 ; Law Rep. 7 Chanc. 609, de- ciding that the costs in question in the above cases are payable out of income.] (c) Payment out. 14. — ^Where money is paid into Court under 10 & II Vict. c. 96, and the Court is called upon to distribute the fund upon the construction of an ambiguous will, the Court should be particularly scrupulous in seeing that all possible interests are represented. Hearing in Dom: Proc: postponed to bring next-of-kin before the Court. Trevillan V. Knight, 1 E. & I. App. 30. (F) Tettstee Act. (a) Appointment of new trustee. 1. — A testator appointed A B (the tenant for life) and C D trustees. The will contained no power to appoint new trustees. C D having dis- claimed, A B, under the powers of 23 & 24 Vict. c. 146, s, 27, appointed a single trustee in his place : — Held, that the other cestuis que trustent were entitled to have a third trustee appointed, and that the statute did not take away the juris- diction of the Court to increase the original num- ber of trustees. The Viscountess D'Adhemar v. Bertrand, 35 Beav. 19. 2. — The rules adopted by the Court in appoint- ing new trustees are, first, the Court will have regard to the wishes of the person by whom the Digest, 1865-70. trust has been created, if expressed in the instru- ment creating the trust, or clearly to be collected from it ; secondly, the Court will not appoint a person to be a trustee with a view to the interests of some and in opposition to that of others of the ceptuis que trustent ; thirdly, the Court will have . Tegard to the question whether the appointment of a proposed person will promote or impede the execution of the trust. In re Tempest, 36 Law J. Rep. (n.s.) Chanc. 632 ; Law Rep. 1 Chanc. 485. On a re-hearing of a petition for the appoint- ment of new trustees, evidence of what had taken place since the hearing before the Master of the Rolls was admitted for the purpose of deciding the question of fitness of a proposed trustee. Ibid. 3. — ^Where a creditors' trust deed under the Bankruptcy Act of 1861 contains no power of ap- pointing new trustees, and all the trustees die, the Court of Chancery has power to appoint new trustees. In re Price's Trust Deed, Law Rep. 6 Eq. 460. 4. — Where a trustee who had become bankrupt had never surrendered, and had never been heard of for several years, the Court, under the Trustee Act, appointed a new trustee in his place. In re Benshaw's Trusts, Law Rep. 4 Chanc. App. 783. 5. — When the person having power to appoint a new trustee is a lunatic, found ^o by inquisition, an order appointing a new trustee may be made in Chancery under the Trustee Act, 1850, s. 32. In re Sparrow, Law Rep. 5 Chanc. App. 662. (6) Who is a " trustee'' 6. — A person seised in fee of land which a railway company were empowered to take compul- sorily entered into a voluntary agreement for sale to the company. After the purchase-money had been paid, and the company had taken possession and had accepted the title, the vendor died in- testate, leaving an infant heir-at-law r — Held, that the heir-at-law was a trustee within the meaning of the Trustee Act, 1850. In Be BussiU's Estate, 35 Law J. Rep. (n.s.) Chanc. 461. 7, — Where assignees were appointed in bank- ruptcy, and afterwards proceedings in bankruptcy were suspended under section 110 of 24 & 25 Vict. c. 134, and one of the assignees went to live in Australia : — Held, the assignees were trustees within the meaning of 13 & 14 Vict. c. 60, and that the Court could make a vesting order as to land under section 10. In re Joyce's Estate, Law Rep. 2 Eq. 576. 8. — Where proceedings in bankruptcy have been suspended by a resolution of the creditors, under section 110 of the Bankruptcy Act, 1861, and an assignee has been appointed by them t» wind up the estate out of Court, such assignee is a trustee within the meaning of the Trustee Act, notwithstanding the absence of a trust deed. Therefore, when an assignee so appointed had died before the winding up was completed, the Court appointed a successor on a petition sup- ported by a statutory majority of the creditors entitled to the benefit of the trusts. In re Ba~ phael's Trusts Estate, 39 Law J. Rep. (n.s.) Chanc. 200; Law Rep. 9 Eq. 233. 4& 5-94 TRUST AND TEUSTEE (F)— TURNPIKE. (e) Vesting order. (1) In cases of lunacy or wnsonndness of mind. 9. — One of the executors of a surviving trustee of certain shares was of unsound mind, the other two declined to transfer : — Held, that an order could be made, vesting the right to transfer the shares in the persons beneficially entitled. In re White, Law Rep. 5 Chanc. App. 698. 10. — Where property is ordered to he sold by a decree of a Court of Equity, and the defendant, in whom the legal estate is, happens to be a per- son of unsound mind, not found so by inquisition, a Judge of the Court of Chancery has power to make a vesting order under section 1 of the latter statute. Herring v. ClarJc, Law Rep. 4 Chanc. 167. [See also Ltjnatic 4, 6,] (2) Copt/holds. 11. — "Where a person to whom a trust estate in copyholds is devisod disclaims, a vesting order, vesting in a new trustee the estate and interest in the copyholds, which would have vested in the disclaiming trustee, if he had, accepted the devise, is regular. Paterson v. Paterson, 35 Law J. Rep. (n.s.) Chanc. 518; 35 Beav. 606; Law Rep. 2 Eq. 31. The consent of the lord is not necessary to a vesting order of copyholds, but his right to his fine is not prejudiced by such an order if made without his consent. Ibid. If the order is to be made without the consent of the lord, he ought not to be served with the petition. Ibid. (3) Stock in name of deposed foreign Government. 12. — A suit having been instituted by a deposed foreign prince for the transfer of a fund standing in the books of the Sank of England in the name of an incorporate body, consisting of an aggregate of persons who had formed such prince's govern- ment, which had ceased to exist, and the de facto government having abandoned its claims to the fund, the Court, by the consent of all parties in- tere.sted, ordered the decree to be intituled. In the matter of the Trustee Act, 1850, and appointed two new trustees, whom it, empowered and directed to transfer the fund. Tfe King of Hanover v. The Bank of England, Law Rep. 8 Eq. 350. (d) Appointment of person to convey. 13. — Where a contract for the sale of copy- holds is executed by payment of the purchase- money and a formal covenant to surrender, and the vendor dies before the surrender, a person may be appointed, under ss. 3 and 20 of the Trustee Act, 1850, to convey to the purchaser, without the necessity of instituting a suit, thougli the covenant contains no words declaring a trust. In re Cuming, Law Eep. 6 Chanc. 72. (e) Service of petition. 14. — The sole trustee and devisee, under a will made prior to 23 & 24 Vict, c 145, having died before the testatrix, the Court refused to appoint a new trustee in the absence of the heir-at-law of the testatrix, although a decree for the execution of the trusts and sale of the estate had been made, the heir not being a party, and there being no evidence to bring the ease within section 11 of 13 & 14 Vict. c. 60. Gunson v. Simpson, Law Eep, 5 Eq. 332. 15. — A sole surviving trustee of land having died intestate as to trust estates, leaving an in- fant heir, and the cestuis que trustent having under a power appointed new trustiees, the petition for an order to vest the legal estate in the new trus- tees need not be served on the guardian of the in- fant heir. In re Little, Law Rep. 7 Eq. 323. (/) Costs. 16. — Where a committee of a lunatic mortgagee petitions under the Trustee Act, 1850, that he may be directed to re-convey to the mortgagor, the mortgagor, though served with the petition, is not entitled to his costs out of the lunatic's estate. In re Phillips, Law Rep. 4 Chanc. App. 629. 17. — A legacy was beqxieathed to N on trust for B for life, with remainder to D and Y absolutely. D and Y petitioned for the appointment of two per.sons as additional trustees. The Court ordered the appointment of one additional trustee, to be named by B, the petitioners to pay the costs. Be Brackenburi/'s Trusts, 39 Law J. Eep. (n s.) Chanc. 635 ; Law Rep. 10 Eq. 45. • TRUSTEE ACT. [See Teust and Trustee (E).] TEUSTEE RELIEF ACT, [See Teust aud Teustee (F).] TURNPIKE. (A) Exemptions from Toll. (a) Clergyman on parochial duty, (h) Stores for the v^e of troops. (c) Manure. (d) Volunteers, ' (e) Threshing machine. (B) Application op Tolls. (C) Turnpike Trustees. {a) Powers. (b) Duties. (D) Repair out of Highway Rates. (E) Offences. (a) Horses straying upon turnpike-road. (6) leaving carriage on road. [Turnpike-roads — highways. 30 & 31 Vict. e. 121, 6. 3, extended. 31 & 32 Vict. c. 99.] [Turnpike trusts— Union of. 12 & 13 Vict. c. 46, s. l.amended bv substituting the word "twenty" for "ten." 31 & 32 Vict. c. 99, s. 6.] TUENPIKE (A), (0). 6&5 (A) Exemptions from Tou,. (a) Clergyman on parochial duty. 1. — A elergyman driving out to visit a sick pa- rishoner is exempted by 3 Geo. 4. o. 126, s. 32, from paying toll in respect of his carriage and horses, although accompanied by his wife and family. Layard v. Om/, 37 Law J. Eep. (n.s.) M. C. 148 ; Law Esp. 3 Q. B. 416. 2. — The curate of a parish was engaged by the rector of a neighbouring parish of C to discharge clerical duties during his temporary absence through illness. There was no licence from the bishop or other authority by which the curate was empowered to perform the duties. He rode through a turnpike-gate on his way to the parish church of C to perform the ceremony of marriage : ■ — Held, that he was not entitled to the exemption from toll given by 3 Geo. 4. c. 126, s. 32, to the curate of a parish on parochial duty within' his parish. Brunskill v. Watson, 37 Law J. Eep. (n.s.) M. C. 103 ; Law Eep. 3 Q,. B. 418. (h) Stores for the use of troops. 3. — The exemption from toll in the Turnpike Act, 3 Geo. 4. c. 126, o. 32, in favour of carts, con- veying stores for the use of Her Majesty's forces, applies, although the cart conveying such stores be the cart of a common carrier hired for that pur- pose by the contractor for such stores, and although the contract contains a power to the offi- cer in command at the depot to which they are being conveyed, of rejecting them, if they should not be of a certain quality. The London and South- Western Railway Company v. Reeves, 35 Law J. Eep. (n.s.) M. C. 239 ; H. & E. 845. 47 — The exemption from toll in the Turnpike Act, 3 Geo. 4. c. 126, s. 32, in favour of carts con- veying stores belonging to Her Majesty, for- the use of Her Majesty's forces, applies where stores are being bond fide conveyed for the use of such forces, although at the time of claiming the exemption, no property in such stores has passed to the Crown, and there has been no irrevocable appropriation of them for the use of such forces. Toomer and another v. Reeves, 37 Law J. Eep. (n.s.) M. C. 49; Law Eep. 3 C. P. 62. (c) Manure. 5.— Under 5 & 6 Will. 4. c. 18, s. 1, which pro- vides that no turnpike toll shall be demanded in respect of any horse or carriage conveying manure for land, artificial manure carried by the dealer to the farmer in the dealer's cart is exempt from toll. Foster v. Tucker, 39 Law J. Eep. (n.s.) M. C. 72 ; Law Eep. 6 Q. B. 224. {d) Volunteers. 6. — The exemption of volunteers from toll con- tained in section 45 of the Volunteer Act, 26 & 27 Vict. e. 65, does not extend to members of the yeo- manry cavalry, and therefore such members are not exempt if they drive instead of ride to the place of meeting their corps. Humphrey t. Betliel, 35 Law J. Eep. (n.s.) M. C. 160; 'H. & E. 221 ; Law Eep. 1 C. P. 215. («) Threshing machine. f, — A local turnpike Act, 26 Vict. i;. lix, im- posed certain tolls on " waggons and carts," and by the interpretation clause included in these words threshing machines. By the 3 Geo. 4. c. 126, s. 4, all the enactments, provisions, matters and things contained in the Act are to extend to exist- ing and future turnpike Acts, unless expressly re- ferred to and varied, altered or repealed ; and by s. 32, implements of husbandry are exemptedfrom toll. By the 9 Geo. 4. c. 77, s. 19, the powers, &c. in the former Act are to extend to every local turnpike Act as if repeated in it. By the 14 & 1 5 Vict. c. 38, s. 4, and the 16 & 17 Vict. c. 135, s. 6, implements of husbandry in the 3 Geo. 4, c. 126, are to include threshing machines : — Held, that within the area of the local Act, the provisions of the general Acts as to threshing machines were superseded, and that such machines within such area were liable to pay toll. Ablert v. Pritchard, 35 Law J. Eep. (n.s.) M. C. 101 ; H. & E. 274 ; Law Eep. 1 C. P. 210. (B) Application of Tolis. 8. — By a turnpike Act it was enacted that the trustees should apply the moneys arising from tolls, &c., in the first place in defraying the ex- penses of obtaining the Act, and "in the next ~ place in paying and discharging all interest now due, and owing, and which shall hereafter become due and owing upon any mortgage, &c., of the tolls hereby granted, and in defraying the expenses of building toll houses, &c., and in defraying the ex- penses of alteringjimproving, repairing, &c., thesaid roads." The trustees providedfor interest accruingin respect of money borrowed upon security of the tolls, and arrears of interest, and no balance remained in their hands which was available for repairs. The road being out of repair, an order of Justices, under 6 & 6 Will. 4, c. 50, s. 94, was made upon the trustees to pay a sum for its repair to the surveyor of the Highway Board : — Held, distinguisliing The Queen v. Hutchinson, 4 E. & B. 200 ; 24 Law J. Eep. (n.s.) M. C. 25, that the order of the Jusr tices was wrong. The Briiton Turnpike Trustees V. The Wincanton Highway Board, 39 Law J. Eep. (n.s.) M. G. 156 ; Law Eep. 5 Q. B. 437. (C) TOENPIILE TeUSTBES. (a) Powers. 9. — Certain Commissioners of a turnpike-road and for other purposes, under a local Act of Par- liament, were empowered to borrow certain sums of money for the purposes of the Act, on the credit of certain rates, assessments, and tolls, and did so borrow at interest at the rate of 61. per cent, per annum. Afterwards, by the 12 & 13 Vict. c. 87, B. 3, where such Commissioners should " hereafter borrow, charge or secure any sum or sums of money on the credit of the tolls arising on such road," they should, " out of the tolls of such road and in priority to all other payments thereout, except the interestof such monies as aforesaid, . . . setapprt a sum of 61. per cent, per annum on the amount of ■iG 2 596 TUENPIKE (C), (E). money so borrowed, charged or secured." The Commissioners, with a view to get the money at a cheaper rate, by reason of the inducement of this sinking fund, called in the old securities and ob- tained the money at il. per cent. : — Held, that they were not entitled to set apart the sinking fund under the 12 & 13 Vict. c. 87, a. 3, as the money raised to pay oif the old charges was not " hereafter borrowed " within the meaning of that Act. Th£ Local Board of Health of Chatham extra v. The Rochester Pavement and Eoad Com- missioners, 35 Law J. Eep. (n.s.) M. C. 81 ; Law Eep. 1 G. B. 24. Semble— That the power to create a sinking fund, under 12 & 13 Vict. c. 8/, s. 3, was confined to cases where the money was borrowed on the credit of the tolls alone of a turnpike-road, and could not be extended to a case like the present, where the security consists of rates, assessments and tolls. Blackburn, J., dubitante. Ibid. 10. — By a local Act regulating certain turnpike- roads the moneys coming to the hands of the trustees were to be expended in defraying the expenses of management, not exceeding in any one year 300^., and next in maintaining and repairing the roads, but so that the amount expended for these purposes should not exceed 1,600^. in any one year, and then in paying off the debt owing by the trustees. The revenue of the trustees exceeded 1,900Z., and therefore there was a surplus over and above the amount authorised to be expended in the management, maintenance and repairs. 1,900^. was sufficient to defray all such expenses. The trustees, wishing to pay off their debts, obtained an order, under 4 & 6 Vict. c. 69, s. 1, for payment of a portion of the highway rates towards the ex- pense of repairing the turnpike-roads : — Held, dis- tinguishing T& Queen v. White, 4 Q. B. Kep. 101 ; 12 Law J. Eep. (n.s.) M. C. 31, that as the revenue exceeded 1,900^., there was no power to make such order. The Weardale Sistrict Highway Board v. The Trustees of the Alston Turnpilte Trust, 35 Law J. Eep. (n.s.) M. C. 173; 7 Best& S. 504 ; Law Eep. 1 Q. B. 396. Mortgage of tolls : ejectment : costs of action unpaid : mandamus. [See Costs at Law, 35.] (6) Duties. 11. — The duty of cleansing, scouring and keep- ing open ditches and watercourses for the keeping of turnpike-roads dry, is cast by section 113 of the 3 Geo. i: c. 126, the General Turnpike Act, not upon the occupiers of the adjoining lands, but upon the trustees themselves. Merivale v. The Trustees of the Exeter Turnpike Boads, 37 Law J. Eep. ;(n.s.) M. C. 40 ; 9 Best & S. 70 ; Law Eep. 3 a. B. 149. (D) Eepaie out of Highway Eatbs. 12. — By a special Turnpike Eoads Act, the trustees were authorised to expend the sum of 850^. upon the repair of the 35 miles of road within their trust. This sum was 'insufficient for the repairs, and they applied to Justices to make an order upon the surveyors of highways for the parish of P, through which a portion of the road passed, for the payment of a sum of money towards the repairs of such road.. They required an order for the payment of 1151. 8s. 6d., which sum they arrived at by apportioning the 8501. according to a mileage proportion, which would give 271. is. 8d. to P, and then deductingthatsum from li2l. ISs. 2d., the estimated amount necessary for the repair of the road in P. The cost of repairing the road in P was higher than the cost in other parishes, owing to the traffic being much heavier, and if the apportionment had been made after taking into consideration such additional cost, the sum appor- tioned to P would have been 89^. : — Held, that the mode of calculation adopted by the trustees was wrong, and that the Jusfices were right in order- ing the payment of 531. 13s. 2d., the difference between the above sum of 891. and the estimated cost of the repairs for the year in P. The Trustees of the Brighton TurnpAJce Trust v. The Surveyors of the Highways of the Parish of Preston, 39 Law J. Eep. (n.s.) M. C. 33 ; Law Eep. 5 Q. B. 146. (E) Offences. (a) Horses straying upon turnpike-road. 13.— By the 4 Geo. 4. c. 126, s. 123, any horse, &c. found "tethered or wandering, straying or lying about" any turnpike-road (except parts of it leading through uninclosed common or waste ground) may be seized and impounded. Horses belonging to the respondent, whose carter was standing four or five yards from them, were seized for the purpose of impounding them, while grazing on the side of a turnpike-road. The Justices found that the respondent's horses appeared to be under the control of his carter, who had charge of them : — Held, that these horses were not liable to be impounded within the meaning of the 4 Geo. i. c. 95, s. 75. Morris v. Jeffries, 35 Law J. Eep. (N.s.) M. C. 143 ; Law Eep. 1 Q. E. 261. (A) Leaving carriage on the road. 14.— The 41st section of 3 Geo. 4. c. 126, im- poses a penalty on any person who, inter alia, " shall leave upon a turnpike-road any horse, cattle, beast or carriage whatsoever," "whereby the payment of all or any of the tolls shall or may be evaded :" — Held, that to constitute the offence of leaving a carriage within that section the carriage must be left waiting on the road. Stanley v. Mortlock, 39 Law J. Eep. (n.s.) M. C. 150 ; Law Eep. 5 C. P. 497. Where therefore a carriage was driven on a turnpike-road to witliin a short distance of a toll gate, when the owner got out and walked through the gate, and the carriage, instead of waiting, was driven back to the owner's residence : — Held, that such owner could not, for so acting, be convicted under the said 41st section of leaving the carriage on the rond, whereby the payment of toll was evaded. Ibid. UNDUE ASSESSMENT— VACCINATION. 597 UNION ASSESSMENT. [See PooE.] UNDUE INFLUENCE. [See VoLTJNTAEY Deed.] (A) Attorney and Client. (B) Trustee and Cestui que Trust. (C) In general. (A) Attorney and Client. 1. — Where a person has once been established in a confidential relation to another, the former is under incapacity to accept from the latter a mate- rial benefit, except on positive proof that the relation of confidence had at the time actually determined, or that the donor had competent and independent advice, Bhodes v. Bate, 35 Law J. Eep. (n.s.) Chanc. 267 ; Law Eep. 1 Chanc. 252. Circumstances of age and business capacity are imanaterial where a confidential relationship exists. Ibid. In the absence of mala fides trifling gifts are not within the rule. Ibid. (B) Trustee and Cestui que Trust. 2. — Plaintiflf, a manufacturer, executed a deed by which he transferred all his property of every description to H, upon trust to pay himself and all other creditors, the debts owing from plaintiff, and either to carry on and manage the business or to sell and realise the assets, and after paying the assets, &c., to pay any balance to plaintiff. There was no proviso for redemption. H carried on the business for many years, devoting both his money and attention to it. In a settlement of accounts between plaintiff and H, H claimed to be allowed a bonus of l.OOOi. for his trouble, and plaintiff acquiesced. On a bill for an account : — Held, that H was not entitled to an allowance of the bonus, the Court considering that plaintiff signed the account under moral pressure. Barrett v. Hartley, Law Eep. 2 Eq. 789. (C) In general. 3. — "W B discounted bills to which he had forged his father's signature. The holders of the forgeries, working on the fears of the father for the safety of his son, but without holding forth any direct threat, and without any distinct promise not to prosecute, obtained from the father equitable security for the amount of the bills : — Held, by the House of Lords, affirming the decision of Vice Chancellor Stuart, that the security was void, as having been obtained by improper pressure. Wil- liams and ariother v. Bayley, 35 Law J. Eep. (n.s.) Chanc. 717; Law Eep. 1 E. & I. App. 200. Held, also, that the arrangement was invalid, as it amounted to an agreement to stifle a prosecu- tion. Ibid. » Meaning of undue ivfluence. [See Probate (M) 6.] Spiritual and siiperstitious influmoe. Voluntary Deed, 11.] Fraud on-power. [See Power, 21.] As between vendor and purchaser. Vendor and Purchaser', 28,] [See [See USURY. The jurisdiction of the Court of Chancery over unconscionable bargains is not affected by the repeal of the Usury Laws, or by the 31 & 32 Vict. c. 4, s. 1. Where exorbitant securities for more than the amount lent were exacted by a money- lender advancing money jjn a reversionary interest, they were ordered to stand as a security for the money actually lent, with interest at 5 per cent. Miller v. Cook, 40 Law J. Eep. (n.s.) Chanc. 11 ; Law Eep. 10 Eq. 641. [See also Eeversion, 3.] VACCINATION. [Vaccination.— 3 & 4 Vict. c. 29, 4 & 6 Vict. c. 32, 17 & 18 Vict. c. 100, 24 & 25 Vict. c. 59, and 21 & 22 Vict. c. 97, s. 2, repealed. 30 & 31 Vict. u. 84, s. 1.] [Vaccination (Ireland). — Parochial vaccination not to be considered parochial relief, &c. 31 & 32 Vict. c. 87.] On the 30th of March, 1869, A was convicted for disobeying an order of a Justice to cause his child to be vaccinated within seven days from the date of such order. Subsequently the registrar of births and deaths gave him notice to procure the vaccination of the child, which he failed to do ; and on the 29th of April another information came on to be heard against him, when he was o;pdered to have the child vaccinated within seven days from the date of such order. At the hearing he produced a certificate in the form given in schedule B to the Act, 30 & 31 Vict. c. 84, and signed by a' medical practitioner, certifying that the child was not in a fit state to be vaccinated, and postponing the vaccination until the 20th of June. He did not obey the order made upon him, and on the 13th of May, 1869, another information, under 30 & 31 Vict. e. 84, s. 31, came on to be heard against him for disobedience of such order. He again produced the certificate above mentioned, but he was convicted : — Held, first, that the Jus- tices were not deprived of the jurisdiction to "con- vict him, by reason of the former conviction ; and secondly, that the certificate was not a bar to the proceeding,' but that the Justices had jurisdiction to consider whether it was given bonA fide or not, and that if they thought it was not, they might consider that A had shewn no reasonable ground for his omission to carry the order into effect. Allen V. Worthy, 39 Law J. Rep. (n.s.) M. C. 36 ; Law Rep. 5 0. B. 163. 698 VAGABOND- VENDOE AND PURCHASER (A). VAGABOND. [5 Geo. i. c. 83 amended, rendering any person gaming in a public place liable to be deemed a rogue and vagabond. 31 & 32 Vict. c. 52, s. 3.] By 5 Geo. 4. c. 83, b. 4, a suspected person or reputed thief, frequenting any river, canal or navigable stream, dock or basin, or any quay, wharf or warehouse near or adjoining thereto, or any street, highway or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway or place adjacent, with intent to commit felony, shall be deemed a rogue and vagabond, and may be convicted : — Held, that this does not apply to all streets and highways, but only to streets and highways lead- ing or adjacent to places of the character men- tioned in the Act. Ex parte Tinson, 39 Law J. Eep. (k.s.) M. C. 129 ; Law Eep. 5 Ex. 257. Ex parte Brown, 21 Law J. Eep. (n.s.) M. C. 1 1 3, dissented from'; Ex parte Jones, 7 Ex. Eep. 586; 21 Law J. Eep. (n.s.) M. 0. 116, approvd. Ibid. Semble — A street may, in some cases, be itself a place of public resort within the meaning of the Act. Ibid. Where a prisoner is brought up under a writ of habeas corpus, and the commitment is insufficient, and the conviction has not been brought before the Court by certiorari, the Court is not justified in looking at the conviction for the purpose of amending the commitment by it, nor in detaining the prisoner in custody until the conviction is brought up by certiorari. Ibid. VENDOE AND PUECHASEE. [See Auction : Specific Perfobmanoe.] (A) Conditions of Sale. (n) Easements. (b) Eestriotive cotenants. (c) Suppression .• misrepresentation. (d) Arbitration clause. (B) Deposit. («) Forfeiture of. (b) Beturn of. (C) Time foe Completion. (a) Exercise of option. (b) Time of the essence. (D) Title. (a) Commencement of title. \b) Sale under Court. i (c) Mala fides. (E) Lien. (a) Vendor's. lb) Purchaser s on purchase-money prema- turely paid. (F) Eescission of Conteact. (ffl) By vendor, (6) By purchaser. (G) Setting aside Sale: Sopprk^sio Veei by PUEOHASEE. (H) Interest : Expenses : Outgoinqs. (I) PuECHASEE. (a) Bight to sue at Law. (b) Duty of, to inquire, {c) Constructive notice to. {d) Conveyance to. ' (c) Sub-pu/rchase :2notice to vendor. (A) Conditions of Sale. (a) Easements. 1. — Owner in fee of household property Sold it in lots, one of the conditions of sale was, that each lot is sold " subject to all . . . rights of way and water and other easements, if any, charged, or subsisting thereon." Plaintiff was the tenant of lots 4 and 6, of which he became the purchaser, M was the yearly tenant of lot 5, and, as such, he had the use of a well on lot 6, from which his premises were suppliedwith water by means of a pipe. M became the purchaser of lot 5 : — Held, that the above conditions of sale did not apply to the right of M, as tenant, to the supply of water. Such a condition could not ap- ply to rights as between one lot and ano^ier under the one owner in fee ; if such was the intent, it should have been clearly expressed. Bussell v. Harford, Law Eep. 2 Eq. 607. (J) Bestrictive covenants. 2. — Building land was sold in a number of lots, subject to certain conditions as to fencing, repair- ing the roads, and to restrictions as to the class of houses to be built. The conditions also provided that the statements to this effect should be in- serted in the conveyances. By the 15th condition the vendor reserved the right of selling the un- sold lots, under different arrangements, " and either subject to or not subject to the stipulations as to fencing and other stipulations contained in the particulars or the conditions " : — Held, first, that as to the unsold lots the vendor was subject to none of the restrictions ; second, that the pur- chasers were bound to have not only the restric- tive conditions stated on their conveyances, but also the 1 5th in favour of the vendor ; and third, that a separate deed of covenant by a purchaser as to the restrictions was a sufficient compliance with the provisions as to the statement on the conveyances. Sidney v. Clarkson, 35 Beav. 118. 3. — The defendant contracted to purchase a portion of an estate offered for sale by the plain- tiff, relying on a condition that no building on any part of the property should be used as a public- house. The plaintiff, however, owned a small plot of land adjoining _the estate, and indeed forming part of one of the fields sold, which was excepted from the sale, in order that a public-house might be built upon it. This fact was not stated upon the conditions of sale : — Held, that the defendant was not bound to complete without a covenant by the vendor extending the restrictive condition to the excepted land. Baskcomb v. Becjcwich, 38 Law J. Eep. (n.s.) Chanc. 636; LawEop. 8 Eq. 100. [And see Covenant, 3-12.] VENDOR AND PUEOHASEE (A), (B). 699 (c) Suppression : misrepresentation. 4. (1) — A condition of sale excluding the pur- eliaser from compensation or rescission in respect of any " error, mis-statement, or omission in the particulars," held to apply only to small errors, and not to a mistake, whereby 573 square yards were represented as 763 square yards. Compensa- tion allowed. Whittemere v. Whittemore, 38 Law J. Eep. (n.s.) Chanc. 17 ; Law Eep. 8 Eq. 603. 4, (2) — A vendor is bound to disclose every fact within his knowledge relating to his title. Ed- wards V. Wickwar, Brayne's Purchase, 36 Law J. Eep. (n.s.) Chano. 48 ; Law Eep. 1 Eq. 68. Where a vendor Jias knowingly suppressed a defect in title, the Court will not allow him to force the title upon a purchaser, although in the conditions of sale he has employed general words lai'ge enough to include the defect. Ibid. Freme v. Wright observed npon. Ibid. [And see Spboific Perfoemancb, 14-30; Setti^d Estates Act, 1.] (d) Arbitration clause. 5. — A house put up for sale by auction was described in the particulars of sale :is let at a cer- tain rental. By one of the conditions of sale it was provided that if any error should appear in the particulars of 'sale, it should not annul the sale, but a reasonable compensation or equivalent should be given or taken, as the case might require, such compensation or eqxiivalent to be settled by two referees, one to be appointed by either party, or an umpire to be named by the referees before they entered npon the reference, whose decision should be final. After the completion of the pur- chase and execution of the deed of conveyance, the purchaser discovered that the rent of the house was less than the amount stated in the particulars of sale, and he claimed compensation accordingly : — Held, first, that the condition was not restricted to errors discovered before the completion of the purchase, and that the purchaser was entitled to compensation. Held, secondly, following Coffins v. Collins, 26 Beav. 306; 28 Law J. Eep. (n.s.) Chanc. 184, that the settlement of the amount of compensation by the referees or umpire was not an arbitration within the meaning of sections 12 and 13 of the Com- mon Law Procedure Act, 1854, and therefore, that the purchaser's referee could not, in the absence of a referee appointed by the vendor, act for both parties, and award a sum to be paid for compensa- tion, so as to entitle the plaintiff to sue for it specifically. Boss and another v. Helsham and another, 36 Law J. Eep. (n.s.) Ex. 20 ; 4 Hurl. & C. 646 ; Law Eep. 2 Ex. 72. (B) DEPOsrr. (a) Forfeiture of . 6.— The plaintiff agreed to sell, and the defen- dant to buy a public-house, goodwill, &c., by an agreement which contained these words : " As earnest of this agreement, the said purchaser has paid into the hands of the said vendor the sum of 60/., which is to be allowed in part of payment at the completion of this agreement ; but if the said vendor should not fulfil the same on his part, he shall return the deposit in addition to the damages hereinafter stated; and if the said purchaser shoxild fail to fulfil his part of the agree- ment, then the deposit money shall become for- feited in part of the following damages ; and if either of the said parties should neglect to perform, or refuse to comply with any part of this agree- ment, the party so refusing or neglecting shall pay to the other of them on demand the sum of 50i!., hereby mutually agreed upon to be the damages ascertained and fixed on breach thereof." Instead of the deposit, the defendant gave an I U, which he never paid, and he afterwards refused to fulfil the agreement : — Held, that the plaintiff was enti- tled to recover 50^. as a forfeited deposit. Hinton V. Sparks, 37 Law J. Eep. (n.s.) C. P. 81 ; Law Eep. 3 C. P. 161. (J) Beturn of. 7. — Where leasehold property which is sold in separate lots is held under one lease, it is incum- bent on the vendor to state that fact in plain and distinct terms. Leasehold property was put up for sale by auc- tion in lots, being described in the particulars as " long leaseholds, held for upwards of ninety years unexpired, at various ground-rents," with a statement that as to lots 1 and 2 a separate lease would be granted to the purchaser for ninety- eight years from a day named, at a peppercorn rent, and that as to lot 3, a lease would be granted for the same term and from the same day at a rent of 60/. ; one of the conditions stipulating that no purchaser should call for the production of the vendor's title, or make any objection in respect of his right to grant the lease. There was also the usual condition enabling the vendor to rescind the contract on returning the deposit without interest. The purchaser, of lots 1 and 2, having subsequently discovered that such lots were held with lot 3, under one lease, and were jointly liable therewith to the 60/. rent, objected to complete without a release from the superior landlord in respect of the liability of lots 1 . and 2. under the original lease. The release was refused, and upon bill filed by the vendor for specific performance, the Court — hold- ing that there was no sufficient notice of the fact that the premises purchased were held with others under one lease, and that the condition above mentioned did not apply to the purchaser's objec- tion — dismissed the bill with costs, and decreed a return of the deposit with interest. Sheard v. Venables, 36 Law J. Eep. (n.s.) Chanc. 922. 8. — A sub-purchaser of an estate, who had paid a deposit partly in cash and partly in bonds, rescinded the contract on the ground of misrepre- sentation of quantity, and his vendor then rescind- ed his contract with the first vendor on the same ground, and received back from him his deposit partly in cash and partly in bills of exchange. Upon a bill by the siib-purchaser against his ven- dor : — Held, reversing the decision of Vice Chan- cellor Malins, Law Eep. 5 Eq. 486, who thought 600 VENDOR AND PURCHASER (C), (D). his remedy was at law, that plaintiff was entitled to relief in equity for the return of the cash de- posit with interest, and delivery up of the bonds. Persons who had an agreement with the sub-ven- dor as to a division of profits, but were not parties to the contract with the sub-purchaser : — Held, not to have been improperly made parties to the suit. Aheraman Iron Works Company v. Wic/cenSj Law Rep. 4 Chanc. 101. (C) Time fob Completion. (a) Exercise of option. 9. — A testator devised real estates to trustees for sale, and directed that his eldest son should have an option of purchase at a price to be fixed by arbitration, and that the time allowed for such option should be two months, within which time he should enter into such an agreement for the completion of the purchase as the arbitrators should direct or approve of. The arbitrators made their award on the 6th of May, and delivered it to the family solicitor, who acted for all parties. On the 7 th of May the solicitor sent, by post, to the eldest son, a letter containing an extract from the award. On the 16th of .Tune the son wrote to the solicitor, accept- ing the terms, but the formal agreement for pur- chase was not signed until the 6th of July : — Held, that the time began to run when the award was communicated to the son, and not when the award was made, and the agreement, therefore, had been entered into within the time allowed by the will. Austin V. Tawney, 36 Law J. Eep. (n.s.) Chanc. 339 ; Law Eep. 2 Chanc. 143. Semble — If the formal agreement had not been executed within the two months, yet the letter of the 16th of June constituted a sufficient agreement under the will. Ibid. The rule that notice to a solicitor is notice to the client, applies only as between parties dealing hostilely with each other. Ibid. (A) Time of the essence. 10. — Where a contract for purchase of a house said, "Possession to be given on the 14th of Janu- ary next," it was held that the meaning was, that possession with a good title was to be given ; and it appearing that the purchaser required the house for residence, and had previous to the contract so informed the vendor : — Held, that time was of the essence of the contract ; and that the vendor having failed to make out a title by the day named, he was not entitled to specific performance. 'lUley V. Thomas, Law Eep. 3 Chanc. App. 61. 11. — Time is of the essence of the contract for the sale of a public-house ; and when4he particu- lars of the contract for such a sale are silent on the subject, it is to be assumed that the transfer of the licence of the public-house will be made under the nth section of the Licensing. Act, 9 Geo. 4. c. 61. Day V. LuhJce, 37 Law J. Eep. (n.s.) Chanc. 330 ; Law Eep. 5 Eq. 336. 12, — A railway company agreed to make such accommodation works as A B should notify within pne month after possession should have been given to the company. A B and the company's engineer met and discussed the necessary works, and a me- morandum was made specifying certain works. Certain discussions as to these works were pro- tracted beyond the month, A B supposing that the condition as to time was waived. Two mouths after the one month had expired A B made his award. The award provided for a cattle-arch which had not been previously mentioned. The solicitors of the company not being fully informed as to the exact date of the award, took it up and paid the arbitrator's charges : — Held, that the con- dition as to time was not waived as to such works as had not been previously mentioned, for a waiver must be an intentional act without knowledge, and it is incumbent on any party insisting on a verbal agreement, in substitution of a written eontiract, to shew that both parties understood the terms of the substituted agreement. The Earl of Darnley 1. The London, Chatham and Dover Bailway Com- pany, 36 Law J. Eep. (n.s.) Chanc. 404 ; Law Rep. 2 E. & I. App. 43. Held, also, that as the parties had agreed to leave matters to the discretion of A B, the Court had no power to substitute its own discretion for that of A B, so as to order the construction of works, though such might appear to be necessary and proper. Ibid. Semble, by the Lord Chancellor — That taking up an award known to have been made after the limited time had expired, does not amount to an admission that the arbitrator's authority has not expired. Ibid. 13. — W contracted to sell a dwelling-house to H ; possession to be given on the 26th of February. H wanted the house for immediate occupation. On Eebruary 26th the vendor had not made a good title, and the purchaser did not enter into posses- sion. He continued, however, to negotiate for some time longer, when he gave a peremptory no- tice of immediate abandonment of the contract : — Held, that there must be a decree for specific per- formance of the contract. Tilley v. Thomas, No. 1 supra, distinguished. Wehb v. Hughes, 39 Law J. Rep. (n.s.) Chanc. 606 ; Law Rep. 10 Eq. 281. (D) Title. (a) Commencement of title. 14. — Property described in the conditions of sale as a freehold residence was purchased at a sale by private contract. One of the terras of these conditions was, " the abstract of title will commence with a conveyance, dated the 1 7th day of April, 1860, and no purchaser shall investigate or take any objection in respect of the title prior to the commencement of the abstract." The deed in question conveyed the property in fee subject to the covenants and conditions in a deed of 1850. What these covenants and conditions were did not appear : — Held, that the defendants had not de- duced a title to the property in compliance with their contract, as they were bound notwithstanding the conditions to shew that a clear freehold title pass- ed by the conveyance of 1860. Phillips v. Cold- VENDOE AND PUECHASEE (D), (F). 601 deugh and another, 38 Law J. Ecp. (n.s.) Q. B. 68 ;' 9 Best & S. 967 ; Law Eep..4 Q. B. 159. [And see No. 27 infra.] (A) Sale under Cmtrt. 15. — Wherarer there is a sale by the Coxirt, it is a necessary part of the title to sliew that the Court has jurisdiction to sell; and the vendor, though he may by his conditions protect himself from abstracting the pleadings in full, must set forth in his abstract so much of the proceedings in the suit as is necessary to shew that the Court had such jurisdiction. Waters t. Waters, 36 Law J. Eep. (n.s.) Chanc. 196. 18. — The rule of equity, that the Court will compel a purchaser under a decree for sale to tnke an equitable title, considered; and — Held, that the rule only means that it will compel the purchaser to take an equitable title, where it sees that, as a matter of conveyance, he can get in the legal estate. Freeland v. Pearson, Law Eep, 7 Eq. 2i6. (c) Mnla fides. 17. — A entered into a contract with B for the purchase of B's interest in certain mud lands, for 3,050/., in the event of an Act of Parliament, which was to be applied for in order to reclaim them, being obtained. The contract provided that B should be called upon to produce only the title from his vendor (C) to himself. C was one only of four claimants of the mud lands, but A was aware of this circulnstiince when he entered info the contract. The Act was passed, and A took possession of the mud lands thereunder, and com- menced operations to reclaim them, but he refused to complete his contract, upon the ground of their being conflicting claims to the mud lands. Upon a bill by A against B for specific performance of the contract : — Held, by Stuart, V.C., that evidence aliunde to shew want of title in C was not admis- sible ; and specific performance was decreed against A, on the ground that his contract with B was for the purchase of such right, title and interest as the vendor might have under C. On appeal, the decree was affirmed by the Lords Justices on the laf er ground. Hume\. Pocock, 35 Law S. Eep. (n.s.) Chanc 731 ; Law Eep. 1 Chanc. 379. Turner, L.J. — Eepresentations, which a pur- chaser had chosen to accept from the vendor's agent on the subject of the vendor's title, and which turn out in fact, but not when made, to have been known by the agent to be untrue, do not amount to such' fraud as absolves a purchaser from his contract. [And see supra No. 4, and infra No. 34.] (E) LlEN> (a) Vendor's. 18. — A vendor of property sold to a company, of which he was managing director, held to have waived his right of lien for unpaid purchase- money, by inducing a person to lend money to the company on debentures, saying that the deben- tures should be a first charge on the property of Digest, 1865-70. the company. In re Marine Mansions Company, 87 Law J. Eep. (n.s.) Chanc. 113; Law Eep. 4 Eq. 601. Petition to enforce vendor's lien. [See Eailwat Company, 26.] ' (J) Purchaser's, on purchase-money •prematurely 19. — A purchaser of an estate under a decree of the Court, was improperly kept out of possession by the pla,intifF for more than a year after he had paid his purchase-money into Court: — Held, that the purchaser was entitled to have paid to him out of the purchase-money sums in respect of the fol- lowing particulars, viz., first, an occupation rent for the period during which he had been im- properly kept out of possession ; secondly, arrears of tithes which he had paid ; thirdly, damage to the estate by improper management; and fourthly, the costs of obtaining possession. Thomas v. Buxton, 38 Law J. Eep. (n.s.) Chanc. 709 ; Law Eep. 8 Eq. 120. (F) Eescission op Conteaot. (a) By vendor. . 20. — A condition of sale provided in the usual form that if the purchaser should insist upon any objection or requisition as to the title which the vendor should be unwilling or unable to remove or comply with, the vendor might, in notice by writing, annul the sale. A purchaser, by his con- duct, continued to insist upon a requisition, which the vendor in the first instance had offered to comply with, but subsequently found that he was unable to do so: — Held, reversing the 'decision of Stuart, V.C, 35 Law J. Eep. (n.s.) Chanc. 461; Law Eep 1 Eq. 678, that the vendor, without formally calling upon the purchaser to waive the requisition, might, under the above condition, annul the sale. Buddell-^. S/mpson,36 Law J. Eep. (n.s.) Chanc. 70; Law Eep. 2 Chanc. 102. 21. — In a contract for sale of lands containing valuable quarries, there was a clause reserving to the vendors power to rescind if any objection should be persisted in, and another providing that compensation should be given for any error in the description of the property or the vendors' interest therein. The purchaser alleging that the right to the quarries was in a third parly, under an excep- tion of " mines and minerals " in one of the title deeds, asked for compensation, which the vendors ^ insisting that they could make a title to the quarries under a custom or by adverse user, re- fused to make, and upon the petitioner persisting in his demand they exercised their power of re- scinding : — Held, upon bdl filed by the purchaser, that the question between the parties Was one of title, and that the rescission was therefore justifi- able. Msivson V. Fletcher and others, 39 Law J. Eep. (n.s.) Chf nc. 583. (J) By purchaser. 22. — The -defendant agreed to sell to the plain- tiff certain lane's in New South Wales, free from incumbrances, p nd the greater part of the purchase-, 4H 602 VENDOE AND FtJECHASEE (F). money was paid. On investigation of the title it appeared that these lands were held, with other lands, under a Crown grant, containing various reservations and conditions, with a proviso for re- entry on breach of condition. The plaintiff filed his hill for specific performance, with compensa- tion on account of the reservations, offering to complete without compensation if the Court was of opinion that he was not entitled to it. An order was- made on appeal, declaring him entitled to compensation, and directing a reference as to the amount. In answer to this inquiry, it was found that the amount of compensq,tion could not be ascertained. The plaintiff then filed a supple- mental bill, asking that if the compensation could not be ascertained, the defendant might be decreed to repay with interest the part of the purchase- money which he had paid, and that the plaintiff might be declared entitled to a lien on the land for it : — Held, that as the plaintiff was not bound to take the property without compensation, and as the compensation could not be ascertained, he was entitled to the return of his purchase-money, with interest at H. per cent., and to a lien on the estate for the amount. Westmacott v. Eobins, 4 De Gex, F. & J. 390. 23. — Where a person sells property which he is neither able to convey or to enforce a convey- ance from other proper parties, the purchaser may repudiate the contract, and is not bound to wait to see if the vendor can induce some third person to join in making a good title. The plaintiff agreed to grant to the defendant a lease for twenty-one years, with a right to re-let ; but he had only a term of twenty years, and could not underlet without the Consent of his landlord. The defendant repudiated the contract. The plaintiff afterwards filed his bill for specific per- formance, and, pending the Suit, the landlord agreed to concur : — Held, that the contract could not be enforced, and the bill was dismissed with costs. Forrer v. Nash, 35 Beav. 167. 24, — At a sale made under an order of the Court in a mortgagee's suit, the parties had leave to bid. The conditions of .sale were silent as to there being any reserved price, or the vendors having any right to bid. The auctioneer at the sale stated that there was no reserve, but the highest bidder would be the purchaser; adding, however, that the parties to the suit had leave to bid : — Held, that a purchaser Who had bid 19,000^. had no right on that ground to be relieved from his purchase. Dimmock V. Hallett, 36 Law J. Eep. (n.s.) Chanc. 146 ; Law Rep. 2 Chane. 21. If the auctioneer had made the former statement alone the sale would have been had. Ibid. 25. — The vendor of a public-house contracted with the purchaser to make a good and proper assigntnent of the victualler's and other licences. It turhed out that the only licence under 9 G-eo. 4. c. 61 Was to his son, who was not the owner of the house, had only acted as servant, and had gone away, and could not be -found: — Held, that the vendor was unable to fulfil his contract, and was liable to refund the deposit money and recoup the purchaser in damages. Claydon v. Grein, Green V. Glaydon, 37 Law J. Eep. (n.s.) C. P. 226 ; Law Eep. 3 C. P. 511. 26. — In November, 1861, S agreed to purchase of the plaintiff "the mill property, including six cottages in E village " : — Held, that parol evidence was admissible to identify "the mill property," part of which was neither in the village nor in the parish of E, and that the contract was good within the Statute of Frauds. Plaintiff being, at the date of the contract, only equitably entitled under an agreement for sale from the beneficial owners, stipulated by parol that he should only be bound to shew such title as he was himself entitled to require from his vendors ; it was also agreed that all the property, part of which was then copyhold, should be sold as free- hold. The copyholds had as to a moiety been devised by a testator to his daughter B in fee, but were not surrendered to the uses of the will. After his death his two daughters A and B were admitted as coparceners, and the subsequent en- franchisement was made to them, their heirs and - assigns. After the enfranchisement, A being out of the jurisdiction, an order was obtained upon petition, under the 9th section of the Trustee Act, 1850, vesting her outstanding legal estate in trustees for B. Negotiations in respect of the title were carried on between the parties for three yearsr in the course of which the purchaser objected to the above order on the ground th.it it was ineffectual, and that a fresh order should be obtained under the 10th section of the Act. This was the principal requisition, and the only one with which the plaintiff refused to comply. In December, 1864, the purchaser gave notice that unless, within one week, the plaintiff would com- ply, or consent to comply, with the requisitions sent therewith, he should require a good and marketable title to the whole property, and in default of such title being shewn within five weeks, he should treat the contract as rescinded. After some further negotiation the plainfff, in August, 1865, filed his bill for specific performance: — Held, that the notice to rescind was a waiver of all delay up to that time, and an admission that the contract was then, in force; that the vesting order had been properly made under the 9th sec- tion of the Trustee Act, A beirg " solely seised upon trust " for B both tinder the admission and under the enfranchisement ; that consequently, the notice to rescind was bad, being also unreasonable in point of time. Decree made for specific perfor- mance, with a declaration that the defendant was bound to accept such title as the plaintiff could require from his vendors ; the inquiry in chambers to be limited to such requisitions as were specified in an opinion of counsel which had been sent to the plaintiff in June, 1863, and subject to which the title had then been accepted, and the purchaser was ordered to pay the costs of the suit up to the hearing. M'Murray v. Spiccr, 37 Law J. Eep. (n.s.") Chanc. 505 ; Law Eep. 5 Eq. 627. 27. — F entered into an agreement with B for the purchase of a leasehold farm for the residue of a term of 1,000 years from Michaelmas, 1599, at VENDOR AND PURCHASER (Q), (I). 603 sirentof Id., and he, paid a deposit of 4002. B agreed to deduct a good and marketable title, and to deliver an abstract of his title. The abstract delivered to F commenced with a conveyance of the 13th of September, 1800, which recited a lease of the 20th of January, 1606, by three persons from the Feast of St. Michael the Archangel, 1599, for 1,000 years, at the rent of Id., payable on the said feast day only, if demanded. The whole lease was not recited, but merely the parcels, the demis- ing part and the reddendum. F required an attested copy of this lease, and a covenant for its production by its legal possessor, and upon the failure of B to comply with such requisition, he rescinded his contract and brought an action to recover the deposit : — Held, confirming the judg- ment of the Court of Queen's Bench, that in the absence of any condition apprising F that he must be content with the title, without the pro- duction of the lease and without knowing its con- tents, he was entitled to rescind the contract and recover the deposit from B. Frend v. Buckley, 39 Law J. Rep. (n.s.) Q. B. 90 ; ]0 Best & S. 973 ; Law'Rep. S Q. B. 21 3. (G) Setting aside Sale: Suppbessio Veei bt PtTECHASEE. 28. — Sale by an old woman of 88 of an estate in possession for one-fourth its value set aside, she being in distress and without legal assistance, and being also under the impression that she could not make out a good title, while the purchaser, knowing that she could, concealed the fact from her. The doctrine of suppressio veri applied to a purchaser. Sumtnera v. Griffiths, 36 Beav. 27. (H) Intebest: Expenses: Outgoings. 29. — A contract for the purchase of land contained the usual clause that, if from any cause whatever the purchase should not be completed by the day therein named interest should be paid. There was a delay of upwards of ten years in consequence of the vendor having a, difficulty in establishing his title ; the interval was occupied by considerable litigation, undertaken with the knowledge and consent of the purchaser for the purpose of establishing the title. The purchaser had all along used the purchase-money in his trade : — Held, that no relief from thS strict appli- cation of the clause as to interest could be given. WUliams v. Glenton, 35 Law J. Rep. (n.s.) Chanc. - 28i ; Law Rep. 1 Chanc. 200. A suit being necessary in consequence of the vendor having died, and the property becoming vested in his infant children, a sum of 50?. was on this account allowed to the purchaser for costs; but he was ordered to pay all the rest of the costs of suit. Ibid. 30. — After contract for purchase of realty at 38,600/., completion being deLayed, the purchaser appropriated 38,000/., and gave the vendor notice that he had paid that sum to a separate account. The vendor, in reply, said nothing about the defi- ciency of the odd ."iOO/., but the purchaser pre- sently, having discovered it for himself, repaired it. Held, that this was a substantial appropriation of the whole purchase-money, and that the pur- chaser was only liable to pay over any interest he had received from the banker. Kershaw v. Kershaw, 'Ln.w Rep. 9 Eq. 56. 31.— Wliere the property of a vendor is occu- pied by him for the purposes of his business, and the purchaser makes default in payment of the purchase-money, until payment of which the ven- dor is not bound to give up possession, and the vendor continues the business, the ordinary rule that the vendor is entitled to interest after the time for completion, and the purchaser to rents and profits, does not apply ; and the onus of shew- ing that an occupation rent ought to be allowed, is thrown on the purchaser. Leggott v. Metropoli- tan Bailway Company, Law Rep. 6 Chanc. App. 716. 32. — Conditions of sale of leasehold property provided that the vendors should pay " all out- goings " up to the half-quarter day, when the pur- chase was to be completed : — Held, that under the term " outgoings," the above half-quarter's rent was payable by the vendors. Lames v. Gibson, 35 Law J. Rep. (n.s.) Chanc. 148 ; Law Rep. 1 Eq. 135. Defendant succeeding was not allowed his costs of a suit concerning 18/. where he bad refused a reference. Ibid. (I) PtTECHASEE. (a) Right to sue at Law. 33. — By a memorandum of agreement in writ- ing A agreed to purchase from B certain land, with the coals and minerals thereunder, on cer- tain terms ; and in the same memorandum B agreed to purchase from A all coal that he might from time to time require at the fair market rate : — ■ Held, that these were concurrent stipulations, and A, having failed to purchase the land from B, could not sue B for not buying from him the coal he required. Bankart^r. Bowers, Law Rep. 1 C. P. 484. [And see No. 5 supra.] {b) Duty of, to inquire. 34. — The owner of a house, with outhouses and curtilage, which adjoined a yard communicating with it by an open doorway, and used by the tenants of the house, the whole being inclosed by a wall, put up a notice on the premises that they were to be sold. An intending purchaser having inspected them, and being under the impression that the whole formed the property which was to be sold, made an oifer. Before any contract was entered into, an abstract was sent by the owner's solicitors to the solicitor of the intending pur- chaser, in which the property was described as a dwelling-house, curtilage, coalhouse, outhouses, and garden, and piece of ground between the dwelling- house, coalhouse and garden on the- one side of the river and ditch on the other, except a small piece of land, part thereof lately sold to a person named in the abstract. The purchaser's solicitor required to bo informed of the particulars of the 4h 2 601 VENDOR AND PUEOHASER (I) -VENUE. excepted piece of land, and that it should be marked out on the plan. The vendor's solicitor replied that the premises were too distinctly de- fined to admit of any mistake, and were bounded in by walls. He afterwards filled in a blank left to be filled in by him in the draft contract with the above description, adding "and which premises are snffijiently distinguished by boundaries," and the agreement was so signed. The vendor had no title to the yard, which, in fact, was the piece of land sold to the person named in the abstract : — Held, that the purchaser was not bound to in- quire further after this excepted piece, nor to blame for supposing that the yard was comprised in the agreement, and that as the representation uf the vendor's solicitor had tended, not to remove, but to confirm the error, a bill by the vendor for a specific performance ought to have been dis- missed with costs. Mox y v. Bigwood, i Da G-ex, F. & J. 351. (c) Constructive notice to. 35. — A solicitor, one of three trustees, executed an assignment of leaseholds, forming part of the trust estate, to a purchaser for value. The solici- tor, who had acted as such for all parties, had forged the necessary written consent of the cestui que trust to the sale, and the signatures of his two co-trustees to the assignment : — Held, that the genuine execution of the assignment by the solicitor passed the legal estate in one-third of tlie property, but that no beneficial interest passed to the purchaser, on the ground of constructive no- tice, the circumstance of fraud on the part of the 'solicitor not affecting the general rule. Boursot v. Savage, 35 Law J. Eep. (n.s.) Chanc. 627 ; Law Eep. 2 Eq. 134. The equitable doctrine of constructive notice as between solicitor and client is founded on the prin- ciple that the solicitor is " alter ego," and his knowledge is the client's knowledge. Ibid. {d) Conveyance to. 36. — The vendor of real estate, which was sub- ject to a mortgage in fee, died before completion of the contract for sale intestate as to his real es- tate: — Held, that his heir-at-law was a necessary party to the conveyance, in addition to his execu- tor and the mortgagee. Duty v. Na/der, 35 Law J. Eep. (n.s.) Chanc. 52. Covenants for title hy tenant for life. [See Covenant, 20.] (e) Sub-furchase : notice to vendor. 37. — -Notice to a vendor of an assignment by the purchaser of an uncompleted contract does not constitute the vendor a trustee for the assignee of the contract. M'Creight v. Foster, 39 Law J. Eep. (n.s.) Chanc. 228 ; Law Eep. 5 Chan_c. 634. P having contracted with 1? for the purchase of a lease at a price payable by instalments, and having paid more than half the purchase-money, di'posited his contract by way of equitable mort- guge with a banking company, and at the same time executed a deed poll, by which he bound to himself, upon the request of the banking company, to execute to them a valid assignment of his con- tract by way of mortgage. Notice of this trans- action was given to F, and acknowledged by him, but no steps were taken by the banking company for the completion of the contract. The balance of the purchase-money was paid by P, and F thereupon executed a conveyance to him, without giving notice to the banking company. P having afterwards conveyed the property to a purchaser, without notice, the banking company filed their bill against F, seeking compensation for the loss sustained by them thereby: — Held, reversing the decree of the Master of the Eolls, 39 Law J. Eep. (n.s.) Chanc. 228, that he was not liable, and the bill was dismissed with costs. Ibid. The aboVe case was affirmed, on appeal to the House of Lords, in session, 1872, sub nom. Shaw V. Foster. 'certificate. [See Legact and Sdocession Duty, 13.] Sale by Court : costs. [See Cosjs in Equity, 2, 3 ; Pbacticb in Equity, (KK).] Tenancy: agreement by furchaser to pay rent : distress. [See Landloud and Tenant, 9.] Underlease : surrender : attornment. [See Attobnment, 1.] VENIEE DE NOVO. [See Felony, 2.] VE.^JE . Privilege of the Attorney General for the Duchy of Cornwall. 1. — An information being laid in Middlesex, by the Attorney General for the Duchy of Corn- wall, for the recovery of dues claimed in respect of goods imported into a port 3,lleged to be parcel of the Duchy, the defendant applied to the Court to cliange the venue to Devonshire, upon the ordinary affidavit that the cause of action arose and the witnesbes resided there : — Held, first, that although the Attorney General for the Crown may not have a right in all cases to lay and retain the venue where he pleases, he has such right in the ease of such an information, it being a suit in the nature of a transitory action ; secondly, that in the case of such an information relating to matters affect- • ing the Dxichy of Cornwall, the Attorney General for the Prince of Wales would have the same right as the Attorney General for the Crown ; but, thirdly, that as documents relating to the Duchy of Cornwall would have to be produced from their place of deposit in Middlesex, there was no such preponderance upon the balance of convenience in favour of a trial in Devonshire as to call on the Court to interfere, or to render it necessary to decide the question of prerogative. The Attorney General for the Prince of Wales v. Crossman, 35 Law J. Eep. (n.s.) Ex. 215 ; 1 Hurl. & C. 568; Law Eep. 1 Ex. 381. VESTRY— VOLUNTARY SETTLEMENT (A), (B). 605 Changing vemte. 2.-^Where a summons by the defendants to change the venue from London to N was dismissed I y the Judge on the plaintifif undertaking to tax, if successful, as if tried at N, the undertaking was held to be binding on the plaintiff, although no .order had been drawn up and served. Claris and othmrs v. TIte Tyne Improvement Commissioners, 37 Law J. Rep. (n.s.) 0. P. 110; Law Rep. 3 C. P. 230. In taxing the costs on the footing of such un- dertaking, the Master lias a discretion as to what expenses would probably not have been incurred if the cause had been tried at N, and the Court will not interfere with such taxation unless it be clearly shewn that the discretion has been wrongly exercised. Ibid. 3. — Where a Judge in chambers, upon defen- dant's application, changed the venue t^o the county in which the contract was made and the breach took place, and the defendant resided, there being no preponderance of convenience in favour of the venue desired by either plaintiff or defendant : — Held, that the discretion of the Judge had been rightly exercised, and would not be interfered with. Levy V. Sice, Law Rep. 5 C. P. 119. VESTRY. Notice for holding vestry. 1.— The first section of stat. 58 Geo, 3. c. 69 which enacts that no vestry, or meeting of the in- habitants in vestry for any parish, shall be holden until public notice shall have been g ven, as there- in mentioned, does not apply to parishes created under the Chtirch Building Acts fur ecclesiastical purposes only, and which do not separately main- tain their own poor. The Queen v. Barrow, 38 Law J. Rep. (n.s.) M. C. 20 ; 10 Best & S. 67i ; Law Rep. 4 Q. B. 577. Froceedings at vestry. [See CitnECH Rate, 1.] JAabiXiiy of vestry for non-repair of high- way. [See Metropolis Local Man- agement Acts, o.] Legal proceedings by vestry. 2. — A vestry was empowered by Aft of Parlia- ment to indict any pi-rson wlio should stop or impede rights of way in tlie parish, and to take such other proceedings for opening thereof as 'should appear expedient : — Held, that the vestry must indict in the name of the Queen, and sue in equity in the name of the A ttorney General, and that they could not proceed in their own name. The Vestry of the Parish of Bermondsey v. Brown, 35 Beav. 226 ; Law Rep. i Eq. 204 A dedication to a parish of a right of way can- not be prestHned ; a dedication can only be pre- sumed from uninterrupted use, in favour of the public generally, and not in favour of a portion of the public, as of the inhabitants of a parish. Ibid, VOLUNTARY SETTLEMENT. (A) When effectual. (B) Validity as against Cbeditoes. (C) Validity as against Pukchasek. (B) CoNSTUUCTlON OF EiNES ON LeASES.' (E) Setting aside. (a) Improvidence. (6) Absence of power of revocation. (c) Undue influence. {1) Onus probandi. (2) Confirmation by settlor (d) Inadequacy of consideration, ^-c. (A) When effeotual. 1. — ^Where an instrument is in form a complete and immediate assignment, and of such a nature as to give the assignee a right as between him and the assignor to take or receive the property com- prised in it presently, it will, although voluntary, be supported in equity and considered as a perfect declaration of trust of such of the property as was not assignable at law. Bichirdson v. Richardson, 36 Law J. Rep. (n.s.) Chanc. 653; Law Rep. 3 Eq. 686. Therefore, where A, by a voluntary deed, assigned to B " all her personal estate," and appointed him her attorney to recover, receive and give receipts for the s.ime, it was held after A's death that two promissory notes, one payable to A, and the other to A or order, and the moueys secured thereby, passed to the donee, though the notes were not endorsed to liim. Ibid. (B) Validity as against Cbeditobs. 2. — In order to set aside a voluntary settlement as fraudulent against creditors, it is not necessary to prove an actual intention to delay creditors pre- sent to the mind of the settlor at the time. If the necessary consequence of the settlement is to hinder or delay creditors, the intentions will be presumed. Freeman v. Pope, 39 Law J. Rep. (n.s.) Chanc. 689 ; Law Rep. 5 Ghane. 538. Dictum of Lord Westbury, in Spircttv. Willows, 34 Law J. Rep. (n.s.) Chanc. 365 ; 3 De Gex, J. & S. 293, disapproved of. Ibid. Decree of James, V.G. 39 Law J. Rep. (n.s.) Chanc. 148; Law Rep. 9 Eq. 2(16, aifirmed, but his judgment commented on. Ibid. 3. — A volunteer under a voluntary bond is a creditor, as much entitled to the pi-otcction of the Statute of Elizabeth as a creditor for value, and a subsequtnt voluntary settlement will be set aside, although the volunti er debt may only be a post obit one. Adames v. Kalltlt, Law Rep. 6 Eq. 468. 4. — A trader, by a voluntary settlement settled all his property, present and future, reserving to himself a control over the settled property, upon his wife, for her separate use for life, with re- mainder to himself for life, with remainder to his children. Eive years alterwards he became bankrupt. In a suit by his assignees to set aside tiie settlemen'', although some evidence was adduced to pro e that the trader was in solvent oircumsttmces at the date of the execution of the 606 VOLUNTARY SETTLEMENT (B), (E). sottlement: — Helrl, that it was void ?is against his creditors under the stit. 13 Eliz, c. 6. Ware^. Gnrdn- r, 38 Law J. Eep. Chanc. 348 ; Law Hep. 7Eq. 317. 5. — A executed a Voluntary settlement, reserv- ing to himself a life estate. lie sulisequpntly mortgaged the property, and also suffered divers judgments to lie entered up against him: — Held (1), tliit the mortgagee was an incumbrancer on tlie iulierituice as well as on the life estate, for a voluntary conveyance can be set aside by a mort- gage as effectually as by a sale ; (2), that the judgment creditors were incumbrancers, only on the life estate, for their judgments give them no greater right in derogation of the voluntary settle- ment than the settlor himself would have liad; (3), that the principle of marshalling could not be ap- plied, and that the mortgagee therefore could not be restrained from resorting, in satisfaction of )iis debt, to the life estate, to the prejudice of the judgment creditors, whose sole security it was, though the inheritance was not exhausted. Dolphin v..Ai/lward, Law Eep. 4 E. & I. App. 486. . (C) Validity as against Pueohaseb. 6. — A executed a settlement of hereditaments, of which she was owner in fee simple, on herself for life, and, on her nephew B in fee. The con- siderations expressed on the deed were natural love and affection, and a covenant by B to in- demnify A against incumbrancfs. But it appeared from extrinsic "evidence, that an agreement by B, carried out, at considerable expense, by him subsequently to, but on the faith of the execution of the settlement, to change his place of residence at A's desire, was a consideration. A afterwards contracted to sell the estate to a stranger ; and the purchaser commenced the present suit for specific performance of the contract against A and B. The bill, on appeal by B, was dismissed by the Lords Justices, reversing the judgment ot the Master of the Rolls,.on the ground that, regard being"had to the covenant of indemnity and the agreement for chance of residence, the settlement was not volun- tary and without consideration. Townend v. Taker, 3) Law J. Rep. (n.s.) Chanc. 608; Law Eep. 1 Chanc. 446. The Court, in considering the question whetlier a settlement be or be not voluntary, does not regard the amount of the consideration for the settlement, but simply whether the transaction be bona fide one of bargain or of gift merely. Ibid. Semble— Persons taking interests under a settle- ment of realty alleged to be voluntary are properlv made parties to a suit for specific performance commenced by a subsequent purchaser against his vendor, the settlor. Ibid. SembVe — Where a settlement has been decreed to be set aside as voluntary, and therefore void ss against a purchaser, the Court will not hold the purchase-money of the realty subject to the trusts of the settlement. Ibid. Leach v. Deane, 1 Chanc. Eep. 78 ; cited by Lord Eldon, 18 Ves. 21, noticed and disapproved. 7. — The principle of this Court, established by a great number of cases is, that it will not inter- fore witli volunteers (in the legal sense of the term), but will leave them to their remedy at law, whatever tliat may be. The Court will neither, at the instance of tiie donor who repents his gift, causo the deed of gift to be delivered up, nor will it, at the instance of the donee, interfere to com- plete an imperfi-ct deed of gift. Re Hoghton v. Money, 3o Beav. 98; Law Rep. 2 Chanc. 164. A purchaser for value of real estate cannot come into the Court of Chancery to have a prior volun- tary deed, void under the 27th of Eliz. c. 5, de- livered up to be cancelled. The Court, in such a case, leaves both parties to their legal rights and remedies. Ibid. A B entered into a voluntary agreement as to a leasehold with C D, and he afterwards contracted to sell it to E F, for valuable consideration: — Held, that a suit by E F against A B and C D to have the rights of the p.-irties declared, and the voluntary agreement cancelled, could not be main- tained. Ibid. (D) Construction of : Fines on Leases. 8. — In a postnuptial settlement power was re- served to the settlor for life, and afterwards for the trustee, to renew leases on fines ; and trusts were declared as to the income and proceeds, and as to the fines which should be received by the trustee, bat none were declared as to those which might be received by the settlor : — Hold, (reversing the decision of James, V C.,) that the settlor, and not the trustee, was entitled to such fines. Simpson V. Bathurst and Hhspherd v. Bathurst, Law Eep. 6 Chanc. App. 193. (E) Setting aside. (a) Improvidence. 9. — A voluntary settlement was agreed to be made by a young lady, an orphan, some weeks before she attained 21, upon the recommendatiofl of the family solicitor, and was executed by her eight we"ks after she attained 21 without any in- dependent advice. Thereby she assigned to her step-father and an uncle as trustees the whole of her fortune upon trusts for herself for life, with remainder to her children or testamentary ap- pointees, and in case there were no children, then, in default of appointment, to her next of-kin. A power of raising 700^, and paying it to the settlor, was reserved, but the settlement contained no power of revocation, or of appointment by deed, and gave her no voice in the investments or in the appointment of new trustees ; — Held. that, although the solicitor and trustees acted really with the in- tention of benefiting the plaintiff, the settlement must be set aside on the ground of improvidence. Everitt \. Eoeriit, 39 Law J. Eep. (n.s.) Chanc. 777; Law Rep. 10 Eq. 403. (6) Absence nf power of revocation. 10. — It is the duty of a solicitor in preparing a voluntary deed of gift to protect his client by in- serting a power of revocation ; and the absence of VOLUNTARY SETTLEMENT (E)— WARRANT. 607 such a power -will invalidate the deed, unless those who claim under ft shew tliat the donor deliberately, and with full knowledge of the eon- sequences, refused to have the power inserted. Coutts V. Acwortk, 38 Law J, Rep. (n.s.) Chano, 694 ; Law Rep. 8 Eq. 568. (0) Undue infliience. (1) Onus probandi. 11. — The plaintiff, an aged widow lady, .child- less, and living alone though wealthy, being de- votedly attached to the memory of her husband, sought out the defendant, who professed to be a " medium " of communication between the spirits of living and of dead persons. By means of so- called spiritual manifestations which attended the defendant's presence, he acquired great ascendancy over the mind of the plaintiff, who adopted him as her son, and made large gifts to him, supported by irrevocable deMs. Subsequently, the plaintiff instituted a suit to set aside these gifts, on the ground that they had been obtained by undue in- fluence : — Held, that the onus of supporting the gifts and deeds rested entirely on the defendant, who must prove that the plaintiff's acts were " the pure, voluntary, well-unders-tood acts of her mind, unaffected by the least speck of imposition or undue influence"; and, the defendant being unable to make or prove such a case as was requisite for their support, the gifts were set aside. Lyon v. Home, 37 Law J. Rep. (n.s.) Chanc. 674 ; Law Rep. 6 Eq. 635. (2) Covfirmation by settlor : delay. 12. — The plaintiff, in 1857, immediately after coming pf age, executed a voluntary settlement of his property in strict entail on himself and his brother and sisters, under such circumstances that if he had filed a bill for that purpose at ouce the settlement would have been set aside. In 1859, by way of settlement on his marriage, he exercised certain powers contained in the deed of 1857, of charging a jointure and portions for his younger children. In 1868 he filed a bill to haVe the settle- ment declared void without prejudice to the join- ture and portions: — Held, that his acts in 1859 amounted to a complete confirmation of the settle- ment of 1857. Jarrattv. 0!dham, 39 Law J. Rep. (n.s.) Chanc. 349 ; Law Rep. 9 Eq. 463. 13. — A, in India, on his own responsibility in- vested money belonging to his brother B in Eng- land in indigo, which he consigned to B, and he recommended him in consideration of his (A) not charging commission, to settle 1,000^. on each of his two sisters, -which he suggested should be in- vested in spi-lter and consigned to him for sale, B acceded to this, and A sold the spelter and re- mitted the proceeds, nearly i,O00l. to B on account of his sisters. B retained the money, and gave his promissory note to his sisters for the amount : — Held, that the 4,000^. belonged to the sisters, and that the gift of it could not be recalled. In 1841, the sisters voluntary surrendered to their brother his promissory notes for money owing to them, but under such circumstances, that the transaction could not be sustained if com- plained of in due time. One sister died in 1852, and the other in 1857, and the brother died in 1860. In the following year a bill was filed by the representative of the sisters to set aside the transaction : — Held, that the plaintiff wholly failed, this being an attempt to rip up a transac- tion nineteen years old, when all the actors in it were dead, and which transaction they all under- stood at the time. Mackintosh v. Stuart, 36 Beav. 21. (d) Inadequaey of consideration, ^c. 14. — Conveyance by a mortgagor to the defen- dant of the equity of redemption in real estate, part of which was at the date of such conveyance in mortgage to the defendant, and other part of which was in mortgage to another person, set aside at the suit of the assignee in bankruptcy of the mortgagor, upon the ground of the relatiop of mortgagor and mortgagee, of pressure, of the in- solvency of the mortgagor at the time of the con- veyance, and of madequacy of consideration. Ford V. Olden, 36 Law J. Rep. (n.s.) Chanc. 651 ; Law Rep 3 Eq. 461. 15. — It is not easy to overcome the presump- tion that a man of mature age who has long acted as a legal practitioner is competent, in any ordinary transaction, to take care of himself. But in a family arrangement, where near relatives contract with each other, it is required that there should be on all sides uberrima fides ; and there is ah equity, which may be founded on gross inadequacy of consideration, where it involves the conclusion that the complainant either did not know what he was about, or was the victim of some imposition. Per Lord Westbury, Tenant v. Tenant, Law Rep. 2 ,Sc. App. 6. Declaration of trust. [See Teustee (A) Trusts for coUaterals in marriage settU- ment. [See Makeiage Settlement (H).] Incomplete gift by wife. [See Baeon and FiSME, 33.] WAGES. [See Shipping (V).], WARRANT. [1-1 & 15 Vict. c. 93, Ireland, amended, and assistant inspectors-general of constabulary au- thorised to back warrants. 30 &.31 Vict. c. 19.] A Justice's warrant of commitment in execution upon a conviction for a penalty in the first in- stance, under the 11 & 12 Vict. c. 43, s. 33, in the Form 1. given in the Schedule to that Act, di- rected " To the Constable of G," a parish in the county of L, must be read as directed to the parish constable of G, there being such an officer, who must execute it, and its execution by a 608 WARRANTY— WATERCOUESE. county policeman is illegal. Therpfore, a convic- tion for ■wounding a county policeman in the fxe- cution of the above warrant with intent to resist the prisoner's lawful apprehension was quashed. The Queen v. Saunders, 36 Law J. Rep. (n.s.') M.C. 87 ; Law Rep. 1 C. C. R. 75. Warrant of distress to levy rates vnder local Act. [See Jdsticb of the Peace, 7.] "WASTE. [Sec Tenant foe Life (A) ; Tenant in COMMON.] "WARRANTY. Of qvaUty : mlo of horse. [See CoNTnACT, 15; Peikcipai, and Agent, 13.] Of gudliiy : sale by sample. [See Sale, 2.] Of seavorthiness. [.?fe Marine Insur- ance (B) (c).] Impliid warranty by letter-out of race- stands. [See Negi.irencb, 25.] Of title : sale of fxtures by tenant. [See Salk, 6.] "WARREN. The Court has jurisdiction to set aside an agree- ment on the ground of mistake, but the mistake must he plain and palpable, and it must be pos- sible to replace the parties in that which was sub- stantially their original position. Earl Beavchamp V. Wyvn, 38 Law .7. Rep. (n.s.) Chane. 556 ; Law Rep. 4 thane. 662. The word " warren '' may pass an estate in the soil, provided the context of the instrument in which it is used shews that to be the intention, but its primary signification does not mean an estate in the soil. Co. Lit. 6 b (b) explained. Ibid. A person having a right of free warren, gene- rally may grant a limited right by the grant of " a warren of conies." Ibid. The Duchy of Cornwall in 1799 granted to a person under whom the plaintiff claimed, certain lands. " and all that warren of conies, with all and singular the rights, members and appurten- ances whatsoever in B, and that lodge or house thereupon built, commonly called B Lodge ; and all that warren of conies in R, boih which said warrens of conies are known by the name of B "Warren, and do extend themselves in and over the wastes or east moors of B, F, S and A, in the county of Lincoln." The duchy was seised in fee of the soil of the wastes, and had also a righ:. of free warren in gross in themselves : — Held, affirm- ing the decision of the Master of the Rolls, that by the words " warren of conies " taken with the context, no estate in the soil passed, but only the right or franchise of a "• wnrren of conies " and whatever was fairly incident to or necessary for the exercise of the right of presen'ing and making profit out of the conies. Ibid. "WATERCOURSE. Diversion of .artificial branch of natural stream. 1. — An old mill had been constantly worked since 1 804 by water taken from a natural stream by means of a weir and goit constructed by the original proprietor of the mill. The goit was made through the land of B, a riparian proprietor, under an agreement, not under seal, by virtue of which he was to'receive an annual payment of 5s. for allowing the water to pass that way to the mill. The present occupier of the mill brought this action against the defendant, a rip,arian pro- prietor above B's land, for drawing off the water of the stream, at a point above the weir : — • Held, that the action was maintainable. Per Martin, B.— The right to have a flow of water through another man's land to work one's mill is the subject of property and of grant, and not merely of licence. And even assuming that, as the agreement was not under seal, sixty years' possession did not confer a good title as against B, yet the actual possession and enjoyment of the goit gave the plaintiff a valid right of action against the defendant, a wrong-doer. Per Bramwell, B. — The plaintiff was thfl grantee of a right or mode of enjoyment which it was competent to B to grant mm ; and as such grantee he could maintain actions against those who disturbed him. Per Channell, B. — The plaintiff was a ripa- rian proprietor with respect to the goit, and had all corresponding rights to the water of the natural stream, though flow- ing in an artificial channel. Nuttall v. Bracewell, 36 Law J. Rep. (n.s.) Ex. 1 ; 4 Hurl. & C. 714 ; Law Rep. 2 Ex. 1. The doctrine laid down in The Stockport Water lUorlcs Company v. Potter, 3 Hurl. & C. 300, con- sidered. Ibid. Bights in artificial watercourse. 2. — Semble^That where an easement has been enjoyed from time immemorial by persons exer- cising rights in the dominant tenement, although- such rights are not derived from the owner, and are to some extent adverse to him, yet, in the absence of express proof as to the origin of the easement, the presumption is that it belongs to the land, and not to the persons exercising such rights. A tin-mine jn Cornwall, which had been worked from time immemorial by tin-boilnders under the peculiar custom of the county (by which a right to work mines, rendering a share of ore, may be ac- quired independently of the ownership), was aban- doned in 1856, and from that period had been worked by the plaintiffs, who claimed to be the owners of the mine, and were also owners of ad- joining mines. The tin-bounders had immemo- WATERCOUESE— WAY (A). 906 rially used, for tjie purposes of their mining opera-' tions, the water flowing from an old artificial watercourse, passing through the land of the de- fendants, and the owners of the adjoining mines had used the stream for more than the statutory period ; and, upon the flow of the water therefrom heing obstructed by the defendants, the plaintiffs filed their bill to restrain the obstruction : — Held, reversing the decision of Vice Chancellor Kinders- ley, 34 Law J. Eep. (n.s.) Chanc. 633, that the plaintiffs were entiUed to the relief prayed. Semble- — The decision would have been the same if the plaintiffi' case had rested only on the user by the tin-bounders, the presumption being that by such user an easement was acquired by the owners of the soil, and not by the tin-bounders ; and this whether the right was first acquired before or after the commencement of the working by the bounders. Ivimey v. Stacker, 35 Law J. Eep. (n.s.) Chanc. 467 ; Law Eep. 1 Chanc. 396. Gavcd V. Martyn, 34 Law J. Eep. (n.s.) C. P. 353, distinguished. Obstruction : liability of owner for wrongful act of strangers. 3. — In an action for obstructing the flow of water from a stream to certain works of the plain- tiff, the evidence shewed only that the defendants were owners of the soil of the stream, and that the obstruction had been placed there in order to use the water for certain works before it came to the plaintiff's works, but without the sanction of the defendants, and by persons who were strangers to the defendants, and between whom and the defen- dants there was no connection by title or otherwise. The defendants derived no advantage from the continuance of the obstruction, and offered to allow the plaintiff to enter and remove it, but they de- clined to do so themselves : — Held, that there was no evidence of a wrongful continuance of the ob- struction iy the defendants, and that under these circumstances the plaintiff was rightly nonsuited. Saxhy v. The Manchestir, Sheffield and Lincoln- shire EaUway Company, 38 Law J. Eep. (n.s.) C. P. 163; Law Eep. 4 C. P. 198. Bights by prescription, parliamentary contract, and special agreement. 4.— The S and W canal communicated, at its highest level, with the B canal at its lowest level. Owing to the unscientific construction of the locks on the B canal during a period of upwards of seventy years there had fiowed into the S and W canal, from the B canal, with every barge that passed up or down the latter into or out of the former, a much larger volume of water than need have passed or escaped if the system of locks had been more ingeniously contrived. The proprietors of the B canal proposed to im- prove the machinery on their canal, so as to put a stop to this unnecessary waste or flow of water. The proprietors of the S and W canal sought to restrain them, on the ground that they had ac- quired a prescriptive right by user, during a much longer period than forty years, to that amount of water which they had enjoyed during such period. They also claimed the right by parliamentary con- DiGEST, 1865-70. tract and by special agreement: — Held, affirmig, the judgment of the Lords Justices of Appeal overruling that of Stuart, V.C., that the true con- struction of the Acts of Parliament cited failed to establish the appellants' claim under the parlia- mentary contract, and that no special agreement was proved. The Staffordshire and Worcestershire Canal Navigation Company v. The Birmingham Canal Navigation Company, 35 Law J. Eep. (n.s.) Chanc. 757 : Law Eep. 1 E. & I. App. 254. Held, also, that had any such agreement or- grant been at any time made by the respondents' coppany, it would have been ultra vires and un- lawful. Ibid. Held, also, that as no grant could at any time have been lawfully made, no prescriptive right by user could be claimed or be deemed absolute or indefeasible under the 2nd section of the Prescrip- tion Act. Ibid. Held, also, that the doctrine as to use of water in natural or artificial streams, does not apply to water passing through locks in a canal, such water being accumulated under the authority of the , legislature, to be used in a particular manner for the benefit of the public. Ibid. Reservation of passage of water, [Sea Lease, 1.] Pollution of stream. [See Nuisance, 2.] Obstruction. [See Nuisance, 15-17.] Bight of action. [See Action, 6.] WAY. (A) Consteuction of Grant of Way-leave: Eight to Eoyaxtt. (B) Eesekvation till Lessor should alie- NIATE. (C) Excess of User. (D) Eight of Way oveb Sea-wall. (A) Construction of grant of Way-leave : Eight to Eoyalty. 1. — A way-leave over a piece of ground had been granted by an indenture of lease, comprising other lands, to the assignors of the appellants, the grantee or lessee covenanting to pay a small roy- alty on all minerals raised within twenty-one miles of the premises, and which should be brought "through, over, or under" the same. The original grantees were an iron and iron smelting company, and it was probable that (he intention of the cove- nant was to prevent neighl curing ore from being brought into unrestricted competition with the ore raised from the grantor's or lessor's mines, at the grantee's smelting works, or at the adjacent mar- kets. The piece of ground referred to was used by the appellants as a siding at one of their stations, and the traffic arrangements of the line became such that it was found convenient that waggons containing iron ore, raised both from within and from beyond the distance of twenty-one miles, should be brought on to this siding, be left there for a short time, and then be shunted back again and carried to distant stations. Thus no iron ore 4 I 610 WAY (B), (D)— WEST INDIAN ESTATES. was ever carried by the company through the piece of land, and the question was whether the royalty was payable under the covenant in respect of the ore thus brought by the railway company, as carriers, on to the land, and then carried back and away : — Held, affirming Wood, V.G., that upon th« literal and therefore only true construc- tion of the covenant, whatever may have been the original intention, the royalty was payable. The Great Western BaUway Company v. Eous and others, 39 Law J. Eep. (n.s.) Chanc. 563 ; Law Eep. 4 E. &. I. App. 650. (B) Eeservation till Lessor should alienate. 2. — In a lease for 95 years, a right of way over the demised premises was reserved to the lessor and his heirs, so long as they should retain ad- joining lands held in fee, and after he or they should alienate such adjoining lands then reserv- ing to the lessor, his heirs and assigns, a different right : — Held, that the reservations were valid, and that on alienation of the freeholds, the right of way ceased. Ardley v. The Guaidians of the Foor of St. Pancras, 39 Law J. Eep. (n.s.) Chanc. 871. (C) Excess of User. 3. — The owner of field A, who had a right of way over the plaintiff's close, for the more convenient use of A, made a gateway from field B into A, mowed both fields, stacked all the hay in A, and some mouths after sold the whole hay to the de- fendant, who carried it all away over the said way. The plaintiff brought an action of trespass, the defendant justified under the right of way, and the plaintiff new assigned excess: — Held, that whether there had been an excess of user was not a question of law ; but that it was a question of fact for the jiu-y whether the stacking and carry- ing away was a reasonable and proper user of the way for the purposes of field A, or merely colour- ably so, and really for the purposes of field B ; and on their finding that the former was the case, the defendant was entitled to the verdict on the new assignment. Williams v. James, 36 Law J. Eep. (n.s.) C. p. 256 ; Law Eep. 2 C. P. 577. (D) Eight of Way over Sea-wall. 4. — There is no such inconsistency between the powers and duties of Commissioners of Sewers to keep up a sea or river wall, and a right of way enjoyed by the public along such a wall, as to pre- vent such a right of way being acquired. The Board of Works for the Greenwich District v. Maiidsley and others, 39 Law J. Eep. (n.s.) Q. B. 205 ; Law Eep. 5 Q,. B. 397. Evidence of long and uninterrupted user may establish the right of way in such a case as well as in the ordinary case of a right of way claimed and used over the land of an individual. Ibid. Obstruction of way. [See Highway, 8, 17.] Dedication to the public. [See Highway(B).] Implied grant. [See Easement, 1.] Way of necessity. [Sec Easement, 2.] Waywardens : election of. [See Quo War- ranto, 3.] WEIGHTS AND MEASUEES. [Coinage. — So much of 5 Geo. 4. e. 74, sect. 12,5 & 6 Will. 4. e. 63, sect. 6, and 22 & 23 Viet. c. 66, sect. 6, as relate to fees repealed. 4 & 6 Will. 4, c. 15, sect. 7, repealed. 18 & 19 Vict. c. 72, sect. 6, repealed. 29 & 30 Vict. c. 82.] A shopkeeper made use of a pair of scales which had a hollow brass ball hanging upon the weight- end of the beam. These balls were constructed with a neck which could be unscrewed, so as to allow shot to be placed in the interior, and, although hung by a stout brass wire hook upon the beam, were easily removable from it by merely lifting them off. When one of these balls had been removed and replaced, after the shot with which it was partly filled had been removed, it was found that the scale was unjust and against the purchaser : — Held, that there was evidence upon which the magistrates might reasonably find that these scales were weighing machines incorrect or otherwise unjust, within the meaning of 5 & 6 Will. 4. c. 63, sect. 28. Oarr v. Stringer, 37 Law J. Eep. (n.s.) M. 0. 120 ; 9 Best & S. 238 ; Law Eep. 3 Q. B. 433. WEST INDIAN ESTATES. The right of lien is not tlie result of an express contract : it is given by implication of law. If, therefore, a mercantile relation which might in- volve' a lien is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agree- ment of the parties for security exclude lien, and limit their rights by the extent of the express contract that they have made. George Henry Chambers v. Patrick, James and Alexander David- son, 36 Law J. Eep. (n.s.) P. C. 17 ; Law Eep. 1 P. C. 296. If a consignee of West Indian estates takes an express security, it excludes a general lien. Ibid. By an indenture of mortgage, L & L (West Indian proprietors), in consideration of advances made by the respondents, mortgaged certain West Indian estates to the respondents. The deed contained covenants on the part of L & L to make annual consignments to the respondents. Ibid. By a certain other indenture of mortgage L & L, in consideration 'of advances made by the ap- pellant, mortgaged certain other West Indian estates to the appellant ; and by a certain other indenture of consignment L & L covenanted to consign to the appellant two-thirds of the produce of the estates mortgaged to the respondents so long as the mortgages to the appellant should con- tinue : — Held, that the appellant was not a con- signee of the estates so mortgaged to the respon- dents so as to be entitled to a general lien on such estates as such consignee. Ibid. WILL, CONSTRUCTION. 6H WILL. [See Annuity ; Hbiklooms ; Tenant for Life.] (1.)— CONSTRUCTION OF WILLS. (A) GrENEEAL Principles op Construction. (B) Parol Evidence of Intention. (C) Contingent Will. (D) Will in Execution of Power. (E) Descriptions of Property. (o) To what period referable, (b) What they comprise. (1) "Estate." (2) " Seal estate " : leaseholds. (3) " Personal property, estate and ef- fects." (4) " Freehold." (5) " Copyhold." (6) " Money," "ready money," " money due," ^0. (7) " Appurtenances." (8) Falsa demonstratio. (9) Lands in particular pariah or (10) Money to be produced by estate sold before legatee's death. (F) Residttabt and general Devises and Be- quests. (a) What they comprise. (1) Where residuary legatee is also specific devisee. (2) Trust and mortgage estates. (b) What words carry the residue. (c) Besiduary devise : whether specific, (Gr) Ambiguity and Uncertainty. (a) When bequest void for uncertainty, (i) Misdescription of legatee. (c) Inconsistency. (d) Charitable bequest. (e) Parol evidence : when admissible. (/') Misdescription in codicil of gift in will, (H) Who take. (a) Charitable bequests. (b) Gifts to a class. (1) Time of ascertaining members, (2) " Children." (i) Who comprised in gift to. (ii) Illegitimate children : when included or excluded, (c) " Nephews and nieces." (d) Personal representatives. (e) " Next-qf-/cin." (/) " Heirs." (a) Wife and ehUdren of son. (h) Whether trustees, ^c, take beneficially. («■) Per capita or per stirpes. (I) What Estate passes. (a) Joint tenancy or tenancy in common. (b) Fee simple or less estate. (1) Devise before Wills Act, without words of limitation. (2) Devise subsequent to Wills Act. (3) Estate of trustees. (o) Bule in Shrlley's case. (d) Absolute gift out down. (e) Estates tail or life estate. (1) Devises to sons, (2) " Die without issue." (3) " Children " .• whether word of pur- chase or limitation. (f) Estates by implication. Q) Cy-prh, ride of. (K) Absolute gift or trust, (i) "Sole." ' (K) Precatory Trusts. (L) Testing : gift over. (a) " Vested" : meaning of word. (6) G-ift over on death before legacy or (c) Gift over before receipt of legacy. {d) Gift over on death without leaving children, (e) Gift over on death without issue, if) Cross-remainders implied, (g) Gift with clause of forfeiture, {h) Direction for payment at given age. {i) Gift of income for maintenance of class. (Jc) Gift over on death of devisee under twenty-one, (I) Gift over before estate "vested." (m) Gift in defeasance of estate tail. (») " And " where to be read " or." (o) Hotchpot clause. (M) Substitution and Survivorship. (a) Substitution in testator's lifetime. (6) Substitutional gifts to children. (1) First gift impossible. (2) Whether children must survive parent. (3) Gift to children of a class • per capita. (c) Meaning of " survive!' (d) Period of survivorship. (1) Gifts to children and their issue. (2) " With benefit of survivorship," (3) Gifts to survivors of a class after tenancies for life. (e) "Surviving" when read "other." (/) Survivorship between co-tenants for life, (g) Accrued shares. (N) CoJtditional Gift. (0) Restriction or Alienation, (P) Secret Trust foe Charity. (Q,) Executory G-ift. (R) Trusts by reference to other Trusts. (a) Devise subject to the same conditions as other property, ^b) Exclusion of party otherwise entitled, (c) Limitations of personalty by reference to realty, (d) Limitation qf one share by reference to trusts of other share. (S) Remoteness. (T) Particular Words and Phrases. 4i2 612 WILL, CONSTEUCTION (A), (D). (2.)— VALIDITY OF WILLS AND REQ UlSITE FORMALITIES. (A) Competency of Testatob. (ffl) Animus disponendi. (b) Undue injhienoe. (e) Mental incapacity. (I!) What Papers are Testamentary, (C) Incorpoeationof ex-testamentary Papers INTO Will. (a) What papers will be held incorporated. (b) What will not. (D) Execution. (a) Signature not seen by witnesses. (6) Place of signature. (o) Seaman's will. (d) L'tx loci. (e) MistaJce in date. (B) Attestation. (a) What is sufficient. (b) Incapacity of attesting witnesses under 1 Vict. 0. 26, s. 15. (F) Alteration and Interlineation. {Gr) Will of Feme covert. (H) Eetooation and Revival of Will. (a) What amounts to revocation. (b) Dependent relative revocation. (o) Memorandum of revocation admitted to probate. (rf) What will effect a revival. («) Revocation by marriage. (I) Lost Will. (1.)— CONSTRUCTION OF WILLS. (A) Gentsbal Principles of Construction. In eonstriiing a will, the Court has regard to the period when and the circumstances under which it was framed ; and where the will is of an- cient date, if therB is any ambiguity in the con- struction, the course of action on the bequest since the will came into operation may be referred to in aid of the construction which has been adopted, on the ground that it is not to be assumed that a continued series of breaches of tru?t has been committed in the presence of those who are in- terested in an opposite conclusion. The Attorney General v. Sidney Sussex College, 38 Law J. Rep. (n.s.) Chanc. 656 ; Law Eep. 4 Ohanc. 722. Decree of the Master of the Rolls varied. Ibid. (B) Parol Evibencb of Intention. A testatrix was possessed of original shares in a company fully paid up, and of the same num- ber of shares not fully paid up, which had been issued one for every original share. She bequeathed specifically certain of her " shares " in the com- pany : — Held, that evidence co.uld not be admitted to shew that the testatrix intended by each speci- ficially bequeathed share a double share, consisting .of one of each class. Held, also, that the legatees were entitled to choose which single shares tliey would take. Mil- lard V. Bailey, 35 Law J. Rep. (n.s.) Chanc. 312 ; Law Rep. 1 Kq. 378, (C) Contingent Will. 1, — After the death of the testato* a will was found amongst his papers which had been executed two years previously, commencing " In case of any fatal accident happening to me, being about to travel by railway, I hereby leave all my property," &e. : — Held, that the will was not contingent upon the testator's death by accident during the jour jey he was about to take. In the goods of Poison, 35 Law J. Rep. (n.s.) P. & M. 54 ; Law Rep. 1 P. & D. 88. 2. — The deceased, being seriously ill, executed a paper, in which he stated that, in the event of his death occurring during his illness at A, he wished his property to be disposed of in a certain way. He recovered from his illness, left A, and did not die for twelve months afterwaris : — Held, that as the circumstances of the case shewed that the deceased did not intend that the Validity of his will should be conditional on his death at A, it continued operative after he had left that place, and ought to be admitted to probate. In the goods of William Martin, S6 Law J. Eep. (n.s.) P. & M. 116; Law Rep. 1 P. & D. 380. 3. — A test for ascertaining whether >i will is contingent is the question whether the disposition of property is dependent upon the happening of some event or calamity referred to in the will, or whether the imminence of such event or calamity is merely a reason for making the will. In the former case the will is contingent ; in the latter it is not. In the goods of Porter, 39 Law J. Eep. (n s.) p. & M. 12 ; Law Eep. 2 P. & D. 22. 4. — A made a will and codicil. He subse- quently executed a second codicil, which concluded as follows: "I give my wife the option of adding this codicil to my will or not, as she may think proper or necessary." The widow, who was also sole executrix, having exercised her option by re- fusing to recognise the validity of the ■second co- dicil, the Court decreed probate of the will and first codicil only. In the goods of John Smith, 38 Law J. Eep. (w.s.) P. & M. S5 ; Law Rep. 1 P. & D. 717. (D) Will in Exboution op Power. 1. — A testatrix bequeathed " all moneys belong- ing to her in the £3 per Cent. Consols " to two children and her son's widow. The only consols she was interested in were settled on her for life, with power to appoint amongst her children : — Held, that the will operated as an execution of the power as regarded the two-thirds to the two chil- dren, although it contained no other reference to the power or the subject of it. In re GratviicKs Settlement, 36 Beav. 215 ; Law Rep. 1 Eq. 177. 2. — A testatrix having a life interest in a trust fund, with a power of appointment among her children, made her will, and thereby, after reciting the power, made an appointment which did not exhaust the whole fund ; and after som« specific and pecuniary legacies to persons not objects of the power, and a direction to pay debts, &c., she gave the residue of her personal estate which should belong to ker a* her decease, or which by WILL, CONSTEUCTION (D), (E). 613 virtue of any general power she was able to dis- pose of, to an object of the power : — Held, revers- ing the decision of one of the Vice Chancellors, that the residuary bequest was not an exercise of the power. Butler v. Gray, 39 Law J. Eep. (n.s.) Chanc. 291; Law Eep. 5 Chanc. 26. 3. — A testator bequeathed a leasehold estate, after the death of his wife, upon the same trusts as she should by her will declare with respect to her residuary pei;sonal estate, and subject to, and in defe.ult of, any disposition by her of her resi- duary personal estate upon trust for his next-of- kin at the death of the survivor of himself and his wife. She survived him, and by will, after giving the leasehold estate, describing it as her property and estate, to one for life, gave all her real and personal estate to her executors upon trust for conversion, and to pay her debts, funeral and testamentary expenses and legacies, and " the residue of her property" equally among three charities, two of which were incompetent to take real or leasehold estate : — Held, that as to two- thirds of the leasehold estate there had been no disposition made by the wife, and that under the provisions of the testator's will they belonged to his next-of-kin. Bristow v. Skirrow, 39 Law J. Eep. (n.s.) Chanc. 840; Law Eep. 10 Eq. 1. , [And see Powee, 1, 15, 32.] (E) Desceiptions of Peopeetv. (a) To what period referable. 1. — The testator being entitled to a house, as to part in fee, and as to the residue for a term of years, gave the same, by the description of " all that my messuage, partly freehold and partly lease- hold, No. 3, C Street, together with other estates, to trustees, their heirs, executors, administrators, and assigns, upon certain trusts for his wife for her life, and then for his son H H, and his issue in strict settlement. The testator, after directing that the above estates, hereditaments and premises should not be sold, gave the residue of his estate and efiects upon trust for sale and division among his wife and children. Alter the date of the will the testator purchased the reversion in fee of the leasehold portion of No. 3, C Street, and took a conveyance thereof, whereby the term became merged: — Held, that the whole of the testator's interest in the house passed under the specific de- vise, j;he description being sufficient, and the will affording evidence that the testator did not intend that the freehold and leasehold portions of the house should be divided. Miles v. Miles, 35 Law J. Eep. (n.s.) Chanc. 3i5; 36 Beav. 191; Law Eep. 1 Eq. 462. 2. — A will contained a bequest of " all my ready money, bank and other shares, freehold property, plate (family), books, and any other property that I may now possess" : — Held, that the bequest com- prised what the testator had at his death, and was not confined to what he had at the date of the will. Cole V. Soott, 1 Mac. & G. 518, distinguished. Dictum of the Master of the Kolls in In re the Midlaaid Railway Company, 34 Eeav. 526, disap- proved. Wagstaffe v. Wagsiaffe, 38 Law J. Eep. (N.s.) Chanc. 528 ; Law liep. 8 Eq. 229. 3. — A testator by his' will in 1865 specifically devised certain houses, describing them as held under two leases. Subsequently he purchased the reversions which were conveyed to him in fee : — ■ Held, the freehold estate passed under the specific devise. Cox v. Bennett, Law Eep. 6 Eq. 422. (b) What they comprise. (1) "Estate:' 4. — The word " estate" and other similar words which, when Used in a will, are of themselves suffi- cient to pass real as well as personal estate, will not be cut down and confined to the latter merely because the accompanying expressions and the limitations and trusts of the will are applicable to personal estate only. Stein v. Ritherdon, 37 Law J. Eep. (n.s.) Chanc. 369. Therefore, where a testator in 1866, after spe- cific bequests of pure personalty, gave and be- queathed all the rest and residue of his estate and effects to trustees, their executors, administrators and assigns, upon» trusts applicable to personalty only, with an ultimate limitation to the next-of- kin : — Held, that a freehold house belonging to the testator passed under the residuary gift to the trustees. Ibid. 5. — A testator, after specific gifts of freeholds, leaseholds, and chattels, gave " all the rest of his household furniture, books, linen, and china (except as thereinafter mentioned), goods, chattels, estate and effects to E and S, their executors, adminis- trators and assigns," on trust. The testator then disposed of Ms " ready money," moneys to arise from a certain sale, "securities fur money" and moneys owing, and made certain specific bequests : — Held, following the decision of the Court of Common Pleas, in Sanderson v. Dobson, 7 Com. B. Eep. 81, and the decision of the Court of Queen's Bench, in 0' Toole v. Brown, 3 El. & B. 672 ; 23 Law J. Eep. (n.s.) Q,. B. 282, and overruling the decision of the Court of Exchequer, in Sanderson v. Dobson, 1 Ex. Eep. 141; 16 Law J, Eep. (n.s.) Ex. 219, that the whole of the testator's residuary estate, real and personal, pnssed to E and S by force of th« word "estate." Dobson Y. Bowmss, 37 Law J. Eep, (n.s.) Chanc 309 ; Law Eep. 8 Eq. 404. {And see Potee, 38.] (2) " Seal estate" : leaseholds. 6. — A devise, dated after 1837, of " all my real estate" without any words of locality or descrip- tion, will pass leaseholds if the testator have no other landed property. Gk% v. Davis, 39 Law J. Eep. (n.b.) Chanc. 684 ; Law Eep. 10 Eq. 662. A testator devised all his real estate whatsoever and wheresoever to trustees upon certain trusts. The will contained a residuary bequest of personal , estate. He was at the date of his will and of his death possessed of certain property which he be- lieved to be freehold, but which proved to be lease- hold. He had no other landed property: — Held, that the leaseholds passed under the devise. Ibid. 614 WILL, CONSTEUCTION (R). (3) " Personal property, estate, and effects." 7. — A gift by will of " the whole of my personal property, estate, and effects, of every and whatso- ever kind they may be," will not carry real 'estate. Belaney v. Belaney, 36 Law J. Eep. (n.s.) Chanc. 265 ;'■ 35 Beav. 469 ; Law Eep. 2 Chanc. 138. The assignee of a term of years-afterwards pur- chased the reversion, which was conveyed to a trustee for him in fee. In the deed _of conveyance was contained a recital of the purchaser's desire that the term should not merge. The purchaser afterwards made a will, bequeathing all his per- sonal estate : — Held, that the term passed by the bequest. Ibid. (4) "Freehold." 8. — A testator being entitled to several freehold properties, as to some of which he had the freehold in possession, and as to others in reversion, and as to the latter he was a sub-lessee, which term of course had not merged, devised all his freehold land, messuages, and describing the above, to two of his sons in fee : — Held, on the whole construc- tion of the will that the leasehold interest passed by the devise, the word " freehold" being considered descriptive of the property, not of the estate that was intended to pass. Matthews v. Matthews, Law Eep. 4 Eq. 278. (5) " Copyhold." 9. — One J C, having devised " all his freehold and copyhold estate" to S B for life, with power to devise the same, the said W O (who died in the lifetime of S B), by his will, devised " all that my copyhold messuages, cottages, lands and heredita- ments in the occupation of . . . S B . . . and to which I am entitled from and after her decease, that is to say, the house cottages and out- buildings and one moiety .... of the said lands and hereditaments " to E D, &c. ; and if she died without issue devised " all and singular the said messuages, cottages, moiety of land and heredita- ments so devised " to her brothers and sisters ; and as to and concerning " all that the other moiety of the said lands, hereditaments and premises" devised them to such brothers and sisters ; and as to and concerning " all that my other copyhold lands and tenements .... adjoining to the last- mentioned lands and hereditaments now also in the occupation of S B," after the decease of one A C to E D, &c. ; and by his codicil to the said will, recitingthat hehadby his will devised" all my copy- hold messuages, cottages, lands and hereditaments" to such brothers and sisters, restrained the devise to the full blood. At the date of the will S B was in possession of all the property originally devised by J C, and it consisted of a copyhold house (formed by S B out of what had. been three cot- tages), 18| acres of copyhold land, a freehold cot- tage, and half an acre of freehold land, such free- hold cottage standing on the freehold land, which was bounded, and almost surrounded by the copy- hold property : — Held, by the Court of Exchequer Chamber (aiiirming the judgment of the Court of Common Pleas), that the freehold passed by the devise. Cosby v. Millitigton and others, 38 Law J. Eep. (n.s.) C. p. 373. (6) " Money," " Beady money," " Money due" §-o. 10. — T by her will gave all her "money and securities for money of every description " : — Held, that these words did not carry Bank of England stock, shares in a canal company, or moneys in- vested on mortgage by and in the names of the trustees of the will of E E, a prior testatrix, of whom T was sole executrix, and to whose estate T was entitled as a residuary legatee subject to an outstanding unpaid legacy ; but, held, that the same words carried, first, moneys which had been advanced on mortgage by E F herself,' and allowed by her trustees for sixteen years after her death to remain invested on the same mortgage ; and, secondly, moneys which had been advanced by E P on mortgage, and on the mortgage having been paid off after her death had been received by one of her trustees as agent for T 0. Ogle v. Knipe, 38 Law J. Eep. (n.s.) Chanc. 692 ; Law Eep. 8 Eq. 434. 11. — The testator had at his death two sums of money at his bankers', one on a drawing account, the other on deposit, for which no notice of with- drawal was necessary ; and he was also entitled to proportionate parts of two pensions, and of interest on mortgages, and of dividends on shares and stocks : — Held, that a gift of his "ready money" passed the two sums upon drawing and deposit account, but not the pensions, interest or dividends. Steinv. Bitherdon,S7 Law J. Rep. (n.s.) Chanc. 369. 12. — A testator being entitled to some money secured on mortgage, and also to certain sums for portions charged on certain estates, gave "all money which at the time of my death shall be due or owing to me on mortgage from any person or persons whomsoever," upon certain trusts : — Held, that such bequest did not include the charges. Earl Foulett v. Hood, 35 Law J. Eep. (n.s.) Chanc. 263 ; 35 Beav. 234; Law Eep. 5 Eq. 115. [And see Legacy (B) (e).] (7) " Appurtenances." 13. — A testator was possessed of two buildings used as manufacjories of earthenware, one on the west and the other on the east side of a street. The buildings were capable of being used as sepa- rate manufactories, but for very many years they had' been used together, and they were occupied by the same tenants, A and B, at the time of the tes- tator's death. At that time, however, certain re- pairs were necessary in order to make the buildings on the east side available as a separate manufac- tory. The value of the building on the east side was about half that of those on the west. The testator, by a codicil to his will, devised his manu- factory on the west side of the street — describing it as in the occupation of A and B, with^the out- buildings and appurtenances thereto belonging — to certain devisees. The buildings on the east side were not specifically mentioned either in the will or the codicil, but there was in the will a general devise of all the real property to trustees for sale ; WILL, CONSTEUCTION (E), (F). 615 • — Held, affirming the judgment of the Court of Exchequer, 35 Law J. Eep. (n.s.) Ex. 11 ; 4 Hurl. & C. 37 ; Law Rep. 1 Ex. 46, that the buildings on the east side, although at the time forming part of the manufactory in the occupation of A and B, did not pass under the words of the devise in the codicil, as appurtenant to the manufactory on the west side. Smith and another v. Bidgioay, 35 Law J. Eep. (n.s.) Ex. 198 ; 4 Hurl. & C. 677 ; Law Eep. 1 Ex. 331. (8) Falsa demonstratio. 14. — Where a testator uses a description of parcels consisting of two distinct and separate parts, of which the first is complete and correct, and the second incomplete and erroneous, the maxim "falsa demonstratio non nocet" applies, and the part which is false will not cut down that which is true. White v. Birch, 36 Law J. Eep. (n.s.) Chane. 174. Seeus — Where the parts of the description are not distinct and separable. Ibid. A testator devised " all his freehold estates at or near E, in the parish of H," which was a com- plete and correct description of the property in- tended to pass. The context indicated an intention to pass the whole of such estate: — Held, that the gift was not narrowed by the erroneous addition of the words, " and now in my own occupation." Ibid. DoeY. FarJdn, 5 Taunt. 321, questioned. 15. — The will of A G- M, a markswoman, was as follows : — "I, A G M, being perfectly collected and in my right mind, wish to express my earnest desire that my personal property, consisting of money and clothes, shall be equally divided amongst," &c. : — Held, that the entire personal estate, and not merely the testatrix's money and clothes, passed. Dean v. Gibson, 36 Law J. Eep. (n.s.) Chanc. 657 ; Law Eep. 3 Eq. 713. 16. — Bequest of " four leasehold messuages '' construed to pass five messuages held under four leases, where the context of the will and extrinsic eTidenee assisted the Court to conclude that the bequest was a " falsa demonstratio." Sampson v. Sampson, Law Eep. 8 Eq. 479. (9) Lands in particular parish or . 17. — A testator devised all his freehold estates, consisting of "A H farm, in the parish of E," in the county of H, to W. Four years before the date of his will he had purchased forty acres of land adjoining to A H farm, situate in the parish of S, in the county of H, known by the name of the Southsea Lands, but from the time of the pur- chase they were occupied with A H farm proper : — HIjld, that these lands in the parish of S did not pass by the devise to W. 'Pedley v. Dodds, Law Eep. 2 Eq. 819. 18. — A person purchased a piece of land abutting on street on the east and on T street on the west. He built two houses, one in street and the other in T street, and he divided the property into two portions. By his will he devised " all that his freehold estate situate in T street " :— Held, that the whole property passed. Harman v. Gurner, 36 Beav. 478. (10) Money to beprodwced by estate sold before death of legatee. 19. — A testator gave his real and personal estate to trustees in trust, but with the consent of his widow, to sell and invest the produce and pfty the income therefrom and of his estate unsold to his widow for life, and after her death, he directed that the money to be produced by his estate, " sold before her death," should be in trust for such persons as she should by deed or will appoint : — Held, that the widow's power did not extend over real estate not sold during her life. " Effects " held to be ejusdem generis, and to apply to real estate. Cross y. Jfi^fo, 35 Beav. 562. (E) Eesiduaey and geneeai. Devises and Bequests. (a) What they comprise. (1) Where residuary legatee is also specific devisee. 1. — A testator, in his will, after directing that his debts and funeral expenses should be paid out of his personal estates, proceeded as follows : " All the rest of my worldly estate, both real and per- sonal, I give, devise and bequeath as follows." He then gave and devised to his natural daughter an estate in tail certain copyhold hereditaments, and also an estate tail in certain other copyhold heredi- taments. Then followed the residuary clause: "And all the rest, residue and remainder of my personal estate and eifects wheresoever and whatsoever, and, of what nature, kind or quality soever the same may be, moneys, securities for money, or whatever I may be possessed of or entitled to at the time of my decease, I give and bequeath the same to my said daughter to and for her own sole use and benefit absolutely" : — Held, that the reversions in fee expectant on the determination of the daugh- ter's estates tail in the copyhold hereditaments did not pass to her under the residuary clause. Cook v. Jaggard and others, 35 Law J. Eep. (n.s.) Ex. 76 ; 4 Hurl. & C. 181 ; Law Eep. 1 Ex. 126. Wilce V. Wilce, J Bing. 664 ; 9 Law J. Eep. (n.s.) C. P. 197, commented upon. Ibid. (2) Trust and mortgage estates. 2. — A testator, after reciting that he was or at the time of his death might be seised or possessed of or entitled to real and personal estate, (Jevised and bequeathed all and singular his said real and personal estate, whatsoever and wheresoever, to H, (a feme sole), her heirs, executors, administrators and assigns, for her and their own sole and abso- lute use and benefit : — Held, that certain trust estates, of which the testator was seised at his death, passed under the devise to H, but not to her separate use. Letois v. Matthews, 35 Law J. Eep. (n.s.) Chanc. 638 ; Law Eep. 2 Eq. 177. 3. — A testatrix directed all her just debts to be paid, then she gave some pecuniary legacies, and continued, " and as to all the rest, residue and remainder of my real and personal estate and effects, I give and devise the same unto my friend J T for her own absolute use and benefit" : — Held, that the legal estate in a mortgage of which tha testatrix was beneficial owner passed by the resi- 616 WILL, CONSTRUCTION (F), (G). duary devise to J T. In re Stevens' Will, Law Eep. 6 Eq. 597. 4. — A morlgagee devised and bequeathed all the residue of her property as to one moiety to her two daughters, to be equally divided between them ; and as to the other, to a trustee in trust for her two sons, half for each, to be paid on his at- taining twenty-five. Power was given to the trus- tees to sell, and to maintain and advance the sons out'of the income and capital respectively of their respective shares ; and there was a clause giving a benei t of survivorship between the sons and daughters: — Held, that the legal estate in the mortgaged lands did not pass by the will. Martin V. Laoerton, 39 Law J. Eep. (n.s.) Chanc. 166 ; Law Eep. 9 Eq 663. (6) What words carry the residue. 5. — A testator, after making a specific devise and certain bequests, devised and bequeathed all his other property to trustees, upon trust to con- tinue the same in the investments on which it should be standing at his death, or, at their, dis- cretion, to call in same and invest it on govern- ment or real securities, or debentures of railways or municipal corporations : — Held, that the gift of residue included the testator's residuary realty. Lloyd V. Lloyd, 38 Law J. Eep. (n.s.) Chanc. 458 ; Law Eep. 7 Eq. 458. 6. — The testator, in addition to specific be- quests, gave to A, the only legatee named in the will, " also any money that may result from the sale of my effects after paying the few small debts that I owe " : — Held, not to carry the residue. In ' the goods of J. E. O'Loughlin, 39 Law J. Eep. (n.s.j P. & M. 53 ; Law Hep. 2 P. & D. 102. 7. — A testator gave and bequeathed to his sister absolutely all his " houses and land and book- debts, household furniture, plate, linen, books, china, glass, books of art, drugs, hay, straw, pota- toes, and everything on the said premises," horse, gig, &c., " and all other chattels ": — Held, that the residue passed, " all other chattels " being meant to supply any omission in the previous enu- meration. In the goods of T. B, Sharman, 38 Law J. Eep. (n.s,) p. & M. 47 ; Law Eep. 1 P. & D. 661. " What is left ; my books, furniture, and all other things." [See infra (Q) 45.] Intestacy as to share of residue. [See Le- gacy, 24.] (c) Besiduary devise : whether specific. 8. — The specific nature of a residuary devise is not taken away by the fact that the 24th section of the Wills Act makes the will to speak as if executed immediately before the death of the tes- tator ; therefore, a pecuniary legatee is not entitled to marshal as against the residuary devisee in case of insufficiency of assets, but he is entitled to a pro rat4 contribution as against the residuary devisee. Decision of Kindersley, V. C, 35 Law J. Eep. (n.s.) Chanc. 743 ; Law Eep. 2 Eq. 627, re- versed. Hensman v. Fryer, 37 Law J. Eep. (n.s.) Chanc. 97 ; Law Eep. 3 Chanc. 420. 9.- Devise of freeholds to the use of testator's five 4aught6rs for their respective lives as tenants in common : remainder to trustees during the lives of the daughters " respectively ; " after the death of any daughter as to one-fifth to the use of her children attaining 21 or marrying in fee. Gift of residue, in trust for the persons who from time to time should be entitled to the freeholds under the f(jri'going trusts. One daughter. A, died in 1861, leaving an only child, W, who attained 21 in 1860. The devise to the children of each daughter, being a contingent remainder, failed as to W, owing to the failure of the particidar estate (See HoImesY.Frescott, 33 Law J. Eep. (n.s.) Chanc. 264, following Fcsting v. Allen, 12 Mee & W. 279 ; 33 Law J. Eep. (n.s.) Ex. 74) :— Held, that the share which had so lapsed passed under the resi- duary clause, and did not descend to the heir. Ferceval v. Perceval, Law Eep. 9 Eq. 386. (G) Ambiguity and TTnceetainty. (a) When bequest void for uncertainty. 1. — A trustee devised to each of his four daugh- ters a house and garden at G, to be built at the expense of his executors. A daughter, M, requir- ing the house, one was built with a garden by D, the executor, who was also residuary legatee and devisee : — Held, after the death of D, that the gift was not void, and that M was entitled to house and garden. Edwardes v. Jones (No. 2), 35 Beav. 474 2. — By his will the testator gave his residue amongst his nephews and nieces, excluding " John " Shutt. By a codicil he varied the limitation to this class, and excluded " William " Shutt, and, " as in his said will directed " : — Held, that the exclusion was invalid for uncertainty, and that they both took a share. Cope v. Henshaw, 35 Beav. 420. 3. — Bequest to the sons and daughters of A, in- cluding , who the illegitimate ol the said A : — Held, not void for uncertainty, but that it took efifect in favour of the legitimate chil- dren wholly. Gill v. Baqshdw, 35 Law J. Eep. (n.s.) Chanc. 842 ; Law Eep. 2 Eq. 746. [See Chabity, 7 ; Moetmain, 13.] {b) Misdescription of legatee. 4. — A testator knowing that his daughter C had been married in the year 1828, but that the husband had not been heard of for many years, made his will in the year 1849, by which he gave to C, by her maiden name of C L, interest of C A, the yearly interest of 1,000?. Bank stock, but in case C L should marry or die unmarried, then over. It was found that the testator meant by the description C L, the wife of J A. After the testator's death J A returned, and then his wife died: — Held, that there was an intention to exclude the husband, and that the gift over was good. Cros- thwaite v. Dean, Law Eep. 5 Eq. 246. 5. — A testator, after giving a legacy to each of several persons, whom he called respectively his nephews and nieces, gave the residue of his pro- WILL, CONSTRUCTION (G). 617 perty to be divided between all his nephews and nieces equally, share and share alike. At the date of the will, the testator had one nephew and one niece, who were both mentioned in the will, and there was no possibility of his having future nephews or nieces. The other persons mentioned in the will, and therein respectively called the tes- tator's nephews and nieces, were, in fact, the nephews and nieces by his wife : — Held, that the nephews and nieces of affinity were included in the gift of residue. Bmith v. Lidiard, 3 Kay & J. 252, distinguished. 4^dna/ v.Crreairex, 38 Law J. Kep. (U.S.) Chanc. 414. 6. — A testator devised real estate to one for life, and after his death to the use of Robert G, the fourth son of G H G, in case he, the said Robert G, should attain the age of twenty-one years ; but if he should die under that age, then to the use of , the fifth son of the said G H G. G H G had no son named Robert. His third son was named Robert Henry, and his fourth sou John William : — Held, that Robert Henry, the third son, was entitled. Gilletty. Gane, 39 Law J. Rep. (n.s.) Chanc. 818 ; Law Rep. 10 Eq. 29. 7. — Bequest of 2501. to each of the two children of S, who had three children : — Held, that each of the three children was entitled to 250^., and that the third child, to whom the executors, being igno- rant -of his existence, had paid nothing, was entitled to a decree against the residuary legatee (who had received the residue) for the legacy and costs of suit. Spencer v. Ward, Law Rep. 9 Eq. 507. [See CHAEirY, 6 ; Legacy (A) (a).] (c) Inconsistency. 8. — A testator gave all his household furniture, money, goods, chattels and effects to his wife abso- lutely. By a subsequent bequest in the same will, he gave the residue of his personal estate to her foi^ife, and on her death to two persons,- in equal shares, absolutely :— Held, by the Lords Justices, that the first bequest was limited in favour of the second bequest. Smith v. Davis, Jones v. Davis, Jones V. Davis, 35 Law J. Rep. (n.s.) Chanc. 874. 9. The principle that where there is a distinct disposition made by a will, that disposition cannot be revoked by a codicil except through the medium and use of words equally clear and distinct ; applied to a case of an absolute gift by will, subject to cer- tain conditions and purposes, and a revocation of the absolute gift by codicil, where it was held, that the conditions and purposes having failed the abso- lute gift remained, Kdktt v. Kellett, Law Rep. 3 E. & I. App. 160. XO,— Bequest of all testator's personal estate for payment of his debts, and the silrplus thereof to A absolutely ; followed by devise of real estate to trustees to raise by sale so much as his personal estate should prove insufficient for payment of his debts and of the existing mortgages on the real es- tate, and subject thereto to B. There were mort- gages, but they were not debts of the testator :— Held, that the devise did not so distinctly imply that the mortgages were to be paid out of person- DiGEST, 1865-70. alty as to cut down the previous bequest to A. Kerr v. Baroness Clinton, Law Rep. 8 Eq. 462. {d) Charitable bequest. 11. — A gift by the will of J B, residing in the Presbytery of Deer, in Aberdeenshire, was in these words : — " The whole of the balance of my pro- perty I leave to poor of this presbytery, to be divided, I mean the interest, by the sessions of the several churches, but to be paid to all Christians, except Roman Catholics": — Held, this bequest was not void for uncertainty. Charitable bequests are not to receive a "benignant construction," — meaning of this term. Costs out of charity. Bruce V. The Presbytery of Deer, Law Rep. 1 H. L. Se. 96. [And see Chaeitt, 4-7 ; Mortmain, 13.] (e) Parol evidence : when admissible, 12. — A testator appointed his " said nephew, Joseph Grant, executor " of his will. His wife's nephew of that name had resided with him for many years, and managed his business. There was also living a nephew, a brother's son, of the same name. Both claimed probate of the will : — Held, that parol evidence was admissible to shew the relation and circumstances in which the re- spective parties stood to the testator, and the sense in which he habitually used the word "nephew," when speaking of his wife's nephew. And the evidence shewing that the wife's nephew was the person meant, probate of the will was de- creed to him accordingly. Grant y. Grant, 39 Law J. Rep. (n.s.) p. & M. 17 ; Law Rep. 2 P. &D. 8. 13. — A testator devised property to " my nephew Joseph Grant," and there were two Joseph Grants ; the one his wife's nephew, who lived with him, and managed his business, the other his brother's son, of whose name and existence he was ignorant: — Held, affirming the decision of the Court of Common Pleas, 39 Law J. Rep. (n.s.) C. P. 140, that the word "nephew" might apply to either of them, that there was a latent ambi- guity, and that parol evidence of the position the one held as to the testator, and of the testator's ignorance of the existence of the other, was ad- missible to shew, and did shew that the testator meant the former. Grant v. Grant, 39 Law J. Rep. (n.s.) C. p. 272 ; Law Rep. 5 C. P. 727. [And see Executoe, 2 ; and supra (B).] (/) Misdescription in codicil of gift in will. 14. — By her will the testatrix gave 1,000/. amongst the children of her niece. By a codicil, she recited that she had, by her will given 1,000 A to F B, a son of her niece, and" she declared that the said legacy should not be payable until twen- ty-one, with power of maintenance: — Held, that the erroneous recital constituted no gift, and that P B was only entitled to a share of the 1,000/. Mackenzie v. Bradbury, 35 Beav. 617. 15. — By her will a testatrix bequeathed to plaintiff, in case she should remain in her sister's service, an annuity of 40/. and a legacy of 30/.- By a codicil the testatrix increased " the immedi- ate annuity of 30/." left by her will to plaintiff ta 4K 618 WILL, CONSTRUCTION (H). an annuity of HOl. : —Hold, that plaintiff was en- titled to the annuity of 501. as well as the contin- gent annuity of iOl. Ives v. Dodgson, 39 Law J. Rep. (n.s.) Chanc. 693; Law Rep. 9 Eq. 401. (H) "Who take. (a) Charitable bequests. 1. — A testator in 1641, devised lands to two colleges, one at Cambridge and one at Oxford, for educating ten of the descendants of certain persons named in his will in piety and learning : — Held, that this was a gift to the two colleges as tenants in common, subject to the trust of educating the persons specified in the will in piety and learning, according to the course and usage of education in the colleges respectively, and according to the re- gulations and discipline thereof. The Attorney General v. Sidney Sussex College, 38 Law J. Rep. (n.s.) Chanc. 656 ; Law Rep. 4 Chanc. 722. 2. — Houses were devised to a city company " for this intent and purpose and upon this con- dition," that they should make certain annual charitable payments, the " rest of the profits " of the premises being directed to be bestowed on the reparation of the houses : — Held, in affirmation of the Master of the Rolls, 38 Law J. Rep. (n.s.) Chanc. 686, that there was no devotion of the ■whole property to charity, but that the testator intended gifts of specific amounts to specific ob- jects, and that the surplus income vested bene- ficially in the corporation on a condition to make such payments. The Attorney General .v. The Wax-chandlers' Company, 39 Law J. Rep. (n.s.) Chanc. 782; Law Rep. 5 Chanc. 503. (b) Gifts to a class. (1) TiTne of ascertaining members. 3. — A bequest was made to all the children of A " now born or hereafter to be born, who shall attain twenty-one," in equal shares, with powers of maintenance, accumulation and advancement out of presumptive shares ; — Held, that the mem- bers of the class were not to be ascertained at the time the first of them attained twenty-one, but that all the children were to be let in. Bateman V Gray, 37 Law J. Rep. (n.s.) Chanc. 592 ; Law Rep. 6Eq. 215. (2) "Children:' (i) Who comprised in gift to. 4.— Gift by will to M C for life, and after her death to " all and every the children of the said M C who shall survive me " : — Held, to include children of M C born after the death of the tes- tator. In re Clark's Estate, 3 De Gex, J. & S. 111. 5. — A testator having made gifts to three children of his first marriage, gave his residue to his wife for life, with remainder to the five child- ren of his second marriage (by name) and such other child or children as should be living at the time of his death :— Held, on the context, that the children of the first marriage were not included in the residuary gift. Lovejoy v. Crafter, 35 Beav. 149. 6. — A testator was domiciled in a province of India by the law of which the rules applicable to wills depended on status determined mainly by religion, and indefault of specific regulations were to l3e the rules of justice, equity, and good con- sdenee. The testator was of no distinct religious sect, and had no special status. He bequeathed certain -property to his sons and their children, and an illegitimate child of one of the testator's sons born some years after the testator's death claimed to share with a legitimate child in the bequest as included in the term " children " :— Held, that the rule of English law by which the claimant would have been excluded as illegitimate was not to be followed ; that effect was to be given to the bequest according to the actual meaning with which the testator used the word " children," that the testator intended to include in the class children of his son's illegitimate children of his son's whenever acknowledged by theirfather, and that the claimant was entitled. Barlow v. Orde, Law Rep. 3 P. C. 164. (ii) Illegitimate children : when included or excluded. 7. — The rule that the law does not allow pro- vision to be made for future illegitimate children, held to prevail where a woman, having gone through the form of a marriage with her deceased sister's husband, by her will gave her property to trustees, "for each and every of her childjen, legitimate or otherwise." And it was held, that a child born at the date of her will took the whole to the exclusion of subsequently born illegitimate children. Howarth v. Mills, Law Rep. 2 Eq. 389. 8. — Bequest to illegitimate children in shares, for life ; remainder to their children ; and on either dying without issue, to the next-of-kin of that child, according to the Statute of Distributions. One child died without issue: — Held, that the other children were not entitled to the deceased child's share as personse designatse, although there was a proviso in the will that children's shares accruing to them as next-of-kin should be held upon the same trusts as their original shares. The testator himself being illegitimate : — Held, that his widow and the Crown took in moieties under the above statute. In re Standley's Estate, Law Rep. 5 Eq. 303. 9. — A testator by will made a beqneit to his illegitimate son T by name, and he divided the proceeds of his residuary estate into seven parts, one of which he gave to his wife for life, with remainder among his children, to whom he gave the other six" parts; and he gave such six parts among all his children, except his said son T. Besides T the testator left six children, of whom one daughter A was also illegitimate: — Held, that A was not entitled to a share as one of the tes- tator's children. In re Wells's Estate, 37 Law J. Rep. (n.s.) Chanc. 553 ; Law Rep. 6 Eq. 599. 10. — Where an unmarried woman, describing herself as such in her will, bequeaths property "to be equally divided between and among all my children," her illegitimate children will take. Semble— Had she afterwards married, the will WILL, CONSTRUCTION (H). C19 would have been revoked, and a legitimate child could not have taken under it. Clifton v. Goodbun, Law Eep. G Eq. 278. 11.— Bequest : "To my sisters, MSB (her maiden name) and her two youngest daughters, and B and her children, for her own sole and absolute use, each sister to receive an equal share and proportion. M S R was a spinster at the death of the testator, but had three illegitimate children, daughters, who were reputed and held as her children; and B had one child: — Held, that the property was to be divided in moieties — one to be divided between M S R and her two youngest daughters, and the other between B and her child. Savage v. Robertson, Law Rep. 7 Eq. 176. 12. — A testator, at the date of his will, had a wife living by whom he never had issue, but by another woman who was commonly supposed to be his wife he had then had three children (only one of whom survived him), and after thp date of his will he had by her another child who survived him". All these children were known by his name and treated as legitimate. By his will, in which the mother of these natural children was through- out referred to as his wife, he directed his residuary estate after her death or " second " marriage to be divided among all his children equally, and in case there should be only one, then the whole to go to such child : — Held, that the child born be- fore the date of the will and surviving the testator, w:is sufficiently designated and was entitled to the whole fund. Lepine v. Bean, 39 Law J. Rep. (n.s.) Chanc. 847 ; Law Rep. 10 Eq. 160. [See Lkgacy (A) (6) ; Confuct of Laws, 1.] (c) " Nephews and nieces." 13. — A testator, by his will, gave the residue of his personalty to his nephews and nieces living at his death, in equal shares. By a second codicil to his will he gave to " his nephew J M B " 100/. By a third codicil he declared that such 100/. was given to J M B "in addition to the share of resi- due given to him by his will, it being his intention that he should receive first the said 100/.. and afterwards, in addition thereto, the said share of residue." The testator died leaving several nephews and nieces, and also several grand- nephews and grand-nieces, and J M B was one of such grand - nephews : — Held, that the grand- nephews and grand-nieces of the testator living at his death were entitled to participate in the residue. )¥eeds v. BrUtow, 36 Law J. Eep. (n.s.) Chanc. 839 ; Law Rep. 2 Eq. 333. {d) " Personal representatives." 14._Bequest of 1,000/. stock, the interest to be paid to D for her life, and at her decease the stock "to be transferred to her personal repre- sentatives " : — Held, that as the primary meaning of the words " personal representatives " was executors and administrators, and there were no words to control the meaning, D took absolutely, and not her next-of-kin substitution ally. Alger v. Parrott, Law Bep. 3 Eq. 328. 15. — Bequest of three several sums to testator's .three daughters for life, and in default of appoint- ment the same to go and be paid to their next personal representatives : — Held, following Booth V. Vicars, 13 Law J. Eep. (n.s.) Chanc. 147 ; 1 Coll. CO. 6, that, by reason of tlie word " next," the ultimate limitation could not signify executors or administrators; and, following Withyy. Mangles, 10 Law J. Rep. (n.s.) Chanc. 391 ; 10 01. & F. 215, that the nearest-of-kin, and not the next-of- kin, according to the Statute of Distributions, took as joint tenants. Stookdale v. Nicholson, 36 Law J. Eep. (n.s.) Chanc. 793 ; Law Eep. 4 Eq. 359. .Topping v. Howard, 4 De Gex & S. 268, observed upon. Ibid. 16. — Bequest to trustees for F for life, then to such persons " related by blood " to F, as she should appoint ; in default of such appointment " to such person or persons as would be the per- sonal representatives of my said daughter (F) in case she had died sole and unmarried : — Held, no appointment having been made, that "personal representatives" meant next-of-kin under the Statute of Distributions. In re Gryll'a Trusts, Law Eep. 6 Eq. 689. («) "Next-of-kin." 17. — A bequest was made, in a certain event, which happened, to " A's next-of-kin in blood, as if A had died unmarried." A left surviving her a sister and several nephews and nieces : — Held, by the Lords .Justices, in reversal of a decision of the Vice Chancellor of the County Palatine Court of Lancaster, that the sister, being A's next-of-kin in blood, was solely entitled, to the exclusion of the nephews and nieces. To entitle the next-of-kin according to the Statute of Distributions there must, in order to take the ease out of the authority of Withy v. Mangles, 10 Law J.'Eep. (n.s.) Chanc. 391 ; 10 CI. & F. 215 ; be an express reference to the statute, and not one which has to be spelt out of the words of the will. Hdton V. Foster, 37 Law J. Rep. (n.s.) Chanc. 547 ; Law Rep. 3 Chanc. 505. 18. — The testator gave, in a certain event, all the residue of his estate to " the person or persons exclusive of my surviving grandchild, who, under the Statute for the Distribution of the Personal Estates of Intestates, would, immediately after the decease of the survivor of my other two grandchildren, be entitled to my personal estate." At the period in question the surviving grandchild was the sole next-of kin :— Held, that the persons who would have been next-of-kin if the surviving grandchild had been dead at the period in question were entitled. White V. Springett, 38 Law J. Eep. (n.s.) Chanc. 388 ; Law Rep. 4 Chanc. 3Q0. Power of appointment among family, [See PowEH, 4.] (/) "Heirs." 19. — Residuary personal property was devised upon trust for A for life, with remainder upon trust for the benefit of the " heirs of the body " of A, first to educate the said heirs and to pay the said heirs at their respective ages of twenty-one as A should appoint : — Held, that the " heirs " 4k2 G20 WILL, CONSTRUCTION (H), (1). were the next-of-kin, descendants of A. In re Jeaffreson's Trusts, 35 Law J. Rep. (n.s.) Chanc. fv22 ; Law Rep. 2 Eq. 276. Part of a fund was appointed under a power to au object of the power, subject to a charge not within the power : — Held, that though the charge was void the appointment was valid. Ibid. 20. — A testator, after bequeathing- shares of his personal estate to each of his living brothers and sisters, their "heirs and assigns," bequeathed another share " to the heirs and assigns for ever of my late sister D B, now deceased": — Held, that under this bequest the next-of-kin of t> B, at her death, according to the Statutes of Distribution, were entitled. In re Newton's Trusts, 37 Law J. Rep. (n.s.) Chanc. 23 ; Law Rep. 4 Eq. 171. 21. — A testator who had a power of appointing a sum of stock subject to the life interest of his wife, bequeathed it after her death " to be divided between my children then living or their heirs." He had seven children, two were dead at the date of his will, one of whom left a son A. Thrfe sur- vived the testator, but died in the lifetime of the tenant for life and two survived the tenant for life : — Held, that the heirs of all the five deceased children wore to take with the two who survived ; that " heirs " meant next-of-kin, that the next-of- kin were to be ascertained at the death of each child, except those who died in the testator's life- time, whose next-of-kin were to be ascertained at the death of the testator. In re Philip's Will, Law Rep. 7 Eq. 151. 22. — A testator gave a mixed fund of real and personal estate to A, charged with the payment of annuities to testator's six children " or their heirs :" — Held, that the annuities were personal estate, and that the statutory next-of-kin of one child ■n ho was dead at the date of the will were en- titled to one of the annuities. Parsons v. Parsons, Law Rep. 1 Eq. 260. 23. — Grift by will of personalty on the death of A to be divided equally among testator's children or their heirs, one child having died in the life- time of A: — Held, that the next-of-kin, of such child according to the statute took by way of sub- stitution. In re Philip's Will, No. 21 supra, fol- lowed. Finlason v. Tatloclc, 39 Law J. Eep. (n.s.) Chanc. 422 ; Law Eep. 9 Eq. 258. (.9) Wife and children of son. [See Legacy, 5.] {h) Whether trustees, ^c., take beneficially. 24. — Distinction between a gift by will " upon trusts " and " subject to .trusts." A testator be- queathed all his personal estate to his grandson, his executors, administrators, and .is- igns, " sub- ject to the payment of my debts, personal and testamentary expenses, and legacies, and to the trusts hereinafter contained." All subsequent gifts commenced with the phrase " upon trust." The trusts did not exhaust the entire personalty: — Held, the grandson took the residue beneficially ; although the will contained a specific bequest to the grandson, and also a gift of a legacy in re- jnainder. Clark v, Hiltrm, Law Rep. 2 Eq. 810. 25. — A testator devised and bequeathed to two persons, whom he also appointed his executors, all his real and personal estate " in and for the con- sideration of paying over" the income thereof^ " after deducting rates, to his wife: — Held, that, subject to the wife's life estate, there was a result- ing trust for the testator's heir and next-of-kin. Bird v. Harris, 39 Law J. Rep. (n.s.) Chanc. 226 ; Law Rep. 9 Eq. 204, (i) Per capita or per stirpes. 26. — A bequeathed the residue of his property to the descendants of his brothers and sisters of his father who might be living at the time of his decease, such descendants to take as tenants in common per stirpes, and not per capita : — Held, first, that the stirpes were the brothers and sisters of the testator's father, and the residue must be divided into as manv shares as there were such brothers and sisters ; secondly, that the expression " per stirpes " ran through the whole range of descents, and was repeated toties quoties ; so that no descendant could take if the ancestor through whom he traced was living at the death of the testator. Gibson v. Fisher, 37 Law J. Rep. (n.s.) Chanc. 67 ; Law Rep. 5_Eq. 51. Robinson v. Shepherd, 10 Jur. N. S. 63, disap-- proved, and not followed. (I) What Estate passes. (a) Joint tenancy or tenancy in common. 1. — A testator gave the interest arising from certain property to his niece for life, and after her death, the principal to go to her children or heirs for ever. Two of her children died in her lifetime : — Held, that the surviving children took as joint tenants. Ruck v. Barwise, 35 Law J. Rep. (n.s.) Chanc. 16. 2. — Testator, by the same, will, gave his re- siduary estate to W and S, to be held jointly or divided equally at their pleasure " : — Held, that W and S took as tenants in common. Oakley v. Wood, 37 Law J. Eep. (n.s.) Chanc. 28. 3. — A testator bequeathed personal estate to his widow absolutely " for the benefit of herself and her children " : — Held, that the children took as joint tenants, whether in remaindei: or otherwise. Armstrong v. Armstrong, 38 Law J. Rep. (n.s.) Chanc. 463 ; Law Rep. 7 Eq. 518. Semble — The construction of the gift would be to the widow for life, with remainder to her children. Ibid. One of the testator's daughters married : — Held, that her marriage did not operate as to her share as a severance of the joint tenacy. Ibid. 4. — Gift to three 'persons by name for their respective lives, and subject thereto for their re- spective children as tenants in common. The life tenants are tenants in common, and the children take per stirpes. Sutclijfe v. Howard, 38 Law J. Eep. (n.s.) Chanc. 472. (b) Fee simple or less estate. ( 1 ) Devise before Wills Act without vsords of limitation. 5. — A testator, being stissd in fee of two ua^li--' WILL, CONSTRUCTION (I). 621 vided fourth parts of land under lease to different persons, devised one of them by the following words, " I give unto Joseph Manning all my undi- vided quarter of three fields in the parish of Plympton Maurice, and are at lease to Miss Eli- zabeth Palmer on three lives ; conventionary rent, 13s. id.; heriot, 10s. on each life dying; known and commonly called Castle Hayes ; to be received by the said Joseph Manning or his father for him " : — Held, that Joseph Manning took an estate in fee, and not an estate for life merely. Manning V. Taylor and others, 35 Law J. Hep. (n.s.) Ex. 145; 4 Hurl. & C. 382; LawBep. 1 Ex. 235. Doe d. Atkinson v. Fawcett, 3 Com. B. Eep. 274 ; 15 Law J. Eep. (n.s.) C. P. 244, followed. 6. — The rule that, in construing a will under the old law, a devise without words of inheritance carries the fee if the will contains a gift over in case of the death of the devisees before a, given period or under given circumstances, applies equally whether the interests of the devisees are vested or contingent. In re Harrison's Estate, 39 Law J. Rep. (n.s.) Chanc. 501 ; Law Rep. 10 Eq. 532. Where, therefore, a testator, who died in 1807, devised real estate to A and B for their joint lives and the life of the survivor with remainder to such of their children as should be living at the death of the survivor as tenants in common, and in case of the death of any child during the life- time of the tenants for life leaving issue, devised the share of such child among his children as tenants in common : — Held, that the children and grandchildren of A and B, who became entitled to any share in the testator's property on the death of the survivor of A and B, took a fee simple in -the shares to which they then became respectively entitled. Ibid. 7. — The following devise, made before the Wills Act, — "As touching such worldly estate wherewith it hath pleased God to bless me in this life, I give and bequeath to my well-beloved wife M A, whom I likewise constitute, make and ordain my sole executrix of my last will and testament, all and, singular my lands, messuages and tenements, by her freely to be possessed and enjoyed, together with all my houses and household goods, deeds and movable effects ; all ray children to be edu- cated and settled in business according to my wife's discretion": — Held, affirming the deci- sion of the Court of Queen's Bench, 35 Xaw J. Eep. (n.s.) a. B. 570; 7 Best & S. 683; Law Eep. 1 Q. B. 57, to carry the fee to the executrix, as the testator must be presumed to have meant to confer upon his wife such an estate as would secure her from loss in carrying out his directions, whether they were obligatory or not. IJoj/d v. Jackson and others, 36 Law J. Rep. (n.s.) Q. B. 169 ; 7 Best & S. 698 ; Law Rep. 2 Q. B. 269. 8. — By a will made before the 1st of January, 1838, a testatrix, as to the " estates " wherewith it had pleased God to bless her, gave, devised and disposed thereof in manner following, that was to say : — First, she gave and devised to A and B, and their heirs, certain specified hereditaments of ga- velkind tenure (not using the 'word "estate"), to ■hold the said several premises, with their appur- tenances, unto the said A and B, their heirs and assigns, to and for several uses, " estates," intents and purposes thereinafter expressed, limited and declared of and concerning the same (that was to say), to the use of her grandson S for-his life and from and after the determination of that estate to the USB and behoof of the said A and B, and their heirs during the life of S ; in trust to preserve the contingent uses and remainders thereinafter limited ; and from and immediately after the decease of S, to the use of all and every of the child and child- ren, if more than one, of his body lawfully begot- ten or to be begotten (without any words of in- heritance), but if he should die without leaving such issue, then to the use and behoof of her grandson C for his life. Then there were trusts to preserve contingent uses and remainders, and then the property was to go to the children of in precisely the same terms without any words of inheritance ; but if C should die without leaving such issue, then to the use and behoof of the tes- tatrix's three grand-daughters D, E and F, their heirs and assigns for ever, as tenants in common. These dispositions were followed by a devise of other lands to A and B, to uses in favour first of C and his children, then of S and his children in precisely the same terms mutatis mutandis. But beyond what is stated, there was no devise of real estate in the will. S died leaving children who survived him, but there was no child either of S or C at the date of the will or of the testatrix's death : — Held, that the children of S took only life estates in joint tenancy in the specified hereditaments, and that, subject to such life estates, the beneficial inherit- ance descended as undisposed of to the testatrix's gavelkind heirs, the gifts over to C and his child- ren, and to D, E and F, their heirs and assigns, having failed by reason of S's death leaving child- ren. Per the Lord Justice Turner — Where, in a will operating under the old law, there is a devise of lands without words of limitation followed by a devise over, the question whether the first devise takes in a fee is one which in each case must de- pend upon the intention to be collected from the will ; and the devise upon a contingency, as part of a continued series of limitations, in th'e above will, was not sufficient to manifest an intention to give the fee to the children of S. One of S's children mortgaged his interest in the property : — Held, that thereby the joint tenancy .so far as it affected that share was severed, and the intestacy as to it after his death was accele- rated. In re Pollard's Estate, 3 Be Gex, J. & S. 541. 0. — A testator, by will made before 1837, de- vised lands to trustees to raise 4,000?., and, subject thereto, he gave the lands to his son W for his own special use, and he gave to his son S all the rest of his freehold lands for his own special use : — Held, that W took an estate for life only. Oaklet/ v. JVrod, 37 Law J. Rep. (n.s.) Chanc. 28. 10. — A testator, by will made in 1834, "gave, bequeathed and dumised" certain land to his son G, without words of limitation, and also certain personalty, " ho ray son paying out of this my 622 "WILL, CONSTRUCTION (I). personal estate the sum of 100/. and a second sum of 100/. to be paid by my son W, as a joint pay- ment." He then directed that if Gr should die before his wife, she should enjoy the property for life, " after whose decease I demise and bequeath all the before-mentioned property to my five grand- children, E, Gr, "W, E, and A, begotten of my son AV, equal share and share alike, with benefit of survivorship." He then gave, bequeathed and de- mised to bis son W, certain laud,; " he my son paying thereout 100/., and another 100/, paid by my son Gr, before mentioned, a joint payment, I entail upon my two sons equally, that is, that they pay 100/. each out of my personal property and estate bequeathed to thera separately. This, my real property and estate, I give and bequeath to my sons G and W, they paying thereout 100/. each as above expressed in this my will." E died in the lifetime of her husband G : — Held, that the son G took under the will a life estate only in the lands " given, bequeathed and demised " to him, and that the grandchildren took vested estates as tenants in common in remainder after the life estates in the son G and his wife. Bolton v. Bolton, 39 Law J. Rep. (n.s.) Ex. 89 ; Law Rep. 5 Ex. 145. (2) Devise subsequent to Wills Act, 11, — A testator devised and bequeathed to trus- tees all his real and personal estate, upon trust, for his wife for life, and after her decease for his daughter for ever, absolutely; with a direction that the principal moneys, rents, issues, profits, interest,, dividends and proceeds, to which his daughter should be entitled under his will, should be paid into her own proper hands, as the same .should become due, and not by way of anticipa- tion, and should be for the separate use and bene- fit of his daughter, exclusive of any husband with whom she might intermarry, and for which money the receipt alone of his daughter, whether covert or sole, should be an effectual discharge : — Held, that there was no gift of the fee to the separate use of the daughter, the language being only ap- plicable to a life interest. Troutbeck v. Boughey, 35 Law J. Rep. (n.s.) Chanc. 840 ; Law Rep. 2 Eq. 53. 12. — Testator directed real estate to be sold, the proceeds to go in equal moieties between A and B, as tenants in common, and their respective heirs or representatives : — Held, that these were words of limitation, and that the share of A, who pre- deceased the testator, lapsed. Appleton v. Rowley, 38 Law J. Rep. (n.s.) Chane. 689 ; Law Rep. 8 Eq. 139. (3) Estate of trustees. 13. A devise before 1838 to trustees in trust to pay a life annuity with power to raise it by dis- tress or sale as for rent in arrear gives them the legal fee. Whittemore v. Whittemore, 38 Law J. Rep. (n.s.) Chanc. 17 ; Law Rep. 8 Eq. 603. (c) Bule in Shdley's case. 14, — A testator devised three freehold mes- suage's to T C and four others (of whom T C was the survivor) " equal share during only their natu- ral lives," and after their decease he gave and be- queathed the said freehold estate unto the next lawful heir of T C aforementioned, aU the said freehold estate for ever : — Held, that T C took the fee. Fuller v. Chamier, 36 Law J. Rep. (n.s.) Chanc. 772 ; Law Rep. 2 Eq. 682. 15. — Where in a, devise of lands to one for life, with remainder to his issue, there are words of distribution annexed to the devise to the issue, and an estate in fee is given to the issue, the first taker has an estate for life only, and not an estate tail, though the estate in fee to the issue be not given by direct words, but by implication only. Bradley v. Cartwright and others, 36 Law J. Rep. (n.s.) C. p. 218 ; Law Rep. 2 C. P. 511. By a will, made in 1806, land was devised to the testator's son, S B, for life, with a limitation to trustees to preserve contingent remainders ; and after his decease, " to the use of all and every the issue, child and children of the body of the said S B, lawfully to be begotten, in such shares and proportions, manner and form," as he the said S B by deed or will should limit or appoint, " and in default of such issue," to the use of other sons ■oi the testator in fee : — Held, that S B had power to appoint to his children in fee, and that, there- fore, in default of appointment, they took an estate in fee, and consequently S B was entitled to an es- tate for life only, and not an estate tail in the land so devised. Ibid. 16. — Devise to W F, " and after his decease it is my will that my aforesaid real and personal property be inherited by my nephew C F, and my nephew F F, during their lives ; and after the decease of CFand T F the eldest son of C F, and the eldestson of T F should inherit the aforesaid property during their lives, and so on, the eldest son of the two families of the name of F to inherit the aforesaid property for ever, and each two of the succeeding inheritors shall inherit it free from any incumbrance what- ever " : — Held, that C and F took joint estates for life, remainder to each of their eldest sons for life (they were living at the death of the testator), re- mainder to C and F in tail male, making C and F, not their eldest sons, the stirpes. Forsbrook v. Forsbrook, Law Rep. 3 Chanc. 93. 17. — A testator gave real and personal estate to a child, D (who was then insane, and afterwards found lunatic), and his mother, to provide for her and D's support, and after the mother's decease, testator's son J and his daughter A " to receive its incomes, and after their decease their heirs " : — Held, that J and A took a joint estate in fee in the real estate, and a joint life interest in the personal estate, subject to making a due provision for D. Quaere — Whether their heirs will be entitled to the personal estate. Dnnk v. Fenncr, 2 R. & Myl. 657, disapproved of. Herrick v. Franklin, 37 Law J. Rep. (n.s.) Chanc. 908 ; Law Rep. 6 Eq. 693. ((/) Absolute gift cnt down. 18. — A testator directed his residuary estate to be equally divided among all his children, and pro- ceeded to direct each of his children's shares to be invested, and the dividends to be for their own WILL, CONSTKUCTION (I). 623 use during their respective lives, with power to .dispose of the principal among their children, if any, .and if none, the share to sink into the resi- duum for the benefit of the survivors'. — Held, that each child took a life interest only in its share, with a power ef appointment among its children, if any. Butler v. Gray, 39 Law J. Eep. (n.s.) Chanc. 291 ; Law Eep. 5 Chanc. 26. 19. — Bequest of proceeds of real estate and re- siduary personal estate to trustees, " the interest therefrom to be divided half yearly between my four sons above named, and at the decease of either, without lawful issue, such share to revert to the remainder then living, their child or chil- dren." The V.C. Stuart having held. Law Eep. 1 Eq. 442, that the sons only took life estates, and that children of sons took by implication. This decision was reversed on appeal by the Lords Jus- tices, who held that the sons took absolutely, sub- ject to be divested in the event of their dying without leaving issue. Bowling v. Bowling, Law Rep. 1 Chanc. 612. 20. — A clear absolute gift by will, of real and personal property to nephews and nieces, share and share alike ; not cut down by a subsequent gift to their respective children upon a contin- gency, not allowed by a rule of law as, " if either or any of my nephews or nieces should die . . . before they shall have actually received what is to go to them under this will." Martin v. Mar- tin, 35 Law J. Eep. (n.s.) Chanc. 679 ; Law Eep. 2 Eq. 404. [And see supra (G) 9.] (e) Estate tail or life estate. (1) Be vises to sons, 21. — A testator, by his will, devised as follows : . — " All my freehold property to my nephew J C J, and after his death to his sons in tail lawfully begotten, and in the event of his or their death without sons lawfully begotten, then I leave the said estates to my cousin J H H, and after his death to his sons lawfully begotten, beginning with the elder":— Held, affirming a decision of Wood, V.C, 4 New Eep. 186, that the above devise created estates tail in remainder in the sons of J C J ; but quaere, whether as tenants in common in tail, or as joint tenants for life with several inheritances in tail. Be Windt v. Be Windt, 35 Law J. Eep. (n.s.) Chanc. 332 ; Law Eep. 1 E. & I. App. 87. 22. — Devise of separate estates to three younger sons for their lives, and after their death to eldest son W, with power to leave the estates to such of his sons as he thinks proper, " but in case he leaves no sons, or in case of failure of issue male from them, then to the heirs male of my other sons in succession." "And in case the whole of my estate comes into possession of W or his issue male by the death of all my younger sons, I then give to each of my younger sons' children 1,000/., to be paid out of the estates which I give to my younger children for their lives ":— Held, that W took the estates in tail male in remainder, which vested in him on the deaths of the younger sons respectively, and that such estates tail were, on vesting, respec- tively charged with legacies to the children of such younger sons, but that such legacies were not pay- able until the whole of the estates had so vested and that the legacies were not remainders or charges posterior to the estate tail, and so capable of being barred by a disentailing assurance. Cholmeley v. Strickland, and Strickland v. Ghol- meley, 39 Law J. Eep. (n.s.) Chanc. 814. (2) " Bie without issue." 23. — In 1833, a testator having two estates, F and D, devised " to my son J C, all those my pro- perty, lands, tenements, &c., at F ," together with the live stock, plate, library, &c. " I also devise to my son J' C my lands, &c., at D " By a codicil the testator said " if it should happen that my son J C die without heirs of his body, in that case and in default of such heirs, I do hereby devise and direct that my lands, &c. (describing estates at F and B, and the plate, &c.), shall at my son's death descend and be transferred to my grandson D C, his heirs and assigns for ever." J C died without issue, having suffered recoveries of both estates and devised them : — Held, that as to F the will gave an estate in fee to J C, and that the codicil created as to it an executory devise arising on J C dying without leaving issue, and that the recovery was bad. That as to estate D the will gave an estate for life only to J C, and the codicil a contingent remainder to D C on the same event as the executory devise ; and that this re- mainder was destroyed by the destruction of J C's life estate. Coltsman v. Coltsman, Law Eep. 3 E. & L App. 121, 24. — By will, taking effect before the Wills Act, lands were devised to the testator's grandson without words of limitation, and it was provided that if he should die without issue the property should return to the testator's family, but if he should live to have children he should have power to make a will of it to his children :— Held, that "without issue" meant " without children," and not an indefinite failure of issue, and therefore that the testator's grandson took only an estate for life, and not an estate in tail by implication, Eastwood V. Alison, 38 Law J. Eep. (n.s.) Ex. 74 ; Law Eep. 4 Ex. 141. [And see Deed, 7]. (3) " Children " : whither word of purchase or limitation. 25. — A testator devised lands as follows: — "I give and bequeath unto my dear wife M P, all my estate of land situate, &c. for her natural life, and after her decease I give and bequeath the same unto my daughter Mary, wife of A E, to her and her children for ever." The testator's daughter Mary was then enceinte of a child, who was born after the testator's death : — Held, affirming the judgment of the Common Pleas, 36 Law J. Eep. (n.s.) C. p. 270, that notwithstanding there was such child, the word "children" must be read as a word of limitation, and that the testator's daugh- ter Mary, therefore, took an estate tail. Roper v. Eoper and others, 37 Law J. Eep. (n.s.) C. P. 7 ; Law Eep. 3 C. P. 32. 624 WILL, CONSTKUCTION (I), (K). 26. — The rule in Wild's case is not inflexible, and will not be applied where its application would defeat the manifest intention of the testator as collected from the whole will. Grieve v. Grieve, 36 Law J. Eep. (n.s.) Chanc. 932; Law Eep. 4 Eq. 180. Devise of house to A and B, and to their children, and if they have not any, to C and his children ; the furniture to go with the house. A and B had no children at the date of the will : — Held, that having regard to the terms of the will, and parti- cularly to the direction as to the furniture, to apply the rule in Wild's case, and thereby give A and B estates tail, would defeat the intention of the testa- trix ; that in such ease it was not imperative to apply the rule ; and that A and B took the house and furniture for their respective lives, with re- mainder to the children of each coming into esse during such lives. Ibid. (/ ) Elates by implication. 27. — Bequest to trustees to pay out of the in- come an annuity to A for life, and after his death, as to two-fifths of the fund, to B for life, but if B should die in the lifetime of A, then to C for life. " and after the decease of both of them the said B and C " over. B survived A, and C survived B •. — Held, on the whole will, that C took a life estate. In re Betty Smith's Trusts, Law Eep. 1 Eq. 79. 28. — A testator having by his will given his wife an annuity, and also a legacy, and having given other annuities and legacies, added "After my dear wife's death, I leave the remainder of my property to be equally divided among my brothers and" sisters, if living ; if dead, then to my nephews and nieces " : — Held, the wife took an estate for life by implication in the residue. Humphreys v. Humphreys, Law Bep. 4 Eq. 476. 29. — A testator gave a sum of stock in trust to pay the income to a married woman for life, and after her decease, if she should have children, in trust to pay the income to her husband for life, and after his decease in trust for the children equally ; but if there should be no child (which was the case), then, after the decease of the husband and wife, in trust for other persons absolutely. The husband survived the wife : — Held, that he took a life interest by implication. In re Blake's Trust, 36 Law J. Eep. (n.s.) Chanc. 747 ; Law Rep. 3 Eq. 799. [See Dowling v. Dowling, No. 19, supra.] 30. — Settlement of family plate, in trust for R, Earl of C, for life, and after his death for J T, the first-born of R, for life, with executory trust in favour of the first and other sons of J T ; in de- fault of whom, for the second and other sons of R, Earl of C, successively, and their respective execu- tors and assigns. But if there should not be any sons of R or of J T, who should attain twenty-one, &c., then in trust for B absolutely. J T was the only son of E, Earl of C. He attained twenty-one, and died without issue : — Held, that there was no ' gift by implication to him, and that the gift over to B took efiect. Cardigan v. Curzon-Howe, Law Eep. 9 Eq. 358. [See Leo ACT (P) ; Powee, 36.] . is) Cy-prks, rule of. 31. — The doctrine of cy-pris established by Humberston v. Humberston is not to be confined to wills of an executory character, where the Court is to carry out by a settlement the general inten- tion ; but is a rule of constructioh, and to avoid intestacy on the ground of perpetuity, the Court will, although the testator has shewn an intention to give life estates in perpetuity, if possible con- strue the will so as to give life estates to issue born in the testator's lifetime, remainder in tail to those who were not, with eross-remainders. i'ar- fiit V. Hember, Law Eep. 4 Eq. 443. [See MoETMAiN, 15.] (A) Absolute gift or trust, 32. — Devise and bequest to testator's wife of his freehold estate at A and all his personalty, " to be at h'er disposal in any way she may think best for the benefit of herself and family:" — Held, an absolute gift. Lambe v. Eames, Law Eep. 10 Eq. 267. (z) ''Sole:- 33. — The word " sole" in a will has not a fixed technical meaning, and it has not the meaning or force of the word " separate," unless it plainly appears from the context that it was intended to have that meaning. Massy v. Bowen, Law Eep. 4 E. & I. App. 288. [See Legacy, 12.] (K) Pbecatoey Tettsts. 1. — Bequest to widow of two- thirds of the residue " to be at her sole and entire disposal, for the mamtenance of herself and such child or children as I may leave by her : " — Held, that the widow had an uncontrolled power over the income so long as the children were maintained, and that the right of the children to maintenance did not cease at twenty-one. Bequest of the -principal and interest of one-third of the residue to a widow, " being well assured that she will husband the means that may be left to her by me with every prudence and care, for the sake of herself and children : " — Held, that this raised no precatory trust, and that the widow took absolutely. Scott v. Key, 35 Beav. 291. 2. — Precatory words in a will, accompanied by an absolute gift to the object, held not to create a trust. Eaton v. Watts, Law Eep. 4 Eq. 151. 3. — Where testator made a will, leaving all his property to A, whom he also appointed executor, ' and with the will was found a letter in which was named many persons to whom the testator desired money or annuities should be paid, but A was de- sired in it to do as he might think best, and act on his own judgment, and say nothing about the letter, that no fault might be found if he did not act in accordance with it. A paid money to some of the persons indicated, but not all : — Held, that there was no trust created binding on A. M'Cormick v. Grogan, Law Eep. 4 E. & I. App. 82. 4. — A testator, by his will, gave his real and personal estate to trustees, upon trust to sell the sanje, and after payment of his debts,. &e., to pay WILL, CONSTRUCTION (K), (L). 625 the same, and he thereby gave and bequeathed the same to D I (to whom he was engaged to be mar- ried), " absolutely, trusting she would carry out his wishes with regard to the same, with which she was fully acquainted." Shortly before tlie date of his will the testator had verbally expressed to D 1 his wish that she should make certain gifts out of the property to be bequeathed to her, and she had afterwards written down his wishes for her own use, but not in the testator's presence : — Held, that D I took the property beneficially, but subject in part to the wishes which the testator had expressed to her, and as to which she ' had bound herself. Irvine v. Sullivan, 38 Law J. Rep. (U.S.) Chanc. 635 ; Law Rep. 8 Eq. 673. (L) Vesting: Gift oveb. (a) " Vested," meaning of word. 1. — After a bequest of personalty to H for life, remainder upon trust to pay to the children of H equally, there was a declaration that none of the shares of children " shall be sp paid tOi or become vested interests in, any of the children until he, she, and they attain the age of twenty-five : " — Held, upon the construction of the entire will, that "vested" being a flexible word, it was to be con- strued here as vested indefeasibly, and that pay- ment alone was postponed until the age of twenty- five, and that the gift was not too remote. In re Edmonson's Estate, Law Rep. 5 Eq. 389. [And see No. 23 in^ra.] (i) Gift over on death before legacy or share payable. 2. — Bequest to A: "And in case o'f his death before the same shall be actually paid or payable to him," then in trust for the children of A, &c. A was one of the executors who proved, he died three months after the testator, and before his legacy was paid, or assets appropriated for it : — Held, the gift over took eflFect. Whitman v. Aitken, Law Rep. 2 Eq. 414. 3. — ^A testator devised real estate to his wife for life, or so long as she continued his widow, then to trustees to sell and divide proceeds equally between his children : shares of sons to be vested at 21, and shares of daughters at 21 or marriage ; and he directed that in case any child should die, leaving issue lawfully begotten, before the share of such child should become due and payable, such share should be equally divided amongst all the issue of such child — a daughter married and died in the lifetime of the widow leaving issue : — Held, that the absolute vesting on marriage was not affected by the above direction. Mendham v. Williams, Law,Jlep. 2 Eq. 396. 4, — Testator gave certain real and personal estate to trustees on trust, after the death of a tenant for life, to sell and convert into money, and "to pay and divide the moneys arising there- from among" eleven persons named equally, as and when they should respectively attain twenty- one, with a gift over of the shares of any of them who should die " before such legacy, or share, or any part thereof, should become payable." All Digest, 1865-70. of them survived the testator, and attained twenty- one, but some of them died before the tenant for life : — Held, that " payable " was equivalent to "vested" and that the gift over did not take effect. Haydon v. Boss, 39 Law J. Rep. (n.s.) Chanc. 688; Law Rep. 10 Eq. 224. In re Willmoit's Trusts, 38 Law J. Rep. (n.s.) Chanc, 273— (seeMAEKiAOE Settlement, S) — not followed. Ibid. [And see Legacy, 15 ; Maeeiage Settle- ment, 5.] (c) Cfift over before receipt of legacy. 6. — Testator, after directing that his residuary property should be divided equally between his nephews and nieces, proceeded as follows : — " And it is further my will that the property of whatever description, whether real or personal, which by , this will I leave to my nephews and nieces, shall, on their decease, severally be divided equally, share and share alike, between such of their children as may survive them ; and if either or any of my nephews and nieces should die before me, or before they shall have actually received what is to go to them under this will, that in any and every such case or cases their share shall be divided equally between my surviving nephews and nieces." There were also expressions in the will importing an absolute gift to the nephews and nieces : — Held, that reading the words aboye cited together, the events on which the testator intended the gift over to take effect were either, first, a nephew or niece dying in his. lifetime ; or, secondly, a nephew or niece dying after him, but before having actually received his legacy; that the gift over in the latter case was void, and that the nephews and nieces who survived took absolute interests. Martin v. Martin, 35 Law J. Rep. (n.s.) Chanc. 679 ; Law Rep. 2 Eq. 404. 6. — By his will, a testater bequeathed his per- sonalty to trustees, upon trust to invest the same and pay the income to his wife, until his daughter should attain twenty-one, and as soon as she should attain that age then to call in all invested moneys, and divide the same between the daughter and his son ; and in case of the death of either without issue before their respective estates or in- terests should be "received," then upon trust to pay the estate or interest of him or her so dying to the survivor. But in case of the death of either previous to the time aforesaid leaving issue, then to such issue, with other remainders over. By a codicil, the testator directed the inve'st- ments and payments to his wife to be continued during her life, though she might live beyond the daughter's attainment of the age of twenty-one ; and, reciting that his son was dead, he gave the share and interest, which he would have taken, to the daughter, to be paid and applied along with her own. The daughter survived the testator and attained twenty-one, but died in the lifetime ,of the wife, leaving a child :— Held, that the daughter took an absolute vested interest in the fund on attaining twenty-one which her death in the lifetime of the 4L 626 WILL, CONSTEUCTION (L). wife did not divest in favour of the child and the other persons entitled over. West v. Miller, 37 Law J. Rep. (n.s.) Chano. 423 ; Law Eep. 6 Eq. 69. Wliere there is a gift for life, followed by a gift in remainder, which is to vest upon the attainment of a particular age, or any other event personal to the legatees in remainder, with a gift over in the event of the latter dying before the legacy is " payable " or " receivable," or " vested, in posses- sion " or the like, in any form of expression that signifies " paid " or " received," all such expres- sions are to be read as equivalent to " vested, " and refer to the period at which the property is to vest. Ibid. - Bright \. Eowe, 8 Myl. & E. 36, dissented from. Ibid. (i^) Gift over on death without leaving children. 1, — Where a parent.by will makes a provision for his children, and devises a portion of his estate to his daughter A for life, and after her decease, to all and every the children of A, as tenants in common absolutely, and tlien adds, and in case A dies under the age of twenty-one, or afterwards " without leaving any child, then over, the Court will construe the word "leaving" to having, so that the absolute vested interest of a child will not be defeated by predeceasing its parent. White T. HUl, Law Eep. 4 Eq. 265. 8. — Testator devised real estate to his widow for life, and after her death to the child or chil- dren of W H, " if he leave any him surviving ; but in case he leave no child or children him surviving," to the child or children of J W. W H survived tjje widow : — Held, that the remainders to the chil- dren of W H and J W were contingent, and failed. Price V. Hall, 37 Law J. Eep. (n.s.) Chanc. 191 ; Law Eep. 5 Eq. 399. 9. — Trust in will to pay one-fourth of income of residue to each of testator's four sisters for life, and when and so soon as any of them should die " without leaving issue," then share in trust moneys of her or them so dying " without issue," should be divisible among his siirviving sisters and the issue of and who might then be dead, in equal shares, such issue to take only their respec- tive " parent's '.' share ; and when and so soon as any of his sisters should die and " leave issue" then upon trust to call in the share of her or them BO dying " leaving issue," and pay the same to such respective issue, if more than one " child " equally: — Held, that "issue" meant "children" and that " leaving issue " meant " having had issue." One of testator's Sisters died, having had two children, daughters, one surviving, and the other predeceasing her toother but leaving a family : — ^Held, that a moiety of her mother's share vested in the lalter child, and went to her family. Bryden v. Willett, Law Eep. 7 Eq. 472. 10. — tfpBn a bequest on trust to pay the in- terest to the testator's two daughters for . their lives and aftfer their death, if they or either of them shduld " leave issu^," to pay the share of such deceased daughte^oi' daughters " unto such her or their iteue" -frhen they Should attain twen- ty-one, and in the ctise of the death of either of the testator's daughters " leaving" no issue, or upon the death of " such issue " under twenty- one, then over: — Held, that children of a daugh- ter, who attained twenty-one, but died in her life, did not take, the gift to issue being conditional upon their surviving the tenant for life. In re Watson's Trusts, 39 Law J. Eep. (n.s.) Chanc. 770; Law Eep. 10 Eq. 36. Bryden v. Willett, Law Eep. 7 Eq. 472, see last case, differed from. 11. — Absolute gift by will of realty and per- sonalty to M H if she should be living at the death of the testator's wife ; butin case MH should die in the lifetime of the testator's wife leaving issue, then over: — Held, that M H took an abso- lute interest, liable to be divested only in the event of her death in the lifetime of the testa- tor's wife without leaving issue. Finch v. Lane, Law Eep. 10 Eq. 501. (c) Gift over on death without issue. 12. — Where there is a bequest to children of the first taker, and then' a gift over on the death of such first taker' "without issue," the word " issue," is confined to issue who could take under the former limitation. In re Wyndham's Trusts, Law Eep. 1 Eq. 290. 13. — Testator since the Wills Act devised real estate to A, and if he should die without leaving lawful issue in the lifetime of B, then over. A died in the lifetime of B, leaving issue one child, who also died in the lifetime of B: — Held, following Crowder v. Stone, 3 Euss. 217 ; 7 Law J. Eep. (n.s.) Chanc. 93, that the gift over took effect. Jarman v. Vye, 35 Law J. Eep. (n.s.) Chanc. 821 ; Law Eep. 2 Eq. 784. (/ ) Cross-remainders implied. 14. — Under the following devise : Whereas I have purchased a tenement of land at Treose, in the parish of Langan, since the making of my will and codicil. Now I give and devise the same as follows, that is to say : one moiety thereof un- to and between my three nephews, W, T and D, in equal shares, and the heirs of their body re- spectively lawfully begotten, and in default of such issue of any of them, unto M P, widow, her heirs and assigns for ever " : — Held, that there were cross-remainders on the death of each of the nephews, and that the words " any of them " might be i'nterpreted " all of them." Powell v. Howell and others, 37 Law J. Eep. (n.s.) Q. B. 294 ; Law Eep. 3 Q. B. 654. (g) Gift with clause of forfeiture, 15. — Devise of real and personal estate to A, absolutely with a proviso, that A's interest should cease if Bor his wife, or their children should be- come entitled to any of the estate, gift, sale, &c., from A : — Held, that the clause of forfeiture was void. Ludlow v. Bunhnry, 36 Beav. 36. 16. — A testator appointed real estate under a power, and devised other real estate to the use of his wife and hef assigns for life, and after her de- cease he devised the same estates to his son in fee, with an executory gift over, and vrith a proviso that if his wife should make or do any matter or WILL, CONSTEUCTION (L). 627 thing whereby she should be deprived of the rents and profits, so that her receipt alone should not be a good and sufficient discharge, her life estate should cease as on her death. By a codicil he re- voked the devise in remainder in fee to his son, and substituted other limitations to take effect on the decease of his wife. The wife having married again without making any settlement of her life interest : — Held, affirming the decision of the Mas- ter of the EoUs, 36 Law J. Eep. (n.s.) Chane. 905, that there was a forfeiture of her life interest, and the estates in remainder were accelerated. Craven V. Brady, 38 Law J.Eep. (n,s,) Chanc. 34S; Law Eep. 4 Chanc. 296, (i) Direction for payment at given age. 17. — A testator directed his trustees to receive rents and profits of real and personal estate yearly until his youngest daughter attained twenty-one, to be applied towards the maintenance and educa- tion of his seven daughters until the youngest attained twenty-one, then to sell the estates and divide amongst his daughters equally ; and if any daughter should die before the youngest attained twenty-one her or their share or shares to be divided between his surviving daughters equally ; but if a daughter should so die, and leave a child or children, it or they to receive their mother's share equally among them. Pour of the daughters died before the youngest attained twenty-one, one of whom only left issue — one child : — Held, first, the gifts did not vest until the youngest daughter attained twenty-one, the income being given as a common fund; secondly, that the child of the deceased daughter was entitled to one-fourth, not one-seventh a£ the fund. In re Hunter's Trusts, Law Eep. 1 Eq. 295. 18. — Bequest of a sum of stock to accumulate during the life of A B, and after the death of A B " to be equally divided between all the children of W L as they should attain his or her age of twenty- one years : " — Held, that children of W L, who died before the eldest attained twenty-one, were not en- titled to share in the bequest ; and that only those children who were living at the time when the eldest attained twenty-one, and who attained the age of twenty-one years were entitled. Locke v. Lamh, Law Eep. 4 Eq. 372. 19. — Bequest of residue to a elas^ pi persons living at testator's decease, to be equally divided among them when they should attain twenty-one ; and if there should be but one who should attain twenty-one, the whole to such one ; with a direc- tion for the accumulation of income during the sus- pense of absolute vesting:— Held, that members of the class took vested interest at twenty-one, and not before. Merry v. HUl, Law Eep. 8 Eq. 619. [And see Legacy, 14.] {I) Gift of inconm for maintenance of class. 20.— Bequest to trustees to pay testator's sister E and his mother 50i. per annum each, for their maintenance, "and to divide the residue of the dividends and interest during their joint lives, and after the death of either of them between my other Bisters, for their maintenance,- and after the death of both to divide the principal between my sisters then living, or the lawful issue of any or either then dead " : — Held, first, this was an ab- solute gift to the " other sisters " of the residue of the income during the lives and life of the annui- tants and the survivor ; secondly, that the gift to the jssue was not substitutionary, and that a child of a sister who predeceased the testator would take, no sister of the testator being alive at the period of distribution. Aitwood v. Alford, Law Eep. 2 Eq. 479 21. — Grift to one for life, remainder to four persons named, with a proviso that the share of any legatee in remainder, -rfho should die in the lifetime of the tenant for life leaving lawful issue, should be " assigned and transferred to such issue respectively, in equal shares and proportions on their attaining 21 ; and the dividends and pro- ceeds thereof in the meantime to be applied in or towards their maintenance and education " : — Held (on the authority of the dicta in Pulsford v. Hunter, 3 Bro. C.C. 416, and quaere dissenting from Davies v. Fisher, 5 Beav. 209), -that the gift of income, being to an entire class, for main- tenance only, was not sufficient to vest the legacy in the issue before 21. Se Ashmor^s Trusts, 39 Law J. Eep. (n.s.) Chanc. 202; Law Eep. 9Eq. 99. [See, however, Fidsford v. Hunter, where the question argued was, whether the gift was so vested as to exclude a child born before the period of division. There was apparently no question whether a child dying under 21 took a vested in- terest, but it was argued that the vesting would shut out after-born children. — Eq. Ed.] {k) Gift over on death of devisee under twenty-one. 22. — A testator devised a house to trustees on trust to apply the rents for the advancement and benefit of his granddaughter M until she should attain the age of twenty-one, biit in case she should die under that age, then he devised the said house to his daughters E and C, their heirs and assigns, as tenants in common. He afterwards appointed two others of his daughters executrixes, and his son executor of his will, to whom he bequeathed all the residue of his real and personal estate, not specifically bequeathed, as tenants in common ': — Held, that the testator's granddaughtsr M took, under the above devise, an equitable estate in fee in the said house, subject to defeasance in case she should die under twenty-one years of age. Cropton and others v. Davis and wife, 38 Law J. Eep. (n.s.) C. P. 159 ; Law Eep. 4 C. i>. 169. (V) Gift over hefoie estate " vested." 23. — A, by his will, gave an estate to his daughter H during her life, and after her death to her sons in tail successively ; and in default of such issue to his son J, in fee. By a subsequent codicil, after reciting that he had devised the re- version in fee in this estate to his SQn J, and also that he had devised other estates to trustees for his use until he should attain twenty-one, and thereupon to him in fee for ever, proceeded and declared his will to be, that in ease his said son should die without leaving lawful issue of his body living at his decease, and before the said several 41.2 628 WILL, CONSTRUCTION (L), (M). estates should become vested in him by virtue of the said several limitations aforesaid, the estates should go over. J survived the testator, attained twenty-five, and died without having had any chil- dren. H died unmarried many years after J. On the question who was entitled on the death of H to her estates, it was held, that the word " vested " in the codicil meant vested in interest, and not vested in possession; consequently, that on the testator's death the estates vested at once in inte- rest in J, subject to the estates of H and her issue ; and, therefore, on H's death without issue, passed to J's devisees. Richardson v. Tower, 33 Beav. 163 ; 35 Law J. Eep. (n.s.) C. P. 44. (»i) Gift in defeasance of estate tail. 24. — A testator directed his trustees to receive lihe rents of all his real estate for maintenanefe of all his children, during the minority of H, his youngest child, and on her attaining twenty-one, he gave to five of his sons, whom he named in descending order of birth, estates tail in five several portions of his real estate respectively. And he provided that in case any of these five sous died " during the minority of H as aforesaid, or in the event of any of them dying without having such lawful issue as aforesaid, and either before or after their or his share should be divisible," then the share of the deceased sou should accrue to the testator's " next surviving son according to se- niority of age and priority of birth : — Held, first, that on the death of one of the five sons during the minority of H, though leaving issue inheritable, the gift over took effect; secondly, that having regard to the order in which the sons were named, " next surviving son " meant next in order accord- ing to the testator's arrangement. Eastwood v. Lockwood, 36 Law J. Eep. (n.s.) Chanc. 573 ; Law Eep. 3 Eq. 487. Observations on Abbott v. Middleton, 7 H. L. Cas. 68 ; 2 Law J. Eep. (n.s.) Chanc. 11. Ibid, (w) " And " where to be read " or." 25. — Bequests to trustees in trust for testator's son, C, for life, then for any wife with whom C might intermarry for life or widowhood, then to all and every the child or children of C as he should appoint, &c., with this proviso, "that in case C should happen to die unmarried and without issue " the fund should be paid to D, E & F, equally or unto such of them as should be living at the time of his decease his, her, or their exe- cutors, administrators and assigns. The will con- tained a residuary bequest. C married, but died a widower, never having had a child. D, E & F, predeceased C: — Held, that " unmarried" meant " wifeless," and that the word "and" should not be changed into " or;" and further, that the gift to D, E & F, was a transmissible interest, and went to their representatives. In re Saunders' TriisiS, Law Eep. 5 Eq. 675. 26. — Bequest to trustees for A, for life, then to B, C, D and E, share and share alike, " and in case any or either of them, B, C, Dand E, shall die in my lifetime, and before they shall have received any benefit from the said bequest, then his or her share to be divided equally amongst his or heir children, &c." B survived the testator, but died in the lifetime of A, leaving children: — Held, that " and " could not be read " or," and that B's share vested absolutely in him on the testator's death. In re Kirkbridds Trusts, Law Eep. 2 Eq. 400. (o) Hotchpot clause. 27. — It is a principle of Equity that a fund shall be divided as soon as possible, and that it will not postpone the payment in order to enlarge the class. A testator who had three children, A, B, and C, by a first marriage, and two by his second, be- queathed his residuary estate to trustees for his wife for life or widowhood, and then to his five children, share and share alike; and he directed that in case A, B, and C, or either of them should receive any moneys which should become payable to them as the children of their mother, such moneys should be considered as a deduction from the portion to which A, B, and C, or either of them, would otherwise be entitled under that his will. A became entitled to payment of his share in the residue in January, 1866, when he came of age, and in November, 1866, A, B, and became entitled " as the children of their mother " to a sum of money : — Held, that as A had not become entitled to a share in this latter sum, until after the time when he was entitled to payment of his share of the residue, it could not be deducted there- from ; and that as this proviso was intended to operate alike on all the three children, no deduc- tion could be made from B or C's share either. Stares v. Penton, Law Eep. 4 Eq. 40. (M) Substitution and Stjrvivoeship. (fl) Substitntion in testator's lifetime. 1. — Gift to residue to trustees upon trust to pay the income to the testators daughter for life, and subject thereto to distribute one-fourth part thereof equally between his nephews and nieces, the children of his deceased sister, with direction that in case of the death of any of his said nephews or nieces leaving issue, such issue should take the share that his, her, or their deceased parent would have taken if living : — Held, that the issue of all nephews or nieces who died in the testator's lifetime, whether before or after the date of the will, took by sub- stitution. In re Potter's Trusts, 39 Law J. Eep. (N.s.) Chanc. 102 ; Law Eep. 8 Eq. 62. Christopherson v. Naylor, 1 Mer. 320, dissented from. Ibid. Stewart v. Jones, 3 De Gex. & J. 532, ques- tioned. Ibid. 2. — A testator gave a sum to be equally .divided between his first cousins, aud then gave " the share or shares of those niy first cousius, if any, who may die in my lifetime unto all and every the children of all my first cousins who may so die in my lifetime, share and sh.ire alike, such shares to be taken per capita and not per stirpes" : — Held, that the children of a first cousin who was dead at the date of the will were excluded. In re Hotch- kiss's Trusts, 38 Law J. Eep. (n.s.) Chanc. 631 ; Law Eep, 8 Eq. 643. WILL, CONSTRUCTION (M). 629 In re Pottur's Trust (see last ease), doubted, but distiuguished. Ibid. 3.^ — Under a gift in a will to the children who should be living at a certain period of persons named, and the issue then living of such of the "said children" as should be then dead, yet so that such issue should participate only as repre- senting their parent :^H6ld, that the issue of a child dead to the testator's knowledge before the date of the will were entitled to share. Hall v. WooUey, 39 Law J. Eep. (n.s.) Chanc. 106. 4. — Where a testator devised real estate upon trust for A and the testator's brothers and sisters for their lives, with benefit of survivorship where any of them should die without leaving children, but where any should die leaving children, upon trust to let such children have their parents' share until the death of the survivor of the said A and his brothers and sisters, and upon the death of such survivor upon trust to convey the shares of their parents among the children of A and his said brothers and sisters : — Held, that in the case of A and of a brother and sister of the testator who were living at the date of his will, but who died before him, their children were entitled to shares during the continuance of the life estate of the tes- tator's surviving brothers and sisters, but that the children of a brother who was dead at the date of the will were excluded from such shares. Haher- gham v. Bid,ehaigh, 39 Law J. Eep. (n.s.) Chanc. 645 ; Law Rep. 9 Eq. 395. (J) Stibatitutional gift to children. [See supra, 20.] (1) Mrst gift impossible. [See Mareiagb Settlement, 9.] (2) Whether children must survive parent. 5.— A testator bequeathed personalty on trust for his wife for life, after her death to be equally divided amongst his children or their heirs : — Held, that the children living at'the death of the wife, and the statutory next-of-kin of such as were dead, became then entitled to the property. Fin- lason V. Tatloek, 39 Law J. Rep. (n.s.) Chanc. 422 ; Law Eep. 9 Eq. 268. 6. — ^A testator devised realty to his wife for life, with remainder to A, B, C, D, and E as tenants in common, and in -case of the death of either in the life of the testator's wife, leaving issue, his share was to go among all his children as tenants in common in fee, but in case of death of any one dying in the lifetime of the wife with- out leaving issue living at his death he gave his share to the survivors : — Held, that the gift to the children was substitutional, and those children only who survived their fathers could take under it. Hurry v. Hurry, 39 Law J.Jlep. (n.s.) Chanc. 824 ; Law Rep. 10 Eq. 346. 7. — Testator, by reference, gave the income of a certain fund to L M, who was unmarried, for life, with a gift to her husband (if any) for his life; and upon the decease of the longer liver of L M and her husband, he directed his trustees to pay, assign and transfer the capital to his four children, A, B, C, and I), who should be then living, " or to the issue of such of them as should be then dead," such issue taking their parent's sliare. " Issue " as used in the will was clearly equivalent to " children " : — Held, that upon the death of any one of the four, A, B, C, and I), whether before or after the determination of the life estates, his children then living took vested interests in the fund, and that his children then dead were wholly excluded. In re Merrick's Trusts, 35 Law J. Rep. (n.s.) Chanc. 418 ; Law Eep. 1 Eq. 551. The dictum in Crause v. Cooper, 1 J. & H. 207, 213, that in such a case the children must survive the tenants for life, overruled. Ibid. (3) Gift to children of a class per capita. 8. — By a will, the residue was given to seven persons, as tenants, in common for Hfe, and on the death of the survivor was to be divided among their children then living per stirpes. By a codicil, the gift to the children was revoked, and the residue was to be divided " from and after the several deceases " of the seven, " and after the decease of the survivor of them," amongst their children per capita : — Held, the words " from and after," &c., were to be read disjunctively, and that, on the death of any of the seven, one-seventh was divisible amongst children of the seven per capita. Cope v. Henshaw, 35 Beav. 420. (c) Meaning of " survive." 9. — The meaning of the word " survivS " im- ports that the person who is to survive must be living at the death of the person whom, or at the happening of the event which, he is to survive. Gee V. Liddell, 35 Law J. Rep. (n.s.) Chanc. 640 ; 36 Beav. 658; Law Rep. 2 Eq. 341. {d) Period of survivorship. (1) Gifts to children and their issue. 10. — Real estate was devised upon trust (after the death of the tenant for life) to sell and divide the proceeds " equally among such of the testator's five daughters as should be living at the decease of the life tenant, and the children, grandchildren and issue of such of his said daughters as should then be dead ; such children, grandchildren and issue respectively to take and have equally among.it them, if more than one, the part or share which their, his or her parent respectively would have been entitled to had such parent been then living." One of the daughters, whose share was now in question, died before the tenant for life, having had ten children, of whom three survived tlie period of distribution, the other seven haying died before that period, some with, others without, issue : — Held, upon the authority of Lanphier \: Buck, 34 Law J. Rep. (n.s.) Chanc. 650, and Martin v. Holgate (see Legacy, 13), that the gift to the children, grandchildren and issue was an original gift, and that the share was divisible into tenths, and that one-tenth went to each stock, irrespectively of the objects of gift surviving the mother or the period of distribution. In re Orion's Trusts, S6 Law J. Rep. (n.s.) Chanc. 279 ; Law Rep. 3 Eq. 376. Held, also, that the gift was per stirpes, and not per capita. Ibid. 630 WILL, CONSTEUCTION (M). (2) " With benefit of survmorsldp." 11. — A testator gave his residuary estate to trustees upon trust to pay his son J W, the income for life — " And from and after the date of my said son leaving lawful issue, upon trust to pay the same to and amongst all and every the child and children of my said son lawfully begotten, equally to be divided ... to be paid to them, if sons at twenty-one, if daughters at that age or marriage, with benefit of survivorship. And in case there shall be no child or children of my said son at the time of his decease, or if all and every such child or children sha*l die before attaining twenty-one or marriage," then over : — Held, doubting Mc- Donald V. Bryce, 16Beav. 581, that the representa- tives of children of J Wwho attained twenty-one but died in J Ws lifetime, were entitled to share with children who survived J W and attained twenty- one. Cornick v. Wadman, Law Bep. 7 Eq. 80. 12. — A testator directed his trustees to divide his estate amongst his four children by name, with benefit of survivorship in case any of them should die without issue ; and in case any of his said children should die leaving any child or children, then he directed that the share, whether original or accruing, of him, her or them so dying, should go, belong and be divided between such children in equal shares if more than one, and if only one then the whole to such one and only child. All the four children survived the testator : — Held, reversing the decision of Malins, V.C., 38 Law J. Eep. (n.s.) Chanc. 596, that they were not inde- feasibly entitled, but took subject to the limita- tions in the will. Bowers v. Bowers, 39 Law J. Eep.' (n.s.) Chanc. 351 ; Law Eep. 5 Chiinc. 244. 13, — Bequest of one-fifth of residue to each of testator's two sons, " to be paid to such of them respectively as shall be living at the death of my wife, or the children of such of them as shall then be dead, leaving issue " ; the issue to take the parent's share, '■ with benefit of survivorship as between my two sons, in the event of their dying without issue in my life " : — Held, that the share of one son, who died after the testator, but before the widow, survived to the surviving brother. Be Clark's Trusts, Law Eep. 9 Eq, 378. (3) Gift to survivors of a class after tenancies for life. 14. — Under a bequest to two successively for life, with remainder to the survivor of a class : — Held, that the survi vorship had reference to the death of the last tenant for life. Be Fox's Will, 35 Beav. 163. 15. — Devise of real estate to testator's wife for life, remainder to his daughter A for life ; " upon her decease my executors to have full power to make sale of the same and divide the produce equally between my surviving brothers and sisters and those of my wife." A predeceased her mother, leaving some of the brothers and sisters of the testator living, all of whom died before the tes- tator's widow:— Held, that the period of survivor- ship was the death of the last surviving tenant for life ; and that there was an intestacy. Howard V. Collins, Law Eep. 5 Eq. 349. 16. — Bequest of personalty to M B for life, and after her decease to eight persons by name in equal shares, •d'ith a direction that in case of the death of any of them before the death of M B the share or shares of him, her or them so dying should be paid to the survivors or survivor, share and share alike. The eight legatees survived the testator, but all died in the lifetime of M B :— Held, that the divesting clause had no operation, there being no survivor at the death of the tenant for life, and therefore the original one-eighth share of each legatee passed to his representatives. Marriott v. Abell, 38 Law J. Eep. (n.s.) Chanc. 461 ; Law Eep. 7 Eq. 478. CrowderY. Stone, 3 Euss. 217; 7 Law J. Eep. Chanc. 93,'is a questionable authority. Ibid.. («) " Surviving," when read " other." ' 17. — The words "survivors and survivor" of parents construed strictly, although the children of some of them took an interest in remainder. Be Usticke, 35 Beav. 338. 18. — Testator directed his trustees to pay one- seventh part of his residuary estate, after conver- sion, to each of his two sous upon their attaining twenty-one, and to pay the income of one other seventh part to his daughter E for her life, and after her death to divide the capital thereof among such children of E as should attain twenty-one, and as to the other four-sevenths upon like trusts fbr the benefit of his daughters A, B, C and D- and their children. And the testator directed that in case any of his daughters should die without leaving issue surviving them, then the shares, as well original as accruing, of such daughters should be divided among his surviving sons and daugh- ters, the shares of any daughters to be held upon the trusts therein declared concerning the other shares as accretions thereto : — ^Held, that "surviv- ing" was to be read as equivalent to "other." Jackson v. Sparks, 38 Law J. Eep. (n.s.) Chanc. 75. 19. — Bequest of an equal fourth share of per- sonal estate to testatrix's daughter A for life, with remainder to her children ; and in case of death of A without leaving any child who should attain the age of tw?nty-three years, gift of income of A's share among testatrix's surviving daughters ; such benefit of survivorship to extend to "surviv- ing " as well as original shares ; the principal (of A's share) to be divided among the children of such daughters. Similar gift of income of remain- ing three-fourths for benefit of testatrix's other three daughters, B, C, D, for their lives, and of the principal for their respective children. Gift over to next-of-kin on all daughters dying without leaving any children who should attain twenty- three years : — Held, that " surviving " meant "other," and that, therefore on the death of a daughter without leaving children, the children of a previously deceased daughter were entitled to participate in the share. Badger v. Gregory, Law Eep. 8 Eq. 78. 20. — Testator directed his trustees, in an event whichr happened, to settle one-third of his real and leasehold estate, subject to a partial life inter- WILL, CONSTRUCTION (M), (N), 631 est in his widow ou each of liis three daughters for life, with remainder to her children as tenants in common in fee, with a gift over in default of issue to her " surviving " sisters and their issue, in like manner as. the original shares, with an ultimate gift over in case all his three daughters should die without issue in the lifetime of their mother ; and he directed all proper provisions to he insei-ted for protecting the entail and succession intended to be effected upon his three daughters and their issue. One of the daughters having died without having been married : — Held, that "surviving" was to be read as equivalent to " other." Hurry v. Morgan, 36 Law J. Hep. (n.s.) Chanc 105 ; Law Eep. 3 Eq. 132. 21. — A testator devised real estate upon trust for his three granddaughters for their lives respec- tively, share and share alike ; and after the death of each of them, he gave one-third of his said estate to the children of each of them who should attain twenty-one, or die under twenty-one leaving issue. And in case any one of such three grand- daughters should die without leaving issue, the testator gave his said estate during the lives of his two surviving granddaughters upon trust for them in equal shares ; and after the death of each of two such surviving granddaughters, he gave one moiety of his said estate to their children who should attain twenty-one, or die under twenty-one leaving issue. And in case either of such two surviving granddaughters should die without leaving such issue, he gave his said estate during the life of the last survivor of such granddaugh- ters upon trust for her, and after her death to her children who should attain twenty-one, or die un- der twenty-one leaving issue : — Held, that, accord- ing to the true construction of the will, " sur- vivors " and " surviving " must he construed "other." In re BecKa Trusts, 37 Law J. Eep. (n.s.) Chanc. 233. 22. — A testator gave property upon trust for his four children as tenants in common during their lives, and after the decease of his said children respectively in trust for the cliildren of his said children respectively per stirpes ; and in case of a failure of such issue of either of his said children then in trust for his other surviving children or child. One of the testator's children predeceased him, leaving an infant daughter. Another of the testator's childreii survived him, and afterwards died without issue: — Held, that the infant grandchild took one-third of the lapsed share concurrently with the two surviving child- ren of the testator. Be Arnold's Estate, 39 Law J. Eep. (n.s.) Chanc. 875 ; Law Eep. 1 Eq. 252. Milsom V. Awdry, 6 VeS; 465, doubted. Ibid. Ee Corhetfs Trusts, 29 Law J. Eep. (n.s.) Chanc. 468j aUd Ee Ifsticke, 35 Beav. 338, com- mented on. Ibid. (/) Swmtorihip beiilieen co-tenants for life. 23. — A testator gave to his wife a house during her life, and at her death to go to his two children, the rent to' be equally divided between the two, and at thfeir death to go to their children ; but in case that either onB of them should die without children, that share to go to the other. Both the children of the testator survived the wife and died without children : — Held, reversing the decision of one of the Vice Chancellors, that on the death of the child who died first the other became abso- lutely entitled to the entire house. Drenman v. Andrew, 36 Law J. Eep. (n.s.) Chanc. 1 ; Law Eep. 1 Chanc. 300. (9) Accrued shares. 24. — A testator devised three properties to his three sons respectively for life, with remainder in fee to their respective children, and in case of the death of either of them without issue between the others " in the same manner as the estates devised were limited to them respectively," subject to the proviso that if either died leaving a widow, but no children, the widow should have an estate for life in the premises " specifically" devised to her hus- band : — Held, by Bovill, C.J., and Brett, J., dis- sentiente Byles, J., that the devise to such widow attached not only to the property originally devised to her husband, but also to property coming to him under the contingent limitationa. Mclsome v. GrUes and Wife, 39 Law J. Eep. (n.s.) C. P. 32.5 ; Law Eep. 5 C. P. 614. 25. — A testator bequeathed a sum of money in trust for his daughters in equal shares as tenants in common, and he directed that the share or shares of his daughters should be for their separate use, which was followed by a gift to survivors of the share or shares of any of them dying without leaving istile, &c. : — Held, the separate iise clause attached to an accrued as well as to an original share. Costs of legatees out of residue failing. In re Jarman's Trusts^ Law Eep. 1 Eq. 71- (N) CoNDiTioNAX Gift. 1. — A condition of marriage with consent:— Held, subsequent and not precedent, and its per- formance, having become impossible by the act of God, was dispensed with. A testatoi* gave a share of his residuary, real and personal estate to his daughter, her heirs, executors, administRito:^ and assigns, to be paid at twenty-one or on her day of marriage, provided it should take place with the consent of his widow. There was a gift over in case of her death " with- out having attained twenty-one years or being so married as aforesaid " : — Held, that the consent was a condition subsequent and that the daughter having married without such consent, her mother being dead at the time, had a vested interest, and that her share ought to be transferred to the trustees of her settlement, though she was still an infant. Collett v. Collett, 35 Beav. 312 ; Law Eep. 2 Eq. 203. _ , 2. — A testator bequeathed his leasehold estate to trustees, in trust, out of the rents, to pay an annuity to his daughter, and he proceeded -. " And I hereby direct, that if my son Henry, now absent, shall, within five years, make his claim to my trustees, he shall be entitled to and receive one moiety of my said leasehold estate, subject, how- ever, together with the other moiety thereof in 632 WILL, CONSTRUCTION (N), (Q). favour of my son William, to the annuity and trusts before mentioned." Henry made no claim : — Held, that William was entitled to a moiety of the leasehold, subject to the annuity, and that the gift to him was not contingent on Henry's claim- ing. Partridge v. Foster (No. 2), 35 Beav. 545. 3. — Testator gave all his estates to his son, and directed that his daughter while single should reside with, and be maintained by, him. But the daughter presently left the son's house of her own accord, and resided elsewhere : — Held, reversing a decision of James, V.C, that the daughter was entitled to maintenance only so long as she resided with the son, he being willing to receive her, and that the obligation on the son did not extend beyond his life. Wilson v. Bell, Law Eep. 4 Chanc. 681. 4. — Where a devise to the issue of B, upon limitations declared by reference to certain pre- ceding limitations to which no condition attached, was accompanied by words apparently imposing a condition on the gift, viz., " in case B," to whom a life estate had been given, " should come to the possession of the estate limited to him": — Held, that such words, having regard to the whole con- text, wBre to be read as an historical description of the order in which the testator contem- plated events happening and not as a condition, so that the issue of B took, although B died before his life estate fell into possession. Edgeworth v. Edgeworth, Law Eep. 4 E. & I. App. 35. 5. — A testator by a codicil, after reciting that he had contracted to purchase certain land, and that his personalty might be deficient to enable his executors to carry out. the obligations of his will, directed them to realise any such deficiency by sale for not less than 8,000^. of the L farm ; and in case they should be unable to obtain 8,000^. for the farm, he bequeathed the farm upon certain condi- tions to his son C A, and in case they did sell and obtain 8,000i., he directed 4,0002. of the same to be invested in land for the benefit of C A upon the same conditions as he would have inherited the L farm in case of non-sale. There was no de- ficiency, and the executors did not sell : — Held, that the devise to C A did not take effect. Warde V. Plumb, 39 Law J. Eep. (n.s.) Ex. 111. [And see LEOAcr (G).] (0) Eestkiction on Alienation. Forfeiture on bankruptcy. [See Foe- FBITUKE.J A testator may not give an absolute interest, either in realty or Jiersonalty, with a proviso res- training alienation, even though the interest should be reversionary and the prohibition should only ap- ply to alienation before the vesting in possession. Powell V. Boggis, 35 Law J. Eep-. (n.s.) Chanc. 472 ; 35 Beav. 635. A testator gave certain lands to his sister for life, and at her death directed the lands to be sold and the proceeds divided among certain persons, and directed that " if any of the persons to whom he had left legacies should sell and dispose of the same before the time of payment that they should receive the same, then he discharged his executors from the payment of such legacies as should have been so sold and disposed of." The sister was sole executrix and residuary legatee. Several of the legatees sold and assigned their shares during the life of the sister: — Held, that the prohibition on alienation was void, and that the assignees were entitled. Ibid. (P) Secret Tettst fob Charity. A residuary devise of real estate, and of personalty savouring of realty to two as joint tenants was held, by the Master of the Eolls, Law Eep. 3 Eq. 635, to have been made on a secret trust for charities, and one of the devisees was held to have assented to the testatrix's desire that he should be a trustee ; and the devisees declared to be trustees for the co-heirs-at-law and next of-kin, although they denied the existence of any secret trust for charity, or their acquiescence therein ; but this decision was reversed on appeal ; the Lord Chancellor holding that the onus to prove the ex- istence of a secret trust for charity being upon the plaintiffs, and they not having proved either that the testatrix had communicated the trust to the devisees, or that they had accepted or acquiesced therein, the bill should be dismissed. Jone» v. Badley, Law Eep. 3 Chanc. 362. [And see Moetmain (C) {d).'] (Q) ExjiotrTOKT Gift. 1 (1 ). — A testatrix, by codicil, revoked a devise of real estate contained in her will, and devised the same to trustees upon trust to settle and convey it in a course of entail corresponding as nearly as might be with the limitations of a barony contained in letters patent, with such powers, &c., as her trustees should consider proper, or their counsel should advise. The limitations of the barony in the letters patent were to D for life, with remainder to her second son and the heirs male of his body, and, in default of such issue, to the subsequent sons of D and the heirs male of their respective bodies. The will gave to the tenants for life powers of jointuring, &c. ; the codicil contained no such powers : — Held, first, that in the settlement the limitations must follow strictly those of the letters patent; secondly, that no powers of jointuring or charging portions could be inserted in it, the Court having no means of ascertaining the amount to which such powers ought to b6 limited, and the direction in the codicil that the settlement should contain such powers, &c., " as counsel sliould advise," being capable of being satisfied in another way. Lord Sblmesdale v. West, 36 Law J. Eep. (n.s.) Chanc. 253; Law Eep. 3 Eq. 474. 1 (2). — The last case, in partaffirmed. Thereisno difference between the construction of an executory trust created by marriage articles, and one created by will. In each the Court will exercise a large authority in subordinating the language to the in- tent. Where a will directed a settlement with limitations to correspond with those of a peerage. WILL, CONSTRUCTION (Q), (R). 633 the intention of the testatrix to endow the peerage was presumed, and a settlement was ordered, limit- ing the estates of the first takers, being lives in esse, to estates for life, though the words of the will would havp gifen them, if taken strictly, es- tates tail ; for, thS^eerage being inalienable, it was presumed that such limitations would best corres- pond in effect with the limitations of the peerage. Sackville- West v. Holmesdale, 39 Law J. Rep^ (n.s.) Chane. 605 ; Law Rep. 4 E. & I. App. 543. [See Maeeiage Settlement, 13.] 2. — Devise upon trust to convey real estate " to the use of A and the heirs of his body lawfully begotten, but in such manner or form nevertheless, and subject to such limitations and restrictions, as that if A die without leaving lawful issue,- then the property, may after his death,descend unencumbered to B and her'heirs " : — Held, that the devise was an executory trust, which would be best executed by a conveyance to the use of A for life, with re- mainder to his first apd other sons and daughters as purchasers in tail, with remainder to B in fee. Thompson v. Fisher, Law Rep. 10 Eq. 207. 3. — A testator bequeathed personalty in trust for a person for her fife, restraining anticipation of income, with remainders over to the sons of such person, and afterwards directed that realty sliould be settled on the trusts declared concerning the personalty, and "in strict settlement": — Held, that the first tenant for life of the realty was to be impeachable for waste. Stanley v. Colthurst, 39 Law J. Rep. (n.s.) Chanc. 660; Law Rep. 10 Eq. 259. Executory devise of copyholds. ,[See Copt- HOLI), 10.] Settlement of heirlooms. [See Hbieloom.] (R) Tbttsts bt eefeeence to othee Tel-sts. (a) Devise " subject to same conditions'' as other property. 1. — One of three sisters being entitled to a third part of rectorial tithes, the other two-thirds having been held by her two sisters, but having been settled on their marriage, by her will gave her "one third part to be equally divided between her two sisters, and to be held by and subject to the same conditions by which they hold the other two parts or shares." The only conditions which affected these shares were the limitations in the marriage settlements:- Held, the two sisters took subject to the tlrasls of their respective settlements. Ord V. Ord, Law Rep. 2 Eq. 393. (J) Exclusion of party othcrvnse entitled. 2. — A younger -son becoming an eldest will not be excluded from benefits under a will by reason of expressions excluding the then eldest son by name not qua eldest son; and the only reference in the will to him as eldest son being by way of description, and not aa indicating the character of the person to be excluded. Woody. Wood, 35 Beav. 687 ; Law Rep. 4 Eq. 48. 3. — A testatrix,by her will, devised real estate in strict settlement, with a proviso that if any per- Digest, 1865-70. son entitled in possession for an estate for life or in tail to, the hereditaments so devised should fail to reside for six successive calendar months in every year in the mansion-house on the estate, the estate of him and his issue should cease, and the hereditaments immediately thereupon go over to the person next entitled in remainder as if the per- son so failing to reside were then dead without leaving any issue inheritable under such entail . She bequeathed the residue of her personal- estate, in case any of the tenants for life should be or be- come at her death beneficially entitled in posses- sion to the hereditaments so devised, and should have any children other than an eldest or only son or daughter beneficially entitled under the limita- tions aforesaid for an estate tail in remainder im- mediately expectant on the decease of his or her parent, in trust for such children as the tenant for life should appoint ; and in default of such ap- pointment for " all and every the children or child of such tenant for life, other than and beside an eldest or only son or an eldest daughter entitled as aforesaid." The first tenant for life under the limitations of the will, incurred the forfeiture consequent on failure to reside for the term prescribed by the will. After the forfeiture he married and left one child :— Held, that such child was entitled to the residuary personal estate, as he was not " an eldest child entitled as aforesaid," his remainder having been destroyed by the forfeiture incurred by his father prior to his birth. Johnson v. Foulds, 37 Law J. Rep. (n.s.) Chanc. 260 ; Law Rep. 5 Eq. 268. 4. — Bequest " unto and amongst such child or children of my son H G as shall be living at his decease (except the one entitled to any real pro- perty upon his father's decease)." After the death of H G his eldest son S became entitled to settled estates by the death of his uncle, to which, had H G been living, he would have been entitled : — Held, that S was expluded from participating in the legacy. In re GrylVs Trusts, Law Rep. 6 Eq. 689. 5. — Devise of realty to W, the first and other sons of E, testator's brother in tail male, remain- der to the first and other sons of A in tail male, with power for the trustee to manage the estate and accumulate surplus income during the minority of any infant tenant in tail, " or other person for the time being entitled " under the trust to grant leases. Bequest of personalty upon trust for all testa- tor's nephews and nieces, except W, or other the person or persons entitled under the trusts to the realty. W predeceased testator. The second son of E was, at testator's death, an infant : — Held, that he was not " entitled " to the estates within the meaning of the will, and therefore was nob ex- cluded from participating in the personalty. Um- bers V. Jaggard, Law Rep. 9 Eq. 200. [See Makeiagb Settlement, 3, 4.] (c) Limitations of personalty by reference to 6. — B G devised freeholds, upon trust for the 4 M 634 WILL, CONSTRUCTION (E), (S). use of E G, hia nephew, for life, with remainders, to the use of his first and other sons in tail male, with successive remainders over for life, and re- mainders to the first and other sons of the succes- sive tenants for life in tail male ; and he bequeathed his residuary personal estate, upon such trusts, &c. as were thereby declared concerning the devised freehold hereditaments, " or as near thereto as the rules of law and equity would permit ; provided, nevertheless, that such residuary personal estate Bhould not be vested absolutely in any tenant in tail, unless such person should attain the age of twenty-one years " : — Held, afiSrming the decision of Lord Chancellor -Westbury, hut Lord St. Leo- nards dissenting, that the proviso merely narrowed the class who would have taken under the pre- vious words of gift, and did not extend such class to tenants in tail by descent ; and therefore the personalty vested only in tenants in tail by pur- chase, and the gift was not void for remoteness. ChriMie and others v. Gosling and others, 35 Law J. Rep. (n.s.) Chanc. 667. Held, also, that the words " as near as the rules of law and equity would permit," would not by their own force have controlled the construction. Ibid. 7. — Devise of real estates to trustees, to the use of A for life, remainder to his first and other sons in strict settlement, remainder over ; and he di- rected the residue of his personal estate, after pay- ing debts, bequests, &c.,to be invested in Consols, ' ' the dividends and interest thereof to be paid from time to time as the same shall become due, unto such person or persons as, for the time being shall, by virtue of this my will, be entitled to the rents and profits of my freehold heredita,ments ;)" and he directed that in case of the total failure of the issue of A and the remainderman, certain further legacies were to be paid ; — Held, that the owner of the first vested estate of inheritance was entitled absolutely to the personalty. In re John- son's Trusts, Law Rep. 2 Eq. 716. Where there is the general intent that the per- sonalty is to go with the realty, that will prevail, unless there be very plain words pointing to a suc- cession of life estates which would be void as a perpetuity. Ibid. 8. — A testator devised and bequeathed real and personal estates on trust to invest the rents and profits and annual proceeds while any person bene- fieially interested in the real and personal estate, by virtue of trusts afterwards declared, should be under twenty-one, for the purpose of accumulation ; and subject thereto in trust for the eldest sou then living of the testator's daughter C for life, remain- der to his first and other sons in tail, with Uke re- mainder to the other living sous of C, with divers remainders over, and an ultimate remainder to the testator's right heirs and next- of -kin. The will of the testator then provided that such person or per- sons as should thereunder be entitled to an esfate tail in possession in the real estate should not be absolutely entitled to the leasehold and personal estates until he, she, or they respectively should attain the age of twenty-one years ; and that the said leasehold and personal estates should abso- lutely belong only to such person or persons as should first attain the age of twenty-one years and become entitled to an estate tail in possession in his real estate under the trusts therein aforesaid ; and in the meantime the same leasehold and per- sonal estates should remain subject to the trusts thereinbefore declared : —Held, that the words " in possession" in the proviso in the wiU did not mean the actual receipt of the rents and profits of the real estate ; and that the proviso included only tenants in tail by purchase and was valid, and that the tenant in tail by purchase who first attained the age of twenty-one years, although in the life- time of the tenant for life, was absolutely entitled (subject to his father's life interest) to the lease- hold and personal estates. 'Holloway v. Webber, Holloway v. Holloway, 37 Law J. Eep. (n.s) Chanc. 865 ; Law Rep. 6 Eq. 523. Marshall v. Holloway, 2 Swanst. 432, considered. Ibid. [And see Power, S.] {d) Limitation of one share by r^erence to trusti of other shares. 0. — A testator bequeathed his residuary pro- perty upon trust, as to one-fourth, for A (a female relative) for her life for her separate use, with re- mainder to her children, and in default, upon trust for B, C and D, in equal shares, and to their issue, in the same manner as after directed lespect- ing their original shares ; and as to another one- fourth, for B (a male relative) for his life, with re- mainder to his children, and in default, upon trust for A, C and D, in equal share?, and to their issue, in the 'same manner as directed respecting their original shares ; and as to another one-fourth, for C (a female relative) and her children, upon the trusts, and with the like remainder over, in default of issue similar to, and in all respects correspond- ing with, the trusts declared concerning the one- fourth share bequeathed in trust for A and her children, as effectually as if the same trusts were there repeated. And as to the remaining one-fourth, for D (a male relative) and his children, upon the trusts, and with the like remainder over, in default of issue, similar to, and in all respects correspond- ing with, the trusts declared concerning the one- fourth share bequeathed in trust for B and his children, as effectually as if the same trusts were there repeated. D died without issue : — Held, that his one-fourth -share went over to A, B and C in equal shares for their lives, with remainder to their children, and not, as was contended, to A, and D. Surtees v. Hop/cinson, 36 Law JlEep (n.s.) Chanc. 306 ; Law Rep. 4 Eq. 98. [And see Poweh, 42.] (S) Remoteness. 1. — Where a bequest is made to persons in esse fur life, with remainder to their unborn children, with a general direction that the female children shall take for their " separate and inalienable use," such restriction against alienation is too remote and void — semble. WILL, CONSTRUCTION (S), (T). 686 Under several bequests to living persons for life, with remainder to their children, bom and unborn, with a general proviso that the shares of females shall be for their separate, inalienable use: — Held, that the restriction against anticipation applied only to the tenants for life, in consequence of a direction for payment to the children, and a proviso that their receipts should be good discharges. Ar- miiagey. Coates, 35 Beav. I. 2. — ^The Court will not look out of a will to decide £k- question of remoteness ; and therefore where there was a general bequest to the children of a married Woman for life, with a gift over on the death of all such children, the Court refused to take into consideration the fact of her having passed the age of child-bearing at the date of the will, and by reading the bequest as a gift to her children^then living, to render the gift over valid. In re Sayei's Trusts, 36 Law J. Rep. (n.s.) Chane. 350 ; Law Rep. 6 Eq. 319. 3. — Testatrix gave property to three persons successively for life, one of whom was unborn at her death, and after the decease of the survivor to all the children of S, the first tenant for life, in equal shares, and the child or children of such of the children of S as should be then dead, with an absolute gift over in case there should be no child or grandchild of the said S then living :— Held, that the limitation over to the children and grand- children of S being a gift to a class to be ascer- tained at the death of a person not in being at the decease of the testatrix was void for remoteness. Stuart V. Cockerell, 39 Law J. Rep. (n.s) Chane. 729 ; Law Rep. 5 Chauc. 718. Decree of Malins, V. C, 38 Law J. Rep. (n.s.) Chane. 473 ; Law Rep. 7 Eq. 363, afBrmed. -Ibid. 4. — ^A bequest of personalty to A for life, with remainder to his issue male and the survivors for their lives, with remainder to B for life, with re- mainder to his issue male and the survivors for their lives, and if B should die without issue male, then to the issue female of A, and the survivors for their lives, with remainder to the executors, administrators, and assigns of the survivor of A and B, or such issue, male or female, who shall happen to be such survivor, is a bequest to a class, which is necessarily ascertainable within the limits prescribed by the rule against perpetuities, confers an absolute contingent interest in such one of that class as may be the survivor, and is not void for remoteness. Avern v. Lloyd, 37 Law J. Rep. (n.s.) Chane. 489 ; Law Rep. 6 Eq. 383. [And see Powee, 24, 25.] (T) Paeticulab Woeds and Phkasbs. "Ml my just debts." [See Administra- tion, 15.] ' •'AM other chattels." [See supra (F) 7.] "And," " or." [See supra (L) (»).] "Appurtenances." [See supra (E) (b) (7).] " Children." [See supra (H) (A) (2) ; (I) (e) (3).] " Child's share." [See supra (D) 2 ; (I) 18.] " Clear yearly sum." [See Lesact, 39.] " Copyhold." [See supra (E) (4) (5).] " Die without issue." [See supra (I) (e) (2).] " Each of my sons." [See supra (M) 13.] "Eldest son." [See supra (I) 16; (R) 3; Marriage Settlement, 4.] ' Entitled." [See supra (R) 5.] "Estate." [See supra (E) (J) (1).] " Except the one entitled upon his father's decease." ' [See supra (H) 16 ; (R) 4.] '' Family, or next-of-kin." [See Power, 4.] " Freehold." [See supra (E) (A) (4).] ' Heirs." [See supra (H) (/ ).] "Heirs and assigns" of a deceased person. [See supra (H) 20.] 'Heirs of the body." [See supra (H) 19.] ' In and for the consideration of paying." [See supra (H) 2S.] ' Issv,e" restricted to children. [See supra (L)9-] . ' Leaving issue." [See supra (L) 9.] ' Leaving no issue." [See supra (L) 10.] ' Live and dead farming stock." [See Le- gacy, 6.] ' Money." [See supra (E) {b) (6) ; Le- gacy, 10, 11.] 'My shares." [See Legacy, 8.] ' My next surviving son." [See supra (L) 24.] ' Nephews and nieces." [See supra (H) (c).] ' Next-of-kin." [See supra (H) (e).] 'Now." [See supra(E) 2.] ' Or," "and." [See supra (L) (m).] ' Other surviving," read " other." [See supra (M) 22.] ' Payable." [See supra (L) 4.] 'Per stirpes." [See supra (H) 26.] ' Personal representatives." [See supra (H) {d).] "Ready money." [See supra (E) 11.] ' Seal estate." [See supra (E) (A) (2).] " Received," read " vested." [See supra (L) 6.] ' Shares." [See Legacy, 7-9.] " Sole." [See supra (I) (i).] ' Sons in tail." [See supra (I) 21.] " Subject to the same conditions'' [See supra (R).] ' Survive." [See supra (M) (o).] ■' Surviving," read " other." [See supra (M) (e).] ' Then." [See Pbobate (B) 12.] ' To be at her disposal for herself -wad family'' [See supra (I) 32.] ' Unmarried." [See supra (L) 25.] ' Vested." [See supra (L) (o),] ' With benefit of survivorship." [See supra (M) {d) (2).] 4u2 636 WILL, FOEMALITIES, ETC. (A), (B). {2.)—VALIBITY OF WILLS AND BEQUI- SITE FOBMALITIES. [See also Peobate.] (A) Competency of Testator. («) 1. — It is essential to the validity of a wiU that the testator ,j at the time of its execution, should know and approve of its contents. HastUow v. Siobie, 35 Law J. Eep. (n.s.) P. & M. 18; Law Eep. 1 P. & D. 64. 2. — In the absence of fraud, the execution of a will by a cumpetent testator is conclusive evidence that he approved the contents thereof, if at the time of execution i;hey were brought to his notice. Guardhouse and others v. Blackbwrn and another, 35 Law J. Rep. (n.s.) P. & M. 116 ; Law Eep. 1 P. & D. 109. A competent testatrix executed a codicil, which had been previously read to her, containing a clause which the solicitor who prepared the codicil stated that he inserted inadvertently, and without ' in- structions from the testatrix : — Held, that the Court had no power to exclude the clause from the pro- bate. Ibid. 3. — The deceased having had a will prepared, in which an annuity (the amount being left in blank) was given to his wife and the residue to his children, and the names of executors were not filled in, at the instigation of those about him exe- cuted it in its unfinished state, at the same time remarking that it would be no good until the blanks were supplied; — Held, that the Court could not on motion, supported by affidavit of these facts, say that the -deceased did not execute the will animo disponendi, and it must be admitted to probate ; but that as there was an uncertainty as to the residuary bequest, the right of the widow, under the statute 21 Hen. 8. c. 5, b. 3, would pre- vail, and administration with the will annexed must be granted to her. In the goods of Pool {deceased), 35 Law J. liep. (n.s.) P. & M, 97 ; Law Eep. 1 P. & D. 206. (6) Undue influence. 4. — The question of undue influence is often a mixed question of the degree of pressure exercised, and the capacity of the testator to resist it. Smith V. Smith, 36 Law J. Eep. (n.s.) P. & M. 13 ; Law Eep. 1 P. & D. 239. 5. — A pressure of whatever character, whether it acts on the fears or the hopes of an individual, if so exerted as to overpower the volition, without convincing the judgment, is a species of restraint under which no valid will can be made. Hall v. Hall, 37 Law J. Eep. (n.s.) P. & M. 40 ; Law Eep. 1 P. & D. 481. (e) Mental incapacity. 6. — A sound and disposing mind means a mind of natural capacity, not unduly impaired by old age or enfeebled by illness or tainted by morbid influence. Although delusive ideas and erroneous beliefs may argue mental alienation, they do so not because they are delusive and erroneous it is in some cases the degree of their divergence from ordinary sense and reason, and in others the mode in which they exhibit themselves, and the forces which they successfully resist for their expulsion, that induce the conclusion of disease. In judging of the sanity of an individual' he should be com- pared in his acts and thoughts with those whom in general temperament and character he re- sembles. It is not right to compare frith an enthusiast one who in daily life "has not shown himself to be of that character or temper, nor in scrutinising his opinions to make such allowances as are found to be necessary in reducing the con- ception of enthusiasts to the ordinary standard of mankind. Smith and others v. Tebbitt and others, 36 Law J. Eep. (n.s.) P. & M. 97 ; Law Eep. 1 P. & D. 398. If disease be once shewn to exist in the mind of the testator, —it matters not that the disease be discoverable only on a certain subject, or that on all other subjects the action of the mind is apparently sound; and the conduct even prudent, — the testator must be pronounced incapable. Further, the same result follows whether or not the particular subjects upon which disease is mani- fested have any connection with the testamentary disposition before the Court. Ibid. 7. — The mere fact that a testator is subject to insane delusions is no sufficient reason why he should be held to have lost his right to make a will, if the jury are satisfled that the delusions have not affected the general faculties of his mind and cannot have influenced him in any par- ticular disposition of his property. Banks v. GoodfiUow, 39 Law J. Eep. (n.s.) Q. B. 237 ; Law Eep. 5 Q. B. 549. At a trial where the question was as to the tes- tamentary capacity of G- it was proved that at one period of his lifetime he had been confined in a lunatic asylum, and that at the time of making his will he was subject to certain fixed delusions. These delusio;is, however, could not be connected with any of the dispositions in the will. The Judge left it to the jury to say whether, at the time of making his will, the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions and free from delusions, as to be able to have a will of his own in the disposition of his property and to act upon it : — Held, that there was no misdirec- tion. Ibid. (B) What Papers are Testamentary. 8 (1). — The deceased executed on the same day three indentures, described as deeds of gift, by which he assigned to trustees all his property for the benefit of his three children : — Held, that as it appeared from the contents of such documents that they Were to take effect only on the death of the deceased, they ought to be admitted to probate as together containing the will of the deceased. In the goods of Samuel Morgan, 35 Law J. Eep. (n.s.) p. & M. 98 ; Law Eep. 1 P. & D. 214. 8 (2). — The deceased executed, in the, presence ' of two witnesses, a paper to the effect, " I wish my WILL, FORMALITIES, ETC. (B), (C). 637 sister to have my savings bank book for her own use." On the same day she gave her sister the book, and authorised her to draw out all the" money in the bank ; but from some informality that was not done in the deceased's lifetime: — Held, that from the terms of the paper itself, and from the declarations of the deceased at the time she executed it, the Court was satisfied that the deceased intended it should operate on her death, and that it must be admitted to probate. Cock v. Cooke, 36 Law J. Rep. (n.s.) P. & M. 5 ; Law Eep. 1 P. & D. 241. 9. — ^At the foot of a deed, to which the deceased was a party, but which disposed of no property after her death, the following document, duly exe- cuted as a will, was written : "I do add unto my will this codicil, hereby revoking any other codicil or codicils heretofore made by me. I constitute and appoint my said son A G" (a trustee under the deed) " my sole and only trustee and adminis- trator under my said will." When the deceased executed this document, she said, pointing to the deed, " This is, my will." Upon motion for a grant of probate of the deed and codicil to A G- as executor: — Held, first, that the deed, as it was not of a testamentary nature, was not entitle!^ to probate. Secondly, that as there was no will, A G- was not an executor. Thirdly, that as the codicil, though it disposed of no property, revoked no codicils, administration with it annexed should be granted to next-of-kin. In the goods of Hvh- hwed, 36 Law J. Bep. (n.s.) P. & M. 27 ; Law Eep. 1 P. & D. 53. 10. — The testator, being domiciled in Scotland, in anticipation of his mar^|ige, which subsequently took place in Scotland, executed a deed of settle- ment, which he also intended should operate as his will. By the law of Scotland, such a docu- ment as a disposition of property at death would not be revoked by the maiTiage of the contracting parties. The testator after his marriage became domiciled in England :- Held, that as the settle- ment was valid 6y the law of domicil as a testa- mentary dispo.sition at the time of execution, as also subsequently to the marriage and at the moment when the testator left the country, it continued valid notwithstanding the change of domicil. In the goods of Eeid, 35 Law J. Eep. (n.s.) p. & M. 43 ; Law Rep. 1 P. & D. 74. 11. — The deceased executed, in the presence of two witnesses, a document called an agreement between himself and his grandson. By this docu- ment he agreed to let, and the grandson to take, on lease, certain lands on certain conditions. The agreement contained a clause by which it was di- rected, that in case the deceased died before the expiration of the lease of rents should be paid to his executors, for the benefit of all his grand- children, and that, on the termination of the lease, the ■executors should dispose of the land as therein directed. The deceased never spoke of this docu- ment as a will or codicil or testamentary paper : — Held, that, inasmuch as this document was not revocable, and was intended to have an immediate operation, it was not testamentary, and could not be admitted to probate. In the goods of George Sobimon, 36 Law J. Eep. (n.s.) P. & M. 93 ; Law Rep. 1 P. & D. 384. ■ 12. — An instrument which disposes of no pro- perty, but simply declares an intention to revoke a previous will, is not a will or codicil, and is therefore not entitled to probate. In the goods of Fraser, 39 Law J. Eep. (n.s.) P. & M. 20 ; Law Eep. 2 P. & D. 40. (C) Incorporation o^ Ex-testamentary Papers into Will. (o) What papers will be held incorporated. 13.— Parol evidence is not admissible for the purpose of incorporating in a duly executed testa- mentary paper, papers not duly executed unless the duly executed paper refers to some written document as then in existence, and describes it in such a manner as to enable the Court to ascertain its identity. Jn the goods of WatMns, 35 Law J. Rep. (n.s.) p. & M. 14 ; Law Rep. 1 P. & D. 19. A testamentary instrument was written on the first three pages of a sheet of paper. ' The portion on the first page only was duly executed, and the only reference it contained to any other paper was the following clause : " I bequeath the following sums to ray sons and daughters hereunder named, and I declare the under-mentioned sons and daughters to be my executors." No names were mentioned in the first page, but on the second and third pages there were unexecuted bequests, and the names of sons and daughters : — Held, that there was not a sufficient reference in the duly ex- ecuted portion of the paper to render parol evi- dence admissible for the purpose of incorporating in it the portion not executed. Ibid. 14. — The deceased executed a will on the first side of a sheet of paper ; on the back of the will was a codicil, to which the signatures of the de- ceased and two witnesses were attached, but which had not been executed in accordance with the re- quirements of the statute. Below this codicil, and partly on the third side of the sheet of paper, was another codicil duly executed. In this last docu- ment there was no other reference to the first codicil than that a specific legacy giv"n in such first codicil was revoked, the legatee's name being misstated : — Held, that as there was a reference, although in erroneous terms, to the contents of the first codicil in the one duly executed, and they were on the same paper, the Court would grant probate of both as incorporated. In the goods of Widdrington, 35 Law J. Eep. (n.s.) P. & M. 66. 15. — The deceased, by her will, gave A all such articles of silver plate and plated articles " as are contained in the inventory signed by me, and de- posited herewith." A list of such articles, profes- sedly the one referred to in the will, signed by the deceased at the foot of each page and at the end, but having on it a date on the last page later than the date of the will, was deposited with the will by the deceased at the banker's. In conversation with one of the witnesses, before the fixecuiinn, the deceased referred to this list, but it was not shewn to the witnesses at the time of the execution 638 WILL, FORMALITIES, ETC. (0), (U). of the will. The deceased subsequently executed a codicil which described itself as a codicil to the will of such a date, but did not confirm it in direct terms; — Held, that the will might be read as if it had been executed at the time of the execution of the codicil; and as the Court was satisfied from the language ol the will so read that the list referred to was then in existence, and from the other evidence that it had been before that date signed by the de- ceased and deposited with her will, it might bp taken to be incorporated therewith, and be ad- mitted to probate. In the goods of The Dowager Baroness Truro, deceased, 35 law J. Eep. (n.s.) P. & M. 89 ; Law Eep. 1 P. & D. 201. 16. — The testator made his will in India and deposited it with a bank at Calcutta. While tem- porarily resident in Scotland he executed a codicil in which he referred in distinct terms to a copy of the will. This copy he produced to the witnesses at the time he executed the codicil, and he de- posited both papers in the hands of the executor : — Held, that the copy was incorporated by the codicil, and probate of the copy-will and codicil was granted, without production of the original will. In the goods of G. G. Mercer, 39 Law J. Eep. (n.s.) p. & M. 43 ; Law Eep. 2 P. & D. 91. (A) What will not. 17. — The testator left the residue of her pro- perty to trustees, save and except such articles of Jurniture, &c., in her house at the time of her death, " as may be ticketed or may be described in a paper in my own handwriting, to shew my intention regarding the same." The testatrix, at the time she instructed her attorney to draw a will, produced to him two lists, which she informed hiili were the papers she intended to refer to, but they were not at the time the will was executed shewn to the witnesses: — Held, that as the will did not describe the papers as being then in exist- ence, the Court could uot receive parol evidence of the fact, and could pot allow them to be incor- porated in the probate. In the goods of Sun- derland, 35 Law J. Eep. (n.s.) P. & M. 82 ; Law Eep. 1 P. & U. 198. 18. — The deceased, in his will, left an annuity to his wife, " to be paid out of the rents and other moneys received by my executors, as hereunder named ... and at her death the whole to be di- vided by my executors as hereinafter described." No name of an executor was mentioned in the will, but beneath the signature of the deceased appeared a clause in his handwriting, which con- tained the names of two persons as executors. There was direct evidence that this clause was written before the deceased executed his will : — Held, that the proof was not sufficient to satisfy the Court that the clause below the signature was the very thing described by the words in the will relating to executors, and that it could not be in- cluded in the probate. In the goods of Dallow, 35 Law J. Eep. (n.s.) P. & M. 81 ; Law Eep. 1 P. & D. 189. 19. — Where the will, if read as speaking at the date of the execution of the codicil, contains language which would operate as an incorporation of a document to which it refers, such document, although not in existence until after the execution of the will, is entitled to probate by force of the codicil. But where the reference in the will was to a future document, and the language of the codi- cil, in which the reference was repeated, was am- biguous and might be read as pointing either to an existing or future document, the Court refused to incorporate unexecuted papers written by the testatrix between the date of the will and codicil. In the goods of Mary Beid, 38 Law J. Eep. (n.s.) P. & M. 1. _20. — A being ill in bed, sent for an attorney's clerk, to whom he gave verbal instructions for the preparation of his will. The clerk made a memorandum of part of them in his presence, and trusted to memory for the remainder. Before the will could be prepared A became suddenly- worse, and he then executed a paper in which he desired that the " instructions given to the clerk " should be carried out: — Held (on motion), that the mere fact of the clerk writing in the presence of A did not make the " memorandum " a written document of which A had cognizance, and that it was not incorporated by the reference to the " in- structions " in the paper. In the goods of WilHam Pascali;Z8^s,w J. Eep. (n.s.) P. & M. 3 ; Law Eep. 1 P. & D. 606. 21. — A executed, in 1866, avrill which referred to written directions, which he intended to form part of the will. This paper, which began, " To my executors, — I have written the following di- rections for your guidance with respect to many things and goods not mentioned in my vrill, which said will very probably will be found at William Weedon's, Esq., solicitor," was further sxibse- quently executed by him according to the pro- visions of the Wills Act. In 1868 he executed a second will, which revcfked aU previous wills, and contained the following clause : " All my books, ' pictures, sketches, guns, rods, goods and chattels in and about the rooms I shall occupy at the time of my decease, I wish my executors to dispose of faithfully and conscientiously according to the written directions left by me, and affixed to this my will, trusting, as I unhesitatingly do, in their honour and integrity." Nothing was afSxed to the will, which remained in the possession of Mr, Weedon, the solicitor who prepared it, and the only paper of written directions forthcoming was that which the testator intended to form part of the will of 1866 : — Held, that it was not incorpo- rated by the reference in the will of 1868, and that as an executed testamentary paper it was revoked by such will. In the goods of James Sebastian Gill, 39 Law J. Eep. (n.s.) P. & M. 5 ; Law Eep. 2 P. & D. 6. (D) ExEODTldN. (a) Signature not seen by witnesses. 22. — The deceased in the presence of the two witnesses wrote something at the bottom of her, will. She then placed a piece of blotting-paper over the attestation clause, in which alone ner name appeared, and asked the witnesses to sign their names at the side, which they did. They did W]LI., FORMALITIES,, ETC. (D), 639 not see the deceased's signature, nor did she ac- knowledge it in their presence. The will termi- nated with a full attestation clause in the deceased's handwriting ;— Held, that as from the circum- stances the Oourt was satisfied that the deceased wrote her signature in the presence of the wit- nesses, although they were not aware of it, the execution was valid. Smith and Smith v. Smith and others, 35 Law J. Rep. (n.s.) P. & M. 65 ; Law Rep. 1 P. & D. 143. 23. — A testator wrote with his own hand on the back of his will, which was duly executed, a codicil, headed " Memorandum, dated the 25th of April, 1863." It purported to have been executed on the 31st of August, 1863, and the attestation clause was perfect, save that it did not state that the testator had signed his name or acknowledged his signature in the presence of the witnesses. The witnesses could not say whether he did either one or the othor in their presence ; they did not see his signature when they signed nor the will on the other side, and nothing was said as to the character of the paper. The Court refused probate of the codicil on motion, but allowed the parties interested, if they thought fit, to propound it. In the goods of J. S. Simnford, 38 Law J. Rep. (n.s.) P. & M. 38 ; Law Rep. 1 P. & D. 630. 24. — ^A testator made lus will, which purported to be witnessed by B, an attorney, and H, his clerk. On the death of the testator B made an affidavit, in order that the executors might obtain probate in common form, as to interlineations and the due execution of the will, and this afiidavit was filled in by H, who knew its purport. Bdied about a year afterwards. H then stated for the first time that the will was not witnessed in the presence of the deceased, and there was no evi- dence the other way. The Court, not being satis- fied under all the circumstances with the evidence of H, declined to act upon it, and pronounced for the wiU. Wright v. Sogers and Goodison, Win- tirburn intervening, 38 Law J. Rep. (n.s.) P. & M. 167; Law Rep. 1 P. &.D. 678. 25. — ^A asked B to witness his will. He subse- quently asked C if he would sign a paper (not mentioning its character) for him, and said he should wish B to be also present at the same time. A few evenings afterwards they met by appoint- ment. A produced a paper from his pocket and (alluding to the death of his wife) observed, — " They were aware that there had been a change in his circumstances which involved an alteration in his affairs." He then so folded the paper that they could not see his. signature or any other writing upon it, but they believed that they were signing his will: — Held, that the circumstances warranted the presumption that the signature of tKe testator was on the paper when the wit- nesses signed, and that there was a sufficient acknowledgment of it. Beckett v. Howe atid others, 39 Law J. Rep. (n.s.) P. & M. 1 ; Law Rep. 2 P. & I). 1. 26. — A asked B, in the presence of C, to wit- ness her will, which lay open on the table. B signed the will, but did not observe A's signature. B then handed the pen to C, but did not see him sign his name. The will was prepared by C. The attestation clause stated that it was signed by the witnesses in the presence of each other, and C had also prepared other wills : — Held, a good execution ; the circumstances warranting the pre- sumption that A's signature was on the paper when B signed, an,d that C, who was aware of the requirements of a will, signed before B left the room. Oliver and another v. Johns and another, 39 Law J. Rep. (n.s.) P. & M. 7. (i) Place of signatwre. 27. — A will was written on the first two sides of a sheet of paper. The lower half of the second side was left blank, and on that blank space there was ample room for the testimonium and attestation clauses, and for the signatures of the deceased and attesting witnesses. These were, however, written on the third side, the signature of the deceased being opposite the first line of the concluding sen- tence of the will, which was the ninth line from the bottom : — Held, that the will was duly exe- cuted. In the goods of Josiah Williams, deceased, 35 Law J. Rep. (n.s.) P. & M. 2 ; Law Rep. 1 P. & D. 4. 28. — The testator wrote out a will on a sheet of paper covering the first two sides and one ha.lf the third ; the lower half of the third side ,was blank. At the top of the fourth side was written an attestation clause, and the signatures of the deceased and the witnesses ; —Held, that under the statute 25 Vict. o. 24, the execution was valid. Hunt V, Hunt, 35 Law J. Rep. (n.s.) P. & M. 136 ; Law Rep. 1 P. & D. 209. 29. — The deceased wrote his will on the first and third sides of a sheet of paper, leaving the second blank. The writing was continued so low down on the third side that sufficient space was not left for the signatures of the deceased and of the witnesses, which were written crossways on the second side : — Held, that under the provision of the statute 15 Vict. c. 24, the execution was valid. In the goods of Coombs, 36 Law J. Rep. (n.s.) p. & M. 25 ; Law Rep. 1 P. & D. 302. 30. — A will and the attestation clause to it, which was in the usual form, were written by the- deceased herself. The only signature of the de- ceased attached to the will was squeezed into what had been a blank space in the attestation clause. ^ The witnesses were asked by the deceased to sign her will, but she wrote nothing in their presence, nor did they or either of them notice the signature of the deceased. The Court being satisfied from the circumstances of the case, that the deceased had signed her name before the witnesses sub- scribed, decreed probate of the will. In the goods of Elizabeth Huckvale, 36 Law J. Rep. (n.s.) P. & M. 84 ; Law Rep. 1 P. & D. 375. 31. — A made his will on a printed form. After he had written his name in the attestation clause, he asked the witnesses to subscribe and attest the will, which they did in his presence. He then wrote his name underneath their signatures, an^ remarked that they were witnesses to his will. The Court being satisfied on the evidence that he intended by signing his name in the attestation 640 WILL, i'OEMALlTIES, ETC. (D), (E). clause to execute the "wiU,^rderecl probate to issue without the signature of the deceased written under the names of the witnesses. In the goods of George Casmore, 38 Law J. Eep. (n.s.) P. & M. 54 ; Law Eep. 1 P. & D. 653. 32. — The name of the testator was at the foot of the will, hut below the names of the attesting witnesses. Both witnesses were dead, and there was no evidence of the order in which they and the testator signed the will, but a due executioii was to be inferred from the attestation clause. The Court decreed probate of the will. In the goods of J. W, Puddephatt, 39 Law J. Eep. (n.s.) P. & M. 84; Law Eep. 2 P. & D. 97. 33. — In a testamentary paper the last sentence commenced above, and was contimied to the left, and was finished below thi signature of the de- ceased. The whole was written before she signed her name. The whole was admitted to probate, and the execution was held to be valid. In the goods of AinswoHh, Law Eep. 2 P. & D. 151. (c) Seaman's will. 34. — A surgeon in the navy was invalided when on foreign service. On his voyage to England in a passenger ship, after being so invalided, he wrote a letter signed by him but not in the presence of two witnesses, giving directions as to the disposi- tion of his personal estate after his death, and died befpre reaching England: — Held, that the letter was entitled to probate as the " will of a mariner or seaman being at sea '' within the mean- ing of 1 Vict. c. 26, s. 11. In the goods of Saun- ders, 35 Law J. Eep. (n.s.) P. & M. 26 ; Law Eep. 1 P. & D. 16. 35. — A mate, whilst on board Her Majesty's ship Excellent, which is permanently stationed in Portsmouth Harbour, and when under age, exe- cuted a will, of which probate was granted to one of the executors named in it. On an application to revoke the probate, the Court held that the de- ceased came under the exception contained in 1 Vict. c. 26, s. 1 1, as a seaman at sea, and, although a minor at the time, that he had legally executed a will. In the goods of M 'Murdo, 3 7 Law J. Eep. (n.s.) p. & M. 14 ; Law Eep. 1 P. & D. 540. {d) Lex loci. 36.^-A dondciled Scotchwoman executed in Scotland, in the English form, a, codicil, which purported to be made in the exercise of powers conferred by English settlements and ftu English will : — Held, dubitanter, upon the authority of In the goods of Alexander, 29 Law J. Eep. (n.s.) P. M. & A. 93, that the coflicil, as it purported to be made under a power, was entitled to probate, although invalid by the law of the domicil of the testatrix. In the goods of Hallyburton, 35 Law J. Eep. (n.s.) p. & M. 122 ; Law Eep. 1 P. & D. 90. 37. — A testator made a will in India, and added a codicil at Florence. They were not witnessed, and were invalid both by the law of England and Italy. He wrote on the back of the will, at Genoa, a second codicil, which was also not witnessed, but which was well executed, though not valid, accord- ing to the law of Italy : — Held, that in determining the question whether a, paper is valid as a tes- tamentary instrument under 24 & 25 Vict. c. 114, the Court can have regard to the law of one coun- try only at a time. It therefore declined to regard so much ot the -Italian law as held the second codicil well executed, and then, recurring to the English law, to apply the principle of confirmation, and refused probate of all three papers. Pechtll ^ V. Hilderley and others, 38 Law J. Eep. (n.s.) P. & M. 66 ; Law Eep. 4 P. & D. 673. [And see Colonial Law.] (e) Mistake in date. 38.— Parol evidence is admissible to shew that a will was executed on a date other than that which it bears. Eeffell v. Beffdl, 36 Law J. Eep. (n.s.) p. & M. 121 ; Law Eep. 1 P. & D. 139. A, executed a will in 1858 and another dated "1865." Both wills contained clauses of revoca- tion, and there was nothing in the second will inconsistent with its execution at the date it bore. The Court, being satisfied by parol evidence that there was a mistake in the date of the second will, and that it was executed in 18b5, admitted it to probate as the last will, and pronounced against fhe>will of 1858. Ibid. (E) Attestation. (a) What is sufficient. 39. — The deceased wrote 'on the first side of a sheet of foolscap paper his intended will, and his sig- nature at the end of it. By the side of the signature was the word " witness," and one name subscribed. At the top of the second page the deceased wrote a memorandum,, describing his leasehold property, but not testamentary. This was subscribed by three persons, whom, in the will, the deceased had nominated as trustees: — Held, that as only one person attested and subscribed the will, the execu- tion was invalid. In the goods of John Wilson, 36 Law J. Eep. (n.s.) P. &M. 1; Law Eep. IP. &D. 269. 40. — The deceased wrote out a list of legacies on three pieces of paper. The first was a sheet paged consecutively on the four sides, and filled with writing ; the second was also a sheet, but the writing only covered the first side, which was paged 5 ; the third was a half-sheet not paged. The first and third papers were dated with diffe- rent dates ; the second was not dated. On a day subsequent to the latest date on these papers, the deceased signed her name, in the presence of two witnesses, at the foot of the writing on each piece of paper ; but the witnesses, by her direction, only signed their names on the first sheet : — Held, that the other two pieces could not be included in the probate. In the goods of Sarah Pearse, 36 Law J. Eep. (n.s.) p. & iVI. 117 ; Law Eep. 1 P. &D. 382. 41. — An attesting witness must himself sub- scribe the will. In the goods of Duggins, 39 Law J. Eep. (n.s.) P. & M. 24. It is not essential that a vritness should sign his own name, provided it is clear that his sub- scripl ion is intended as an act of attestation. Ibid. The name of A, an attesting witness to a will, was at his request subscribed by B, who was WILL, FORMALITIES, ETC. (F), (H). 641 proaent at the execution : — Held, that aa A had not subscribed, and B's subscription was not in- tended as an act of attestation, the will was not duly executed. Ibid, (i) Incapacity of attesting witnesses under 1 Vict. c. 26, s. 15. 42. — ^A wife was an attesting witness to a tes- tamentary instrument by which a legacy was given to a church, "to be disposed of as her husband wished" : — Held, that this gift was good, and did not fall within the 15th section of the Vills Act. Cresswell v. Gresswell, 37 Law J.Eep. (n.s.) Chanc. 521 ; LawE^p. 6 Eq. 69. 43. — By a will duly executed in 1837 a testa- trix devised all her real estate, and the residue of her personal estate to D, whom she appointed executor. In 1861, desiring to deliver over her will and title deeds to D, she signed her name under her former signature. D also signed, add- ing, " executor," and F, a neighbour, also signed ; but both D and F deposed that this signing was not witnessing the will, but merely the delivery to D : — Held, these signatures formed no part of the will. Ergo, D woiid not be incapacitated from taking. Dunn v. Dunn', Law Eep. 1 P. & D. 277. (F) Altekation and Inteelineation. 44. — The deceased duly executed a will in the presence of two witnesses. At his death it was found that certain alterations and interlineations had been made therein, to each of which the de- ceased had placed his initials in the margin, hut he did not call the attention of the witnesses to them, and they could not depose whether such alterations had been made at the time of execu- tion or not. The Court, acting on the evidence of an expert in handwriting, to the effect that such alterations and interlineations had been made at the same time that the will was written, decreed probate of it as altered. In the goods of Hind- march, 36 Law J. Eep. (n.s.) P. & M. 24 ; Law Eep. 1 P. & D. 307. 45. — The deceased, at the time she executed her will, in the presence of witnesses, covered over the writing with a piece of paper, so that the witnesses could form no opinion whether certain interlineations appearing thereon were written at the time of ^ecution. These interlineations in each case were required to complete the sentences to which they belonged, and did not appear, on in- spection of the writing, to have been made at a different time from the body of the will : — Held, that the presumption that unattested additions have been made after execution, does not apply to such a case, and probate was decreed of the will, including the interlineations. In the goods of Ann Cadge, 37 Law J. Eep. (n.s.) P. & M. 15 ; Law Eep. 1 P. & D. 543. "What is left, my books, and furniture, and all other things," arc words sufficiently comprehensive to cover the general residue. Ibid. (Gr) Will of Feme coveet. 46, —A, a widow, under the powers given to Digest, 1866-70, her by her marriage aettlement, executed a will in favour of B. She subsequently married B, with- out having executed any fresh settlement of the property included in her first marriage settlement : — Held, that she had a right to revoke the will so made by any of the niethods prescribed by the Wills Act. HawJcesla/ and Hughes v. Barrow, 36 Law J. Eep. (n.s.) P. & M. 67 ; Law Eep. 1 P. & B. 147. 47. — A married woman, in pursuance of the powers given to her undfer a particular deed, exe- cuted by will and codicil, by which she disposed of all the property referred to in such deed. Her marriage was subsequently dissolved by a decree of the Court, for Divorce, and she re-married. After her second marriage she executed another will, by which, without referring to any power, she disposed of all her property, but she did not therein appoint an executor : — ^Held, that the first will was not revoked by the second marriage, as it came under the exception contained in the 1 Vict. c. 26, s. 18, nor by the second will, as the two were not inconsistent with one another. Pro- bate was granted of all the papers, as together containing the will of the deceased, to the execu- tor named in the first will. In the goo,ds of Char- lotte FenwicJc, 36 Law J. Eep. (n.s.) P. & M. 54 ; Law Eep. 1 P. & D. 319. 48. — A married woman executed a will under powers given t8 her by her marriage settlement. She survived her husband and died without repub- lishing her win. All the next-of-kin, except one in New Zealand, consented to u, general grant of administration with the will annexed of the goods of the deceased being made to the executor named in the ■sill. The Court made the grant without any notice to or consent from the next-of-kin in Ifew Zealand. In the goods of Catherine Thorild, 36 Law J. Eep. (n.s.) P. & M. 119. (H) Revocation and reoival of will, (a) What amounts to revocation, 49. — If a subsequent testamentary paper is only partly inconsistent with one of an earlier date, the latter is revoked only as to those parts where they are inconsistent, and both papers are entitled to probate. Lemage v. Goodban and others, 35 Law J. Eep. (n.s.) P. & M. 28 ; Law Eep. 1 P. & D. 57. In considering whether an earlier testamentary paper is impliedly revoked by a later one, the question is not what papers did the testator intend or expect to be admitted to probate, but what dis- positions did he design to revoke or retain. Ibid. 50. — General bequest to trustees upon trust to divide the same into as many shares as he should leave children, and he bequeathed one of such shares to each child^ &c. By a codicil he revoked all and every bequest in his said will in favour of his daughter E, either in her own right, or by benefit of survivorship, "or in any other manner whatsoever : " — Held, this was not ^a gift to a class, and that there was an intestacy as to E's share, But that T was not excluded, as one 6f the next-of- - 4]Sr 642 WILL, FOEMALITIES, ETC. (H). kin, from participating in tho intestacy. Bamsey V. SlieliAerdine, Law Eep. 1 Eq. 129. * 51. — The testator executed a will which con- tfiine'd a clause revoking all former wills. He sub- sequently destroyed such will, with an intention, expressed at the time, that an earlier will should operate as his last will: — Held, contrary to the decision in Dickinson v. Swaiman (30 Law J. Eep. (n.s.) p. M.'fe A. 84), that the destruction was only a conditional revocatory act, and that, the condition failing, the revocation was not effectual. Powell V. Powell, Powell intervening, 35 Law J. Eej). (n.s.) p. & ly:. 100 ; Law Eep. 1 P. & D. 209. 52. — On the death of the deceased a duly-exe- cuted will was found, and probate thereof obtained. In a suit to revoke such probate, it was proved by parol evidence that a will of later date, not forth- coming, had been in existence and duly executed, and had contained a clause of revocation of former wills. No copy of this last will had been made, and no written instructions had been given for it : — Held, that the deceased had died intestate. Wood v. Wood, 36 Law J. Eep. (n.s.) P. & M. 34 ; Law Eep. 1 P. & D. 309. 53. — A testatrix, by will, before the Wills Act, devised an estate, to which were attached various rights of pasturage and common rights over certain lands. By a subsequent deed, she, in conjunction with t^e other persons entitled, conveyed these rights.'and the lands subject to them, to trustees, on trust to allot the same among the several gran- tors, according to their interests. The trustees af- terwards re-conveyed to the testatrix a portion of the allotted lands : — Held, that the conveyance by her to the trustees revoked the devise as to such lands. Grant v. Bridger, 36 Law J. Eep. (n.s.) Chanc. 377 ; Law Eep. 3 Eq. 347. 54.^Ve];bal declarations or written statements made by a testator in and respecting the making of his will, preceding and accompanying acts done by him in relation thereto, are admissible in evidence in order to shew the quality and nature of such acts. Deseased made a will in 1840, and in 1867, while on a visit to a friend, he employed himself much in writing, and stilted he was writing out his will, and he gave his friend a paper-writing which, he said, was a copy of his will which ho was going to execute. Shortly after he duly exe- cuted a will, which, however, could not be found. The paper-writing revoked all former wills : — Held, that the will of 1840 was revoked by a will made in 1867, which, not being forthcoming, must be presumed to be revoked by destruction, and an intestacy was decreed. Johnson y. Lyford and others, 37 Law J". Eep. (n.s.) P. & M. 65 ; Law Eep. 1 P. & D. 646. 55.' — The testatrix executed a will which re- voked an earlier will. Two years subsequently, while alone in her bed-room she destroyed the later will, and immediately afterwards told her daughter that she had done so with the intention that the earlier will might take effect: — Held, that tho destruction of tho instrument under the circumstances amounted to an absoUite revocation, In the goods of jE. K. Weston, 38 Law J. Eep. (n.s.) p. & M. 33 ; Law Eep. l^P. & D. 633. 56. — Where a testator made two wills, the exe- cutors being different in each, and probate was granted of both documents as containing testator's will ; and in the latter will the words " sole exe- cutors" were used: — Held, that the word "sole" operated as a revocation of the appointment of executors in the earlier will. In the goods of BaUy, Law Eep. 1 P. & D. 628. 57.— J H, by his will, appointed A and B trustees, executors and guardians of his three minor children. He subsequently executed two eoflicils. By the first he revoked all the disposi- tions in favour of his son, and in all other respects confirmed his will. By the second he absolutely revoked and made void all bequests and disposi- tions in his will, and bequeathed all his property to C, his housekeeper, whom, with D and E, lie also appointed executors : — The Court granted probate of the three papers to C and E, power being reserved to A and B, the executors named in the will, to come in if entitled and prove. In the goods of John Howard, 38 Law J. Eep. (n.s.) p. & M. 32 ; Law Eep. 1 P. & D. 636. 58. — The testator made a will in 1831. A few years before his death in 1863, he produced to two acquaintances a paper dated 4th June, 1847, which he alleged to be his will, and got one of them to make a copy of it. This paper was in substance the same as the will of 1831. It had the name of the deceased and the names of two attesting witnesses at the bottom of it, but neither of the persons to whom it was shewn could speak of any of the signatures. The copy which the deceased signed in their presence was forthcoming, but the original document could not be found : — The Court held that there was no evidence of its existence as a will, and granted probate of the will of 1831. In the goods of William Grai/^39 Law J. Eep. (n.s.) P. & M. 42. (b) Dependent relative revocation. 59. — In order to establish a case of dependent relative revocation, it must be shewn by the evi- dence of disinterested witnesses that the act of destruction of a will was referable only and solely to an intention to set up some other testamentary paper. Eckersley v. Piatt, 36 Law J. Eep. (n.s.) P. & M. 7 ; Law Eep. 1 P. & D. 281. (c) Memorandum of revocation admitted t(rprol'ate. 60. — On the death of H his will was found cancelled, and beneath the signature there ap- peared this memorandum, which was duly exe- cuted : " This my last will is hereby cancelled, and as yet I have made no other." The Court, following Brioichley v. Still, 2 Eobert. 162, ad- mitted the memorandum to proof. In the goods of Algernon Hicks, 38 Law J. Eop. (n.s.) P. & M. 65 ; Law Eep. 1 P. & L. 683. {d) What will effect a revival. 61.— By the 1 Vict. c. 26, d. 22, in order that a codicil should, revive a will which in any manner WILL, FOEMALITIES, ETC. (H), (IJ— WEONGFUL DISMISSAL. 643 has Ibeen revoked, it must shew an intention to revive the same : — Held, that such intention will not be shewn by a mere reference to such will by date, but the codicil must contain express words referring to a will as revoked, and importing an intention to revive the same or a disposition of the testator's property inconsistent with any other intention, or some other expression conveying to the mind^of the Court with reasonable certainty the existence of the intention in question. In the goods of May, 37 Law J. Eep. (n.s.) P. & M. 68 ; Law Eep. 1 P. &'D. 35 ; and In the goods of Steele, 37 Law J. Eep. (n.s.) P. & M. 69. 62. — A testator (before the Wills Act) devised two freehold messuages to his wife, who prede- ceased him, for life, and after her death to E, in fee, vto whom he also gave certain legacies. After- wards, by settlement on the marriage of E, he conveyed the same two messuages to the use of E's husband for Ufe, remainder to E for life, remain- der to certain uses which did not take effect, with ultimate remainder to his own right heirs. After- wards, by codicil (also before, the Wills Act),' reciting the provisions made for E, by the settle- ment, he revoked the legacies, and in other respects, except as {herein mentioned, confirmed his will. By the death of 3E and her husband (after the testator), leaving no issue, the ultimate remainder to the testator's right heirs took eifect in posses- sian : — Held, following Jackson v. Hurtock, 2 Eden, 263, that the specific devise in thp will was revived by the codicil, and passed the re-acquired fee. Harvay v. Lloyd, 38 Law J. Eep. (n.s.) Chanc. 634. 63. — It was found that the signature of deceased testator had been cut out, but had been gummed onlto its former place in a will which had continued in testator's possession up to the time of his death: — Held, thatirevoeation must be presumed, and that the gumming afterwards did not revive the will. Bell y . ]rothergill,-Ls.w 'S.&^. 2P. &D. 148. (e) Bevocation hy marriage. 64. — A hy his will'gave a power to B to dispose by will of certain property, which, in default of appointment by her, was to devolve on the person orpefsons who, at her decease, shouldbe her " next- of-kin." B, in pursuance of such power, executed a will in favour of C, whom she afterwards married, hut who died in her lifetime : — Held, that B's will fell within the exception of the 18th section of the Wills Act, and was therefore not revoked by her subsequent marriage. Inthe goods of Mary Ann McVicar, 38 Law J. Eep. (n.s.) P. & M. 84 ; Law Eep. 1 P. & D. 671. (I) Lost Will. [See Probate (B) 30-32 ; (H) 4-6.] WITNESS. [See DnroKCB (0) ; Evidence (A) ; Practice at Law (G) ; Practice in EauiTir (W W) ; Probate (G).] WEONGPUL DISMISSAL. [See Admiralty (A) 2.] ADDENDA. The following Cases have been accidentally omitted. fADMIEALTY. Practice : damage: collision. 1. — In a damage cause brought by the owners of a sailing vessel against a steam vessel, it is not incumbent upon the plaiiitiff to plead that the sailing vessel, after observing the steam vessel, kept her original course. The burden of proof, and therefore' of plea, is in this respect upon the defendant to shew that the course of the sailing vessel was altered, and the collision caused thereby. JTie West of England, 36 Law J. Eep.- (n.s.) Adm. 4. APPEAL. Petition not presented within tviehe months from decree. 2. — The original plaintiff, and the original defendant, in a suit, died after a decree dis- missing the bill, but before an appeal which had been entered against the decree could be heard. The executor of the ■ plaintiff obtained an order to revive as against the administra- tor of the defendant, but this order was not obtained within a year from the decree. He then presented his petition of appeal to the House of Lords: — Held, that the executor of the defendant was not at liberty to dispute the petition on the ground that the petitioner was too late. He should have objected, if at all, to the original order of revivor. CoiipUy v. Luscombe, Muoney v. Sobinson, Law Eep. 3 E. & I. App. 139. * ATTACHMENT (FOEEIGN). Garnishee parting with property to party entitled. , 3. — Garnishee parted with property which had been attached under the Victoria Common Law Procedure Act, 28 Vict. No. 274, sect. 215. The Court, being of opinion that he had part- ed with the property to the person actually entitled, refused to grant an issue to try the question of ownership, or to njake any order against the garnishee in respect of his act : — Held, on appeal, that the Courl^ below was right. "~"' ', V. Traill, Law Eep. 3 P. C. 33. . , BANKEUPTCy. Jurisdiction : creditors' trust deed. 4. — Where one had executed an inspe«tor- ship deed, and afterwards become bankrupt, and in the meantime an incumbrancer had realized his estate, the Court of Chancery refused to exercise its jurisdiction for the administra- tion of the estate, the same being subject to the Court of Bankruptcy. Phillips y. Fruber, Law Eep., 4 CIi.' 747. Bight of creditor to appeal. 5. — A first meeting of creditors having passed without appointing an assignee, it was con- tinued by the Court for that purpose, and a credjtor who proved his debt after that meeting, but before the final choice of an assignee, was allowed to appeal from a decision come to by the Eegistrar at that meeting. Ex parte Barnet, in re Taylor, Law Eep. 4 Ch. 68. Who may vote in choice of assignee. 6. — In the choice of assignee, creditors who have proved for debts under \0l. are entitled to vote. Ex parte Moss, in re Cooper, 37 Law J. Eep. (n.s.) Bank. 1 ; Law Eep. 3 Clianc. 29. Construction of sections 230, 232, of the Bankruptcy Act, 1861. Ibid, Guarantee: secured creditor : double insolvency. 7. — In pursuance of an agreement between A, a trader, and a firm, to assist one another by mutual advances, the firm delivered . to A several acceptances, and they advanced him 5,0002. and A delivered to the firm a quantity of cotton, with a memorandum authorising its sale in default of his repaying the 6,000Z., he also]obtained accept- ances to bills drawn by the firm, and handed to them other acceptances. On the affairs of A and of the firm being wound up, Held, that the holders . of the said bills drawn by the firm were entitled rateably to the proceeds of the wool. Ex parte AckroydSf Co., in re Cheeseborough and in reHaigh, 3 De G. F. & J. 727. Appeal from order of Begistrar. 8.— The Court of Appeal will not hear an appeal from an order of a Eegistrar unless he be sitting as . Deputy Commissioner. Ex parte 646 ADDENDA. Barnett, in re Taylor, 38 Law J. Eep. (n.s.) Bankr. 14 ; Law Eep. ,4 Chane. 352. BOND.. Legality of consideration for. 9. — H owed considerable sums, lost in betting on horse races. In order that he might be allowed to fulfil racing engagements, a sum of money was paid, and a bond given to trustees to distribute among his creditors on such debts. The amount of the cash and bond together was less than half the amount of the debts : — Held, that the bond was valid. Bvhb v. Yelverton, ■ 35 Law J. Eep. (n.s.) Chanc. 428; Law Eep. 9 Eq. 471. CHAEITY. Scheme for. 10.— The income of a local cliarity, founded in 1636, for the purpose of clothing eight poor children, and causing them to be puB to school, having greatly increased, a scheme was authorized for the establishment of an elementary school for the inhabitants, and a superior school not con- fined to the inhabitants. In re Latyiner's Trusts, Law Eep. 7 Eq. 353. CHUECH AND CLEEGY. Monition to replace human hones in hurial ground. ll.-*-The Court having determined tliat the defendant had offended against the laws ecclesias- tical by removing without lawful authority human bones from tlie churchyard of his parish to an adjoining field, issued a monition to him to replace such bones and the earth with them in the burial- ground before a certain day. The defendant failed to comply with this monition, alleging as a reason that the field in which such bones and earth had been placed was no longer in his occu- pation or possession : — Held, that his conduct amounted to a contempt of the Court, and that unless he obeyed the monition witliin six days and certified the same, the Court would pronounce'him to be in contempt, and signify the contempt to the Court of Chancery. Adlam v. Coulthurst, 37 Law J. Eep. (n.s.)Ecc1. 3. \ COLONIAL LAW. Indian Eegistration Acts, 12. — A first mortgagee of lands in Lidia, whose deed was not registered under the Eegistration Act (India,) 1864: — Held, to have no equity against a subsequent registered mortgagee, with notice, of the same lands. HicJcs v. Powell, Law Eep. 4 Chanc. 741. COMP^ANY. Change of business : dissentient minority. 13. — A company may not against the will of any dissentient minority, however small, under- take a business foreign to its original object. Thus a railway company may not become a steam-boat company, or carry on a brewery. Nor may any portion of the funds of the company be applied in procuring the means of carrying on such a different undertaking, as in soliciting a bill in Parliament to confer the powers necessary for such carrying on. Lyde v. The Eastern Bengal Bailway Co., 36 Beav. 10. Contributory : no notice of allotment. 14. — W, at the request of the promoters of a company, aS' he was told, pro form^ signed an application for shares, and at the same time exe- cuted a transfer in blank ; no notice of allotment was sent to him : — Held, that he was not liable as a past-member. In re The British and American Steam Navigation Company , Ward^s case. Law Eep. 10 Eq. 659. Contributory also creditor : set-off. 15. — A contributory of a company in course of winding up, who also held bills of the company, executed an inspectorship deed; a call beingmade on him to an amount exceeding that of the bills, his inspectors were not allowed to prove them against the company, but onljr to set off against the call. In re The Anglo-Greek Steam Navi- gation, ^c, Co., Carralli and Haggard!s Claim. Law Eep. 4 Chanc. 174. Winding-up : Practice: witnesses. 16. — The sister and' nephew of a contributory, from whom money was due on a balance order, having refused to answer any questions relating to their relative or the matter in hand, were ordered to do so at their own expense. Swan's case, in re The Bank of Hindustan, China and Japan,'Law'Ke'p. 10 Eq. 675. Liquidator : effect of notice to. 17. — An assignee of a debt due from a company in course of winding up, by giving notice to the official liquidator does all that is necessary to complete liis title and to take the debt out of the order and disposition of the assignor. In re The Breech Loading Armour Company, Wragge's case, Law Eep. 5 Eq. 284. 8d. fa. against shareholders. 18. — A creditor may be entitled to a sci. fa. against a shareholder in a railway company though the sheriff's ' return to abortiTe writs issued against the company may not have been actually filed at the time of his motion. The notice must be served personally on the share- holder ; the rule nisi may be served on his attorney. The Bfracombe Bail. Co. v. The Devon and Somerset Sail. Co., re Lord Poltimore, Law Eep. 2 C. P. 15. Winding-up : Practice : foreclosure by creditor. 19. — Liberty to institute a suit for foreclosure against a company in winding-up was refused to a ADDENDA. 647 mortgagee, there being no special diffloulty, and it being competent to him to obtain the proper order in chambers without the necessity of a s.uit. In re St. Ouihberfs Lead Smelting Co., 35 Beav. 384. Folic!/ : priority : payment out of property. 20. — The policies of a life assurance company provided that, " after satisfying all assurances granted by the company previously payable, , and all other prior charges on the funds and property of the company," such funds and property shovild alone be liable for the payment of the sum assured : — Held, that a sum which had become payable, but not paid, on a policy before the winding-up, had no priority over claims on polities which had not yet become payable. . In re Ihe International Lif^ Assurance Society, M'lver's Claim, Law Eep. 5 Chanc. 424. CONTRACT. Construciimi of contract for sale of leasehold alehouse. 21. — Agreement between A, a yearly tenant and B for the sale of all A's right, title and interest in a publie-liouse, B bargaining to liave a, good title in the licenses. Proviso, that if the superior landlord refused to accept B as tenant, on eeitain terms which he had agreed to grant to A, the agreement to be void : — Held, not to be a con- tract on the part of A that the superior landlord should grant the terms mentioned to B. Tweed v. Mi Is, Law Eep. 1 C. P. 39. COSTS IN EQUITY. Motion ordered to stand over to the hearing. 22. — The costs of a motion for injunction on which no order was made, except that it should stand over to the hearing : — Held, to be costs in the cause, a perpetual injunction having been made at the hearing, at which the affidavits filed in support of the motion were read. The Attorney General v. The Earl of Lonsdale, Mounsey v. The same, Law Eep. 10 Eq. 557. DiyOECE. Sestitution of conjtigal rights, 23. — A husband, in answer to his wife's suit for restitution of conjugal rights, stated his willing- ness to take her home. The Court adjourned the matter into chambers, the respondent to file an (iffidavit in support of his answer. Crothers v. Crothers, Law Eep. 1 P. & D. 568. Practice: confrontation. 24. — A petitioning wife refused to be confronted with her husband's witnesses, was ordered to supply him with her address, or to attend at the hearing. Lloyd v. Lloyd, 1 P. & D. 222. Cdsts, Queen's Froctor, unsuccessful intervention. 25, — On the authority of Laiitour v. Lautour, 33 Law J. Eep. (n.s.) P. M. & A, 89, the Judge Ordinary held, that he had no power to condemn the Queen's Proctor in the costs of an unsuccessful intervention. Wilson v. Wilson, Law Eep. 1 P, & D. 180. FEIENDLY SOCIETY. Winding-iip, 26. — The rules of a mutual marine insurance association provided that each person thereby insured should be a member, and should insure the ships of other members in proportion to the amount of his own association. If a ship was lost, the owner remained a member for six months. His liability ceased on his selling his ship : — Held (1), that an order might properly be obtained to wind up such a company ; (2)'that the Court could not vary the terms of the contract ; (3) that payment to the secretary discharged the paying member ; (4) that outside creditors must look only to the individuals who ordered their goods or engaged their services. In re The London Marine Insurance Association, Andrews' and Alexander's case, Chatt's case. Crew's case, Cook's case, Law Eep. 8 Bcj. 176. INJUNCTION. To restrain proceeding^ in the Divorce Cottrt, 27. — Injunction to restrain a wife from pro- ceeding- in the Divorce Court to obtain alimony, the husband having by a separation deed cove- nanted to pay her 601. a-year, and it having been thereby agreed on her behalf that she would not in any way endeavour to compel him to allow her any further support, refused. Williains v. Baily, Law Eep. 2 Eq. 731. LANDLOED AND TENANT. Scotch lease of retail shop, 28. — lu the lease of a retail shop there is' not necessarily inherent a prohibition against the use of it for sales by auction. Keith v. Beid, Law Eep. 2 Sc. App. 39. LANDS CLAUSES ACT. nights of holders of rentcharge. 29. — The holders of rentcharges have not only a charge on the lands of the company comprised in their ^several deeds of charge, they have also a charge iipon all the earnings and profits of the undertaking in priority to debenture-holders and other creditors of the company. As between themselves, they are en- titled, to such charges pari passu. EytonY. The Denbigh, Euthyn and Corwen Railway Company, Law Eep. 7 Eq. 339. * 4 N 4 648 ADDENDA. LANDS CLAUSES A01'.- Senewahh leaseholds : tenant for life : renewal fund. 30. — Renewable leaseholds, under a Dean and Chapter, were bequeathed iu trust for one for life, remainder over; the trustees to raise renewal funds by investing two j-ears or more before each time for renewal a sufficient portion of the rents, " so that the estate might be renewedand children provided for for ever." The lands were taken by a railway company. At the same time the estate passed to the Ecclesiastical Commissioners, who refused to renew. The dividends from the pur- chase-money fell short of the income from tlie lands : — Held, that the deficiency could not be made up to the tenant for life out of the corpus. In re Wood's Estate, Law Eep. 10 Eq. 572. LIBEL. Action for : misdirection : appeal. 31. — In an action for libel on a letter, which was in fact a privileged communication, the colonial .Tudge, though the letter was not produced, charged the jury to find whether it was privileged or not, and whether defendant had or not used due diligence to ascertain the truth before he wrote. The jury having found for the plaintiff, with 450^. damages, — the Judicial Committee of the Privy Council allowed the defendant to appeal, notwith- standing the Order in Council of the 13th Feb- ruary, 1839, allowing appeals from the Supreme Court of that colony (St. Helena) only in matters of 500^. and upwards, and though the (fefendant might have applied to the Court below for a new trial; the proceedings having been altogether irregular. Stace v. Griffith, Law Rep. 2 P. C. 420. MARRIAGE SETTLEMENT. Infant : subsequent confirmation in 32. — The plaintiff in 1841, being then an in- fant, in contemplation of marriage executed a settlement of two reversionary funds on herself for life, with remainders over. She attained twenty-one in 1842, and her -husband died in 1846. In 1859 one of the funds having come into possession, she directed that it should be paid to the triistees of the settlement, and that the dividends should be paid to her for life. She never did any act to repudiate the settlement ; — Held, that she had confirmed the settlement generally, so that both funds were bound by it. Davies v. Bavies, 39 Law J. Rep. (n.s.) Chauc. 353 ; Law Rep. 9 Eq. 468. Executory Trusts, 33. — A by a deed agreed to invest 800Z. in the names of trvistees upon trusts, to be declared, for the benefit of B for life, with remainder to her children. On A's death without any subsequent declaration: — Held, that' the deed was executory, and that the settlement so directed ought to limit the 800Z. among the children as tenants in com- mon. Mayn v. Mayn, Law Rep. 5 Eq. 150. PATENT. Trolongation:- Fraciice. 34. — A patentee, seeking a prolongation of the term of his patent, must produce full and clear accounts of the remuneration it has brought him, as well from the manufacture of the article patented (if he was also manufacture]-) as firom royalties, licenses, &c. See ante, Patent, 39, p. 416. On the hearing of an application for prolongation, the ~£v\vy Council will take inta consideration the merit of the invention, but they will not decide anything as to its novelty or utility. In re Saxby's Patent, Law Rep, 3 P. C. 292. PLEADING AT LAW. Eguitable pleas. 35. — The plaintiffs declared as indorsees of two bills of exchange accepted by H, and indorsed over to them by the defendant as surety for H. The fact was, that H had contracted with the plaintiffs for the purchase of some stations in Victoria, the price being the amount secured by the promissory notes ; and it was provided that any dispute that might arise should be referred to arbitration. Disputes had arisen, and an award had been made, reducing the purchase-money by 4,606^. These facts were pleaded by the defendant as an equitable plea. The plaintiffs demurred on the ground, that as tlie defence was only to a part of the amount claimed, the remainder being allowed to go by default, a plea on equitable grounds was inadmissible, and also because the principal, H, was not a party to the action : — Held, aftirming the judgment of the Supreme Court of Victoria, that the plea constituted a good defence to that part to which it was pleaded. Murphy y. Glass, Law Rep. 2 P. C. 408. POWER CONFERRED BY- WILL. To charge : tenant for life dying before testator. 36. — A power of charging the inheritance given under a will to a tenairt for life, who dies before the testator, cannot be exercised by such tenant for life under the 33rd section of the Wills Act. Griggs v. Gibson, Maynard v. Gibson (No. 2), 35 Law J. Rep. (n.s.) Chanc, 548. PRINCIPAL AND AGENT. Architect and builder. 37. — Defendant's architect prepared plans and specifications and submitted them to a builder, the plaintiff, representing the quantities therein made out to be correct. The plaintiff, .relying on this representation, tendered for the work, and was accepted. The architect's quantities proved in- correct, and the work required much more material than the builder had expejjed :— Held, that he ADDENDA. 649 could only recover the contract price from the plaintiff, who was not responsible for the accuracy of tjie quantities furnished by the architect. Scrivener v. Paske, H. & R. 620 ; Law Eep. 1 C.P. 715. PROBATE. Wronff date in both will and probate. 38. — An original will and the copy of it in the probate bore a wrong date. The Court ordered the probate to be amended by stating the true date. In the goods ofAllchin, 38 Law J. Eep. (n.s.) P. & M. 84 ; L.E. 1 P. & D. 684. PUBLIC BODY. Costs of parties interested in lands taken, 39.— The 49th section of 3 & 4 Vict. c. 87, empowering the Commissioners of Woods and Forests to take property in Spitalfields, provides in certain cases for the payment by the Com- missioners of the expenses of all purchasers under the Act: — Held, that the express enactment did not exclude the jurisdiction of the Court as to any other costs. In re Spitalfields Schools and Com- missioners of Woods and Forests, Law Eep. 10 J^. 671. RAILWAY. Interest and dividend paid out of capital. 40. — A railway company, having their line at work, obtained an Act for the formation of an ex- tension line to be made by the issue of new shares, to be called extension shares, which for three years were to be entitled to dividends, not exceed- ing 6 per cent., and after the three years were to be entitled to dividends in common with the holders of existing stock. The extension shares were all issued, and were taken up. The directors con- tracted with-the Contractors that until the line was completed the latter should pay interest at 61. per cent, on the capital; and the contractors stipulated that the sum paid by them should be repaid by the company, if in the opinion of the engineer there had been delay on the part of the company in putting the contractors in possession of the land. The works were not touched, and the engineer gave his certificate relieving the con- tractors. The directors paid the dividend on the extension, debiting and crediting the contractors with the amount. All payments made to the eon- tractors were in the company's own balance-sheet debited to capilal account. Thus, by an indirect process, dividends were paid out of capital. The plaintiff, for the purpose of raising the question of the legality of this proceeding, bought shares: — Held, that whether the proceeding was lawful or not, it was a proper case for an injunction to issue until the cause could bs heard, and that the plaintiff was entitled to raise the question. DiOEST, 186.5^1^). Bloxam v. The Metropolitan Rail. Co., Law Eep. 3 Chane. 337. RATE. What property is liable : moorings in a river. 41. — The appellant was the owner of a coal- hulk, built for the purpose of being fastened to moorings, which the Thames Conservators under- took to fix in the bed of the river in order that she ■ should be fastened thereto. The Conservators fixed the moorings permanently, and granted to the appellant "liberty and licence to fasten and henceforth keep fastened his coal-hulk or- vessel called the Black Prince to the moorings placed by the said Conservators in the said river at Graves- end Reach,, until either party shall have given to the other one calendar month's notice in writing to determine and put an end to this licence. In consideration whereof the said William Watkins agrees with the said Conservators to pay towards the expenses of the said Conservators of placing, maintaining and repairing the said moorings, the annual sum of ZOl." &c. The appellant fastened his hulk to the moorings by means of chain cables from the stern, so that she would swing with the tide, and she remained so fastened for several years, although she might have been towed to any other part of the river. She was used as a store for coals for steam-ships in the river : — Held, that the appellant had no such occupation of the land or of the moorings as would make him liable to be assessed to the poor-rate. Watkinson v. Milton- next- Gravesend Assessment Committee of, 37 Law J. Eep. (n.s.) M. C. 73 ; Law Eep, 3 Q. B. 350. EaUways exempted by local Acts. 42. — The provisions in the local Acts of 1836, exempting the Dundee and Arbroath and Arbroath and Forfar Railways from poor-rates, — Held, to have been abrogated by the General Poor Law Amendment Act, 1845, and by the General Valua- tion of Lands Act,, 1854. Duncan v. The Scottish North-Eastern Railway Company, Law Eep. 2 So. App. 20. SCOTCH EPISCOPAL CHUECH, Authority to make canons or rules for this church. 43. — There is no authority in the Courts of England or of Scotland to take cognizance of the rules of a voluntary association which is a religions so'ciety, such as the Scotch Episcopal Church, unless to protect some civil right or interest which is said to be infringed by their operation, or unless for the purpose of ascertaining who is entitled to the funds of tuch society. Forbes v, Eden, Law Eep. 1 Sc. App. 568. The power to make and to abrogate its own canons rests with the general synod of the Episcopal Church of .Scotland. A suit by a clergyman of the church to Si.'t aside canons so made dismissed Ibid. 40 650 ADDENDA. SCOTCH LAW. Heir male: oha/rge on him for yowiger children. 44. — Where a husband by ante-nuptial articles and post-nuptial settlement conveyed his estate to himself and the heir male of the marriage, and bound himself, his heirs, and successors whomso- ever, to pay 1 6, OOOi. " to the younger child or children of the marriage : " — Held, that the heir alone, taking in that capacity, (and not the heir and the younger children proportionately) was bound to pay the 16,000^., although the inherited estate was only worth 28,000Z., and the free exeoutry or personalty was only 1,500^. Leslie v. Macleod, Law Eep. 2 So. App. 44. 45. — Where the irritant and resolutive clauses in an entail do not fence the prohibition against altering the order of succession, the entail is in- effectual to all intents and purposes. Lord Charles Hamilton v. The Duke of Hamilton, Law Bep. 2 Sc. App. 12. WATERCOUESE. Riparian' owners' right to aheus : appeal. 48. — Riparian proprietors along a non-navigable river are entitled to the alveus or bed of the stream as their absolute property usque ad medium filum flumiuis ; but they must not use their right- so as to interfere with the flow of the stream. At the suit of an opposite, or an adjacent, owner an in- junction would issue to restrain such a use of the alveus, though no damage be actually proved. Bickett V. Morris, Law Bep. 1 Se. App. 47. Before the Court of ultimate appeal a respondent, who had himself appealed from the decision of the Court of first instance, objected to the competency of the appeal on the ground, that the first Court had adjudicated informally : — Held, that as he had himself appealed in the first instance and succeeded, he could not now object to the appeal from the second. Ibid. SHIPPING. Navigation: rules: lights. 46. — Although the omission by a vessel to ex- hibit proper lights may be immaterial where it is clearly shown that their absence was not the cause ofthe collision, the onus of proving that this was so lies on the vessel which has neglected to show proper lights. The Owners of the Fenham v. Wake, The Fenham, Law Bep. 3 P. C. 212. Mortgage of ship: sale by mortgagee: arrest at suit of second mortgagee. 47. — A, a first mortgagee of a ship, being about to sell her, B, a second mortgagee, instituted a suit, and caused the ship to be arrested. A there- upon paid 500?. into Court in lieu of bail, and sold the ship for less than the amount of his mort- gage. B, having then abandoned his suit, was con- demned to pay A his costs. and interest on the 500?. The Western Ocean, Law Eep. 3 A. & E. 38. WILL. " Public funds or Government securities'' Long annuities. 49. — Bequest of residuary estate upon trust to convert into money such parts" thereof as should not consist of money or be invested in any of the public funds or G-overnment securities : — Held, that long annuities of which the testator died possessed were within the exception, and persons, who under the will were entitled to the income of the residue for their lives, were entitled to enjoy the long annuities in specie. WHday v. Sandys, Law Eep. 7 Eq. 455. Bemoteness. 50.— Bequest of residue after death of testator's wife to such of their children as should be then living and such of the issue then living of such of them as should be dead as should attain the age of twenty-three, — Held, void for remoteness. Smith V. Smith, Law Eep. 5 Ohano. 342. TABLE OF CASES. A. Y. B, and another, L.E. 1 P. & D. 559, Di- vorce 13 {Nullity) . . . . Aaltje Willemina, The, L.R. 1 A. & E. 107, Admiralty A 14 (Damaffe and Collision,) ' . A. B., inrej 39 L.J. Ch. 159, Debtor and Credi- tor 9 (^Imprisonment) Aheraman !&on Works, in re Peek's case, L.E. 4 Ch. 532, Company E-eS (Allotment) V. "Wickens, L.K. 4 Ch. 101, T. # P. 8 . Aberdeen, University of, t. Irvine, L.E. 1 Sc. App. 2S9, Scotch Law 19 . Aberystwith Promenade Pier Co. v. Cooper, 35 L.J. Q.B. 44, Counti/ Court 5 AblertT. Pritchard, 35 L.J. M.C. 101 ; H. & E. 274 ; L.E. 1 C.P. 210, Turnpike 7 Abrahams v. Mayor, &c., of London, 37 L.J. Ch. 732 ; L.E. 6 Ch. 625, London 2 Abrey v. Crux, 39 L.J. C.P. 9; L.E. 5 C.P. 37, Evidence 22 (Writhn Contract) . Accidental and Marine Insurance Co. v. Mer- eati, 37 L.J. Ch. 56 ; L.E. 3 Eq. 200, Com- pany F 62 ( Witnesses) in re Mercati's case, L.E. 5 Eq. 22, Com- pany P 95 (SecuHtyfor Costs) ■ in re, ex parte Easch, 36 L.J. Ch. 75, Company P 32 (Rehearing Petition). Biidger and Neill's case, 38 L.J. Ch. 201 ; L.E. 4 Ch. 206, Company P 36 , ex parte Briton Medical and General Life Assurance Association, 39 I/.J. Ch. 585 ; L.E. 5 Ch. 428, Company P 45 Ackroyd, ex parte, in re Cheeseborough, 3 De G. P. & J. 727, Bankruptcy (Appropriation) Addenda 8 . Adames v. HaUett.L.E. 6 Eq. 468, Voluntary 227 10 . 221 124 699 533 . 207 595 . 340 253 155 159 152 126 . 127 446 605 Adams v. Adams and Colter, 36 L.J. P. & M. 62; L.E. 1 P. & D. 333, Divorce 161 . 242 T. Harris, 35 L.J. O.P. 101 ; H. & E. 328 ; L.E. 1 C.P. 155, Parliament A 41 . 399 V. Lancashire, &c. Eail. Co. 38 L.J. C.P. 277 ; L.E. 4 C.P. 739, Carrier 4 . 76 V. Waller, 35 L.J. Ch. 727, Administra- tion 4 (Claim — Stat. Lim.) . . 5 Adams' case, ex parte Holmes, Adams and Pritchard ; in re Financial Corporation, (M.E). 36 L.J. Ch. 87 ; (L. JJ.) 36 L.J. Ch. 695 ; L.E. 2 Ch. 714, Company F 102 . 134 Adie V. Western Bank of Scotland, L.E. 1 Sc. A^^. lid Scotch Law 3 . , ,531 Addinell's case, in re Leeds Banking Co. 35 L.J. Ch. 75; L.E. 1 Eq. 225, Company E 158 . Addison's case, in re Patent Paper Manufac- turing Co., 39 L.J. Ch. 568; L.E. 6 Ch. 294, Company E 172 (Shares held on Condition) Adlam r. Coulthurst, 36 L.J. Eccl. 14 ; L.E. 2 A. & E. 30, Church 26 . . . V , 37 L.J. Eccl. 3, Church Practice^ Addenda 11 Adney y. Greatrex, 38 L.J. Ch. 414, Will G 5. Agra, The, and Elizabeth Jenkins, 36 L.J. Adm. 16 ; 1 L.E. P.O. 501, Shipping E 10. 647 Agra and Masterman's Bank v. Leighton, 36 L.J. Ex. 33 ; 4 H. & C. 656 ; L.E. 2 Ex. 56, BiU of Exchange 26. in re, ex parte Anderson, 36 L.J. Ch. 73; L.E. 3 Eq. 337, Company Q 26. in re, Cannan's Claim, 38 L.J. Ch. 165 L.E. 7 Eq. 102, Company E 78 . , ex parte Asiatic Banking Corporation, 36 L.J. Ch. 222; L.E. 2 Ch. 391, Company G 27, Creditor (Set-off) . , ex parte Waring, 36 L.J. Ch. Ibl, Bank- ing 13 (Branch Bank) Agra Bank, ex parte, in re Barber and Co. 39 L.J. Bankr. 39 ; L.E. 9 Eq. 725, Com- pany G 47 ( Guarantee) , ex parte, in re Worcester, 37 L.J. Bankr. 23 ; L.E. 3 Ch. 556, Bankruptcy 68 . Company C 33 . , ex pajte Tondeur, 37 L.J. Ch. 121 ; 5 L.E. 160, CoBipamy G 43 . AgriculturistCattlelnsuranceCo., in re, 3 DeG. J. & S. 426, Practice in Equity E 7. .in re, Baird's case, L.E. 5 Ch. 725, Ex- ecutor 22 . , Bison's case, 38 L. J. Ch. 567 ; (L.J.G.) 39 L.J. Ch. 134; L.E. 5 Ch. 79, Company E 1\Z (Forfeiture of Shares) . ■ , Evans v. Smallcombe's exors, 37 L.J. Ch. 793 ; L.E. 3 E. & I. App. 249, Company E 108 . Stanhope's case, 35L.J.Ch. 296; L.E. 1 Ch. 161, C()mpa»y E 110 . Stewart's ease, 35 L.J. Ch. 750 Ch. 511, Company's. 116 . Ainsworth v. Creeke, 38 L.J. C.P. 58 ; L.E. 4 C.P. 476, Parliament 33 (Borough) . v.Walmsley, 36 L.J. Ch. 352 ; L.E.I Eq. 518, Injunction 31 {Trade-Mark) . 4 o2 143 145 91 446 617 66 . 163 157 163 42 167 61 112 165, 448 267 136 . 135 L.E. 1 . 135 137 398 289 662 TABLE OF CASES, Ainsworth, in re, ex parte Bayley, L.E. 3 Ch. 244, Bankruptcy 95 {Appeal) . 54 in the goods of, L.E. 2 P. & D. 151, Will, Formalities 33 . . . .640 Atchinson v. Dixon, 39 L.J. Cli. 705 ; L.R. 10 Eq. 589, Baron and Feme 15 . .58 Bomicil 1 . . . _ . 243 Alabasters' case, in re Oriental Commercial Bank, 38 L.J. Ch. 32 ; L.R. 7 Eq. 273, Com- pany C 86 (Amalgamation) . . .119 Company E 165 {Novatio Bebiti). . 143 Albert v. Grosvenor Investment Co. 37 L.J. Q.B. 24; 8 B. & S. 664; L.E. 3 aB. 123, Bill of Sale, 10 . . .' 70 Evidence, 23 . • . . ■ . -253 Albert Average Assurance Association, in re, L.R. 6 Ch 697, Company F 73 . .156 Albert Crosby,-The, Proceeds of, L.E. 3 A. & E. 37, Shipping N 4 . . .654 Albert Life Assurance Co., in re, Bell's case, BleaeWey's case, Kerr's and Stubb's cases, Craig's Executors' case, and, Wilson's case, 39 L.J. Ch. 539 ; L.E. 9 Eq. 706, Company Gr 52 {Insurance Co.) . . . 167 Aldborough Hotel Co., in re, Simpson's case, 38 L.J. Ch. 88 ; (L.JJ.) 39 L.J. Ch. 121 ; L.E. 4 Ch. 184, Company E 170 . . 145 Alderson's case, Bennett v. Brumfltt, 38 L.J. C.P. 65; L.R. 4 C.P. 407, Parliament 66 . 401 Aldous T. Cornwel), 37 L.J. Q.B. 201 ; 9 B. & S. 760 ; L.R. 3 Q.B. 873, Bill of Exch. 4 63 Aldridge t. Medwin, 38 L.J. C.P. 46; L.R. C.P. 464, Parliament 63 . . . 402 Aleppo. The, 35 L.J. Adm. 9, Shipping E 1 646 Alexander v. Jones, 35 L.J. Ex. 78 ; 4 H. & C. 204; L.R. 1 Ex. 133, County Court 4 . 207 V. Mills, 39 L.J. Ch. 407, Power 40 .' 437 v. OfBcers of State for Scotland, L.R. 1 So. App. 276, Scotch Law 4 . .631 V. Sizer, 38 L.J. Ex. 69 ; L.R. 4 Ex. IQ2, Bills of Exchange 5 . . .63 Alexandra Hall, in re, 36 B. 467, Company E 186 ..... 147 Alexandra Park Co. in re. Hart's case, 38 L.J. Ch. 85 ; 6 L.R. 512, Company E 27 .125 Company E 64 {Infant) . . .129 Alexandra, The, 38 L.J. Adm. 29 ; L^. 2 A. & E. 319, Admiralty C 7 . . .12 Alexandre v. Alexandre, 39 L.J. P. & M. 84, Divorce 133 {Suppression of Facts) . 239 Alger V. Parrott, L.R. 3 Eq. 328, Will H 14 . 619 Alice, The, and the Eosita, Fairfoot v. Choi- win, 38L.J.Adm.20;L.E.2P.C.214,^(Zmi- ralty 3 5 {Pleading) . . .11 and the Princess Alice, Reid v. Aber- deen, &c. Steam Co., 38 L.J. Adm. 6 ; L.R. 2 P.C. 245, Privy Council 16 . ' . 473 Alicia, The, the Annie and Aminta, Master and Crews of, v. the Scindia's Master and Crew, 35 L.J. P.C. 53; L.R. 1 C.P. 241; Admiralty CI . . ' . .12 Allan's Pjitent, in re, L.R. 1 P.C. 607, Patent 33 {Prolongation) . . . .415 AUchin, in the goods of, 38 L.J. P. & M. Si iL.R.l 'P. SiD.6Gi, Probate, Addenda 38 649 Allen r. Bennett, L.E. 6 Eq. 522, Bankruptcy 71 {Assignee, Sight against Creditors) V , L.R. 6 Ch. 677, Bankr. ] 7' . T. Carter, 39 L.J. C.P. 212; L.E. 5 CV. Hi, Sheriff 10 T. Duke of Hamilton, L.E. 2 C.P. 630 Practice at Law 32 {Witness out of Jur.) . V. Graves, 39 L.J. Q.B. 167; L.E. 5 Q.Bi 478, Stock Exchange, 13 V. Jarvis, L.R. 4 Ch. 616, Pr. in Eq. E17 V. Taylor, 39 L.J. Ch. 627; L.R. 10 Eq. 62, Pr. in Eq. B 2 {Affidavit) . Covenant 6 {Restraint of Trade) v. Thompson, 39 L.J. M.C. 102 L.E. 5 Q.B. 336, Game 2 {Snaring on Sunday) Sunday ..... v. "Walker, 39 L.J. Ex. 153; L.E. 5 Ex. 187, Baron ^ Feme 17 Pleading at Law 17. v. Warrington, Town Clerk of, 39 L.J. CP. 113, Parliament 62 . , v. Worthey, 39 L.J. M.C. 36 ; L.R. S Q.B. 163, Vaccination Allhusen v. Malgarejo, 37 L.J. Q.B. 169; L.R. 3 G.B. 340, Pr. at Law 5 {Process) . — — . V. Whittell, 36 L.J. Ch. 929 ; L.R. 4 Eq. 295, Tenant for Life 9 . AllianceBank, exparte,inreXeres Wine Ship- ping Co., 37 L.J. Ch. 416 ; L.JJ. 39 L.J. Ch. 112 ; L.R. 3 Ch. 769, Company G 2 . — ■ — ex parte, in re General Rolling Stock Co., 38 L.J. Ch. 151; (L.JJ.) 38 L.J. Ch. 714; L.E. 4 Ch. 423, Bill of Exchange 37 Allison V. Smith, 10 B. & S. 747, Set-off 5 . Alston, ex parte, in re Holland, L.E. 4 Ch. 168, Principal and Agent 16 {Marshalling) V. TrpUope, 36 L.J. Ch. 846; 35 B. 466 ; L.J. 2 Eq. 205, Administration 3 Alton V. Harrison, and Poyserv. Harrison, 38 L.J. Ch. 669 ; L.R. 4 Ch. 622, Deed 2 Amazon, The, 36 L.J. Adm. 4, Admiralty D 3 Ames r. Colnaghi, 37 L.J. C.P. 159 ; L.R. 3 C.P. 369, Shenffi {Arrest) V. Waterlow, 39 L.J. C.P. 41 ; L.E. 5 C.P. 63, Sheriffs {Arrest) . Amory v. Brown, 38 L.J. Ch. 593; L.R. 8 Eq. 663, Patent 64 {Pleading) Amys V. Creed, 38 L.J. M.C. 22; L.E. 4 QB. 122, Nuisance 11 {Semoval) . Anchor Assurance Co., in re, L.E. 5 Ch. 632, Company C 92 {Amalgamation) Anderson v. Anderson, 37 L.J. P. & M. 64; L.R. 1 P. &■ M. 512, Divorce 72 . Anderson's case, in re Agra and Masterman's Bank, 36 L.J.Ch. 73; L.R. 3 Eq. 337, Com- pany G 26 {Creditor Set-off) in re Bank of Hindustan, China, and Japan, L.R. 8 Eq., 509, Company E 100 . . in re, ex parte Anderson, 39 L.J. Bankr., 49; L.E. 5 Ch. 473, Bankruptcy 6 ■ in re, ex parte Anderson, 39 J,.J. Bankr. 32, Bankruptcy 93 . . in the gooc^g of, 39 L.J. P. & M. 65, Probate 85 {Two Wills, Codicil to former) . 62 44 539 441 676- 449 445 211 275 677 68 422, 402 597 438 679 160 634 . 467 222 14 538 538 417 120 234 163 133 43 54 478 TABLE OF CASES. 653 Anderson or Henderson v. London & North- Western Eail. Co., 39 L.J. Ex. 55 ; L.R, 5 Ex. 90, Carrier A 15 Anderson'sTrust Deed, in re, ex parte Dobson, 1 De G. J. & S. 167, and 3 De G. J. & S. 229, Compo. Deed 105- (Assents) Andrewv.Pell,L.E.2C.P.251, Compo.Decdl5 1 in re, ex parte Eippon, L.R. 4 Ch. 639, Bankruptcy 51 {Secured Creditor) . Andrew's- ease, in re Earned's Banking Co. 36 L.J. Ch. 802 ; L.R. 4 Eq. 458 ; (L.J.E.) 37 L.J. Ch. 87 ,- L.R. 3 Ch. 161, Company E 42 {Past Members) , Norris v. the Town Clerk of Hastings, L.E. 4 C.P. 498, Parliament 35 Andrew's and Alexander's case, in London Marine Insurance Association, Friendly Society {Winding-up) Addenda 26 . Andrina, The, L.E. 3 A. & E. 286, Shipping T 16 {Salvage) Ajigell T. Vestry of Paddington, 37 L.J. M.C. ' 171 : 9 B. & S. 496; L.E. 3 Q.B. 715, Me- tropolis L. M. Act 7 . . . Anglesea Colliery Co., in re, 35 L.J. Ch. 546 ; L.E. 2 Eq. 379 ; (on App.), 35 L.J. Ch. 809 ; L.R. 1 Ch. 555, Company E 33 . Anglo-African Co. v. Lamzed, 36 L.J. C.P. 145; H. & E. 216 ; L.R. 1 C.P. 226, Ship- ping D \ . Anglo-Californian Gold Mining Co., in re, 37 L.J. Ch. 78, Company C 31 Anglo-Danish and Baltic Steam Navigation ' Co., in reSahlgreen'sandCarraIl'scase,L.E. 3 Ch. 323, Company E 14 . Anglo-Danubian Steam Navigation and Col- liery Co. T. Eogerson, 36 L.J. Ch. 667; L.R. 4 Eq. 3, Election 1 . Pr. in Eq. PP 3 {Staying Proceedings) . in re, "Walker's case, 37 L.J. Ch. 651 ; L.R. 6 Eq. 30, Company E 94 Anglo-Egyptian Steam Navigation Co., in re. L.R. 8 Eq. 660, Company F 34 Anglo-Greek Steam Navigation Co., in re (No. 1), 35 B. 399 ; L.R. 2 Eq. 1, Company F 24 .151 in re, Carrolli and Haggard's case, L.R. 4 Ch. 174, Company (Set-off), Addenda 15 . (No. 2), 35 B. 419, Company F 29 Anglo-Italian Bank and De Rosaz, in re, L.R. 2 a.B. 452, Arbitration E . Anglo-Eomano Water Co., in re, Wright's case, 39L.J. Ch. 771; L.R. 5 Ch. 437, Company F 85 Angulo y Urruela, in the goods of, 38 L.J. P. & M. 21 ; L.E. 1 P. & D. 598, Probate K 1 Anquez v. Anqiiez, 35 L.J. P. & M. 93 ; L.E. 1 P. &D. 176, Divorce 'li . Anstey v. Newman, 39 L.J. Ch. 769, Mort- gage 27 (Marshalling) Anthony v." Brecon Markets Co., 36 L.J. Ex, 113 ; L.R. 2 Ex. 167, Public Health C 6 . Antrobus v. Wickens, 4 F. & F. 291, Prin. ^ Agent C 9 ( Commission) Appleby v. Meyers, 35 L.J. C.P. 295 ; (Ex. Ch.) 36 L.J. C.P. 331; H. & R. 268; L.R. 2 C.P. 651, C'o»!;racn6 . .191 77 182 48 126 399 647 . 558 364 125 545 112 123 247 461 133 152 646 152 27 158 483 229 373 493 466 Appleton V. Rowley, 38 L.J. Ch. 689 ; L.E. 8 Ex. 139, Baron ^ Feme 9 (Curtesy) . 57 Will, Construction I 12 . . . 622 Arbuthnotv. Streckeisen,' 35 L.J. C.P. 305, Contract 8 (Construction) , . . 189 Archer v. Burke, 37 L.J. P. & M. 30 ; L.E. 1 P. ,& D. 358, Probate Mil .486 Ardley t. Guardians of St. Pancras, 39 L.J. Ch. 871, Way 2 . . . .610 Argentina, The, L.E. 1 A. & E. 370, Skip. H 16 . . . . .543 Armitage v. Armitage, L.E. 3 Eq. 343, Pre- sumption 6 (Marriage) . . . 464 V. Coates, 35 B. 1, Will, Constr. SI .635 V. Jessop, 36 L.J. C.P. 63 ; L.R. 2 C.P. 12, Costs at Law 1 . . .198 Armstrong v. Armstrong, 38 L.J. Ch. 463 ; L.R. 7 Eq. 618, Will, Constr. 13 .620 Arnison, ex parte, in re Heysham v. Hesketh, 37 L.J. Ex. 57 ; L.R. 3 Ex. 56, Tithe 1 . 681 Arnold's Trusts, in re, 39 L.J. Ch. 876 ; L.R. 10 Eq. 262, Will, Censtr. M 22 . .631 Arthur v. Clarkson, 35 B. 458, Trust A 1 .586 Articled Clerk, in re an, H. S. Sherry, 37 L.J. Q.B. 82 ; 9, B. & S. 115; L.R. 3 Q.B. 174, Attorney A 1 . . . .31 Ash y. Lynn, 35 L.J. M.C. 159 ; 7 B. & S. 235 and 356 ; L.R- 1 Q.B. 270, Alehouse 4 17 ■ V. Pouppeville, 37 L.J. Q.B. 65 ; 8 B. & S. 826 ; L.R. 3 Q.B. 86, PI. at Law 2 . 420 Ash in rp, ex parte Harris, 35 L.J. Bankr. 21; L.R. 1 Ch. 469, Bkcy A 4 . .43 Ashbury, ex parte, in re Smith, Knight & Co., 37 L.J. Ch. 264 ; L.E. 6 Eq. 223, Company C 71 (Capital) . . . .117 Ashby V. Harris, 37 L.J. M.C. 164 ; L.E. 3 C.P. 523, Burial Ground 1 . .74 Ashcroft's ease, Bennett v. Brumfitt, 38 L.J. C.P. 72 ; L.R. 4 C.P. 399 »., Parliament 68 403 Asher V. Whitlock, 35 L.J. Q.B. 17; L.E. 1 Q.B. 1, Ejectment 1 . . .2^5 Ashley, ex parte, in re Estates Investment Co., and in re Scholey v. Central Eail. Co. of Venezuela, 39 L.J. Ch. 354 ; L.E. 9 Eq. 263, Company ^132 .... 140 Ashmore's ■ Trusts, in re, 39 L.J. Ch. 202; L.E.' 9 Eq. 99, Will, Constr. L 21 . . 627 Ashton V. Blackshaw, 39 L.J. Ch. 205, Baron ^ Feme .9 . . . .57 Ashworth v. Heyworth, ,38 L.J. M.C. 91 ; 10 B. & S. 309 ; L.R. 4 Q.B. 316, Market 3 353 Asiatic Banking Corporation, ex parte, in re Agra and Masterman's Bank, 36 L.J. Ch. 223 ; L.R. 2 Ch. 391, Company G 27 . 163 in re, ex parte Collum, S9 L.J. Ch. 59 ; i L.E. 9 Eq. 236, Company F 122 . .138 , Eoyal Bank of India's case, L.R. 7 Eq. 91 ; (on App.) L.R. 5 Ch. 232, Company C 11 . . . . .108 Symonds' case, 39 L.J. Ch. 461; L.R. 3 Ch. 298, Company E 70 (Infant) 1 - . 130 Aspinallv. Duckworth, 35 B. 307, Legacy 33 329 Astley V. Gurney, 38 L.J. C.P. Ill ; (Ex. Ch.) 38 L.J. C.P. 337 ; L.E. 4 C.P. 714, Bank- ruptcy 56 .... 49 654 TABLE OF CASES. Astbury, ex parte, in re Eiohards, 38 L.J. Bankr. 9 ; L.R. 4 Ch. 630, Fixtures 7 . 264 Aston V. Wood, L.E. 6 Eq. 419, Charity 13 . 85 Atherton v. British Nation Life Assurance Association, 39 L.J. Ch. 726; L.E. 6 Ch. ' 720; Pr. ««£§■. PP 3 . . .461 in re, ex parte Atherton, 37 L.J. Bankr. 6 ; L.E. 3 Ch. 142, Bkcy. 7 . .43 Atkinson v. Fosbroke, 36 L.J. Q.B. 182; 7 B. & S. 618 ; L.E. 1 Q.B. 682, Slander 7 . 661 T. Mackreth, 35 L.J. Ch. 624; L.E. 2 Eq. 670 H. in Eq. B 4 (Demurrer) . 424 ex parte, in re Brooksbank's Trust Deed, 39 L.J. Bankr. 10; L.E. 9 Eq. 706, Com- position Deed A 101 . . . 182 Atter T. Atkinson, L.E. 1 P. & D. 665, Pro- hate, H 10 {KnowUdge of Testator) . 482 ■ ex parte, in re Penhale and Lomax Con^ solidated Silver Lead Mining Co., 36 L.J. Ch. 615 ; L.E. 3 Ch. 398, Company F 37 • 162 Attorney General v. Birmingham, Corpora- tion of, L.E. 3 Eq. 522, Mimicip. Corp. 12 380 V. Bradford Navigation, Proprietors of, 36 L.J. Ch. 619; L.E. 2 Eq. 71, Injunc- tion 17 [Nuisance) . . . ■ . 287 . V. Bunce, 37 L.J. Ch. 697 ; L.E. 6 Eq. 563, Charity 10 {Cy-prks) . . .84 — — V. Cambridge Gas Consumers' Co., 38 L.J. Ch. 94 ; L.E. 4 Ch. 71, Pr. in Eq.ClO 446 Injunction 24 (Nuisance) . , 288 V. Cecil, Lord Eustace, 39 L.J.,Ex. 201; L.E. 6 Ex. 263, Legacy 8 . . .331 V. Colney Hatch Limatic Asylum, 38 L.J. Ch. 265 ; L.E. 4 Ch. 71, Nuisance 3 . 388 V. Dakin, 36 L.J. Ex. 167; (Ex. Ch.) 37 L.J. Ex. 150; (H.L.) 39 L.J. Ex. 113; L.E. 4 E. & I. App. 338, Crown . . 216 V. Drapers' Company, L.E. 9 Eq. 69, Costs in Equity 39 . . ' . . 206. V. Edmunds, 37 L.J. Ch. 706 ; L.E. 6 Eq. 381, Accmmt 1 . . . .1 Patent IS (Clerk of Patents) . .413 Pr. m Eq. D 4 (Schedules to Answer) . 447 V. Fly, Haddenham and Sutton Eail. Co., 37 L.J. Ch. 822 ; (L.C.) 38 L.J. Ch. 258 ; L.E. 4 Ch. 194, Railway 48 . . .608 V. Gee, L.E. 10 Eq. m, Injunction 22 . 288 V. Halifax, Corporation of, 39 L.J. Ch. 122; L.E. 5 Ch. 116, iVMScmce 4 . .388 Fr. in Eq. E 21 ( Withdrawing Appeal) . 449 V. Lawson, 36 L.J. Ch. 130, Church 24 . 90 — — ■ T. Leeds, Mayor and Corporation, 39 L.J. Ch. 254; (F.C. of App.) ibid. 711; L.E. 5 Ch. 683, Nuisance 6 " . . .389 V. Littledale, 39 L.J. Ex. 207 ; L.E. 6 Ex. 275, Legacy Duty 14 . . . 332 V. Lonsdale, Earl of, 38 L.J. Ch. 335, L.E. 7 Eq. 377, Navigation 1 (Eiparian . 380 647 530 800 85 612 84 618 604 331 618 289 433 471 V. Mounsey, V. Same, L.E. 10 Eq. • 667, Costs in Eq. Addenda 22 v. Manchester, Bishop of, L.E. 3 Eq. 436, Charity 17 . V. Marchant, 36 L.J. Ch. 47 ; L.R. 3 Eq. 424, Charity 16 (Scheme) 86 85 Attorney General v. Market Bosworth School, 35 B. 305, School 1 (Dissenters) . V. Mid-Kent Eail. Co. and South-East- ern Eail. Co., L.E. 3 Ch. 100, 'Railway 4 . V. Eichmond, 36 L.J. Ch. 697 ; L.E. 2 Eq. 306, .^M!sa»oel . V. St. John's Hospital, Bath, 36 L.J. Ch. 207; L.E. 1 Ch. 92, CAaW^y 14 . V. Sidney Sussex College, Cambridge, 38 L.J. Ch. 656; L.E. 4 Ch. 722, Will A 1 . Charity, 8 ( Tru,st on Condition!) . Will HI V. Sittingboume and Sheemess Eail. Co. 35 L.J. Ch. 318; 35 B. 268; L.E. 1 Eq. 636, Railway 26 . V. Upton, 35 L.J. Ex. 138 ; 4 H. & C. 336; L.R. 1 Ex. 224, Legacy 7 V. Wax Chandlers' Co., 38 L.J. Ch. 686 ; (L.JJ.) 39 L.J. Ch. 782 ; L.E. 6 Ch. 503, ' Will, Constr. H 2 . V. West Hartlepool Improvement Com- missioners, 39 L.J. Ch. 624; L.E. 10 Eq. 152, Injunction 35 . V. Wilkinson, L.E. 2 Eq. 816, Power 16. of New South Wales v. Bertrand, 36 L.J. P.O. 61;L.E. IP.C. 520, Privy Counail 10 . V. Macpherson, L.E. 3 P.O. 268, PL at Law 23 (Crim. Information) . , 423 for Prince of Wales v. Grossman, 36 L.J. Ex. 215 ; 4 H. & C.568; L.E. 1 Ex. 381, Venue 1 . . . . .604 of Victoria Colonj, in re, L.E. 1 P.C. 147, Privy Council 4 (Appeal) . . . 471 Attwood V. Alford, L.E. 2 Eq.479, Witt L 20 . 627 Atwoodv. Maude, L.E. 3 Ch. 369, Partner 16 . 408 Atwool V. Merryweather,'37 L.J. Ch. 35, Com- pany D 4 (Suit by Shareholders) . . 121 Audley Hall Co-operative Cotton Spinning Co., in re, 37 L.J. Qh. 904 ; L.E. 6 Eq., , 245, Company F 33 (Rehearing Petition) . 152 Auster v. Haines, 38 L.J. Ch. 385 ; L.E. 4 Ch. 446, Pr. inEq. II 10 . . .458 Austin V. Dowldng, 39 L.J. C.P. 260 ; L.E. 8 C.P. 534, False Imprisonment 1 . . 261 V. Great Western Eail. Co., 36 L.J. Q.B., 201 ; 8 B. & S. 327; L.E. 2 aB. 442, Carrier 2 (Passenger) . . .75 v., Tawney, 36 L.J. Ch. 339; L.E. 2 Ch. 143, Vendor ^ Purchaser 9 . . 600 V. Olsen, 37 L.J. M.C. 34 ; 9 B. & S. 46 ; L.E. 3 a.B. 208, Shipping 2. .655 Austin's case, in re Peninsular, West Indian and Southern Bank, L.E. 2 Eq. 435, Com- pany E 167 (Shares held on Condition) . 144 Australasia, Bank of, v. Kower, 35 L.J. P.C. 13,, Colonial Law 36 . . . 104 Avern v. Lloyd, 37 L.J. Ch. 489 ; L.E. 5 Eq. 383, Will, Constr. S 4 " . . .635 Avery v. Griffin, L.E. 6 Eq. 606, Baron ^ F. 22 59 Ayles v. South-Eastern Eail. Co., 37 L.J. Ex. 104; L.E. 3 Ex. 146, Negligence 4 . 382 Azemar v. Casella, 36 L.J. C.P. 124 ; (Ex. ■ Ch.)36L.J.C.P.263;L.E.2C.P.677,&&l 525 TABLE OF CASES.' 665 227 177 236 487 331 630 126 119 526 158 183 680 . 355 B. V. L., falsely caUed B., 38 L.J. P. & M. 35 L.E. 1 P. & D. 639, Dmorce 10 Baber's Trusts, in re, L.R. 10 Eq. 554, Com- position Seed 69 . Bacon v. Bacon, L.R. 1 P. & D. 167, Divorce 98 ( Custody of Children) . Y. The Queen, 38 L.J. Ex. 5, Probate N 2. Badart's Trusts, in re, 39 L.J. Ch. 645 ; L.E. 10 Eq. 288, Legacy Diitij 5 . Badger v. Gregory, L.E. 8 Eq. 78, WUl M 19. Baglau Hall CoUiery Co., in re, 39 L.J. Ch. 591 ; L.E. 5 Ch. 346, Company E 40 Bagshaw, ex parte, and Wigglesworth, in re Empire Assurance- Corp., 36 L.J. Ch. 663; L.R. 4 Eq. 341, Company C 83 . Bagueley v. Hawley, 36 L.J. C.P. 328 ; L.E. 2 C.P. 625, SaUQ . Bahia and San Eraneisco Eail. Co., in re, and in re Trittin, 37 L.J. Q.B. 176 ; 9 B. & S. 844; L.E. 3 Q.B. 684, Company E 104 . 134 Bahia, The, L.E. 1 A. & E. 15, Admiralty D 9. 14 Bailey and Leetham's case, in re, Trent and Humber Eail. Co., in re, 38 L.J. Ch. 483 ; L.E. 8 Eq. 94, Company F 92 . - . Bailey v. Bowen, 37 L.J. Q.B. 61 ; 8 B. & S. 734; L.E. 3 Q.B. 133, Composition Deed, 115. V. Hobson, 39 L.J. Ch. 270 ; L.E. 5 Ch. 180, Tenant in common, 1 Bailey's Settlement,' in re, 39 L.J. Ch. 388 ; L.E. 9 Eq. 491, Marriage Settlement 3 BaEey's Trusts, in re, 38 L.J. Ch. 237, Judg- ment 2 . . . . Baillie v. BaiUie, 37 L.J. Ch. 225, L.E. 5 Eq. 175, Injunction 39 (Foreign Suit) V. McKewan, 35 B. 177, Banker 6 and Harrison, in re, ex parte Harrison, L.E. 2 Ch. 195, Bankruptcy 87 Baily t. De Crespigny, 38 L.J. Q.B. 98 ; 10 B. & S. 1 ; L.E. 4 Q.B. 180, Covenant 11 . in the goods of, L.E. 1 P. & D. 628, Will, Formalities 56 . . . Bail/s case, in re Bowron, Baily & Co. 37 L.J. Ch. 255; (L.C.) 37 L.J. Ch. 670; LJR. 3 Ch. 592, Company E 17 Baines v. Ewing, 35 L.J. Ex. 194, 4 H. & C. 511 ; L.E. 1 Ex. 320, Marine Insurance 22 Baird's case, in re Agriculturist Cattle In surance Co., L.E. 5 Ch. 725, Executor 22 Company E 164 . Baker V.Alexander, 36 L.J. C.P. 217, Set-off 2 534 Principal and Agent 7 (Compromise) . 466 V. Baker and Grigg, 36 L.J. P. & M. 119, Divorce 157 (Costs) . V. Farmer, 36 L.J. Ch. 819; (L.JJ.) 37 L.J. Ch. 820 ; L.E. 3 Ch. 637, Adnum. 24 . - V. London and South- Western Eail. Co., 37 L.J. Q.B. 53 ; 8 B. & S. 645 ; L.E. 3 Q.B. 91, Production of Documents 2 .— T. Painter, L.E. 5 C.P. 492, Composition Deed S7 .... T. Stephens, 36 L.J. Q.B. 236 ; 8 B. & S. 438 ; L.E. 2 Q.B. 523, Arbitration 13 . . V. Wait, 39 L.J. Ch. 204 ; L.E. 9 Eq. 103, County Court 13 (Equitable Jur.) 296 290 40 53 212 642 124 350 257 144 242 488 . 180 26 208 Bafcei', in re, Waterton v. Field, 37 L.J. Q.B. 65 ; 9 B. & S. 23 ; L.R. 3 Q.B. 173, County Court 34 . . . . .210 Bakewell v. Peters, 38 L.J. C.P. 266; L.E. • 4 C.P. 639, Parliament 48 (Lodger). . 400 Balls V. Metropolitan Board of Works, 35 L.J. Q.B. 101; 7 B. & S. 177 ; L.R. 1 Q.B. 337, Lands Clauses Act 41 . . . 315 Balmforth v. Pledge, 35 L.J. Q.B. 169 ; 7 B. & S. 425 ; L.E. 1 Q.B. 427, Pr. at Law 40 . 443 County Court 22 (New Trial) . . 209 Bamford v. Clewes, 9 B. & S. 539 ; L.E. 3 Q.B. 729, PL at Law C 16 (Equit. Plea) . 422 Bancroft v. Mitchell, 36 L.J. Q.B. 257 ; B. & S. 548 ; L.E. 2 Q.B. 549, Bankruptcy 76 . 52 Banda and Kirwee Booty, in re, 35 L.J. Adm. 11, Admiralty G 29 . . .14 in re, 35 L.J. Adm. 17 ; L.R. 1 A. & E. 109, Booty of War . . .71 Banfield, ex parte, in' re Ellis, 36 L.J. Bankr. 12 ; L.E. 1 Ch. 154, Composition Deed 58 . 176 Bankart v. Bowers, L.E. 1 C.P. 484, Vendor ^ Purchaser 33 . . . .603 V. Tenuant, 39 L.J. Ch. 809; L.E. 10 Eq. 141, La/iidlord and Tenant 16 . . 307 Bank of England, ex parte, in re Barned's Banking Co. 29 L.J. Ch. 759, CompanyG 8 . 161 , in re Price, 36 L.J. Banlcr. 24 ; L.E. 2 Ch. 662, Composition Deed 93 . . 181 Bank of Gibraltar and Malta, in re, 35 L.J. Ch. 49; L.E. 1 Ch. 69, Company 26 . Ill Bank of Hindustan, China and Japan, v. the Eastern Financial Association^ L.E. 2 P.C. 489, Company F 86 (3) . . . 158 V. Smith, 36 L.J. Ch. 241, Company C 1 . 107 in re, Anderson's case, L.R. 8 Eq. 609, Company E 100 . , . .133 in re, ex parte Kintrea, 39 L.J. Ch. 193; L.E. 5 Ch. 95, Company Y, 74 . 130 in re, ex parte Levick and others, L.E. 5 Eq. 69, Company F 83 . . .157 , Mitchell & Aspinall's case, 39 L.J. Ch. 630 ; L.E. 5 Ch. 400, CompanyB 118 . 184 , Smith's case 37 L.J. Ch. 185 ; L.E. 3 Ch. 126, Company '&i?i (Set-off) . .127 , Swan's case, L.E. 10 Bq. 676, Company, (Pr.in Winding-up, Witnesses), Addenda 16 646 Bank of London and National Provincial In- surance Association, ex parte, in re Mug- geridge, 39 L.J. Ch. 620 ; L.E. 10 Eq. 443, Company E 69 . . . .128 in re. Part's case, L.R. 10 Eq. 622, Com- pany C 79 . . . . .118 Bank of Turkey v. Ottoman Co., L.R. 2 Eq. 366, Trust B 9 . . . .688 Bank of Upper Canada v. Bradshaw, L.E. 1 P.C. 479, Company C 2 (Officers of) . 107 Banks v. GoodfeUow, S9 L.J. Q.B. 237 ; L.R. 6 Q.B. 549, Will, Formalities 7 . . 636 Bannister v. Breslauer, 36 L.J. C.P. 195 ; L.E. 2 C.P. 497, Shipping D 6 . .546 Barber v. Fleming, 39 L.J. Q.B. 26; 10 B. & S. 879 ; L.R. 6 Q.B. 59, Marine Insrce. 16 . 348 V. Meyerstein, 39 L.J. C.P. 187 ; L.R. 4 'E.& I. A-gp.Sn, Shipping A 19 . ,643 666 TABLE OF cases; Barber, in re, ex parte Barber, L.R. 5 Ch. 687, Partnership 11 . . , in the goods of, 36 L.J. P. & M. 19; L.R. 1 P. & D. 267, Probate K i . Barber & Co., in re, ex parte Agra Bank, 39 L.J. Bankr. 393 ; L.E. 9 Eq. 7^5, Com- pany Gr 47 (Cruarantee) Barden, in the goods of, L.E. 1 P. & M. 325, Probate B 28 Barfoot, in re, ex parte Prothero, L.E. 3 Ch. 823, Ban/cruptc!/ 107 . Barge's case, in re Oriental Commercial Bank, L.B. 5 Eq. 420, Company's, 63 Barker v. Barker, 39 L.J. Ch. 825 ; L.E. 10 Eq. 438, Legacy 25 {Conditional) . v. Janson, 37 L.J. C.P. 105 ; L.E. 3 C.P. 303, Marine Ins. 24 {Time Policy) Marine Insurance 37 ( Valued Policy) Barlow t. McMurray, L.E. 2 Eq. 420, Pr. in ' % C 10 . V. Mumford, 36 L.J. C.P. 66 ; L.E. 2 C.P. 81, Parliament 66 . V. Orde, L.E. 3 P.O. 164, WillB. 6 Barnard v.Eord, and Carrick v. Eord, 38 L.J. Ch. 671 ; L.E. 4 Ch. 247, Baron ^ F. 28 . Barned'.s Banking Co., in re, 36 L.J. Ch. 215, Company F 42 . Andrew's case, 36 L.J. Ch. 802 ; (L. J.E.) 37 L.J. Ch. 87 ; L.R. 3 Ch. 161, Company E 42 {Past Members) , ex parte Bank of England, 39 L.J. Ch. 759. Company 8. Coupland's Claim, 38 L.J. Ch. 675 ; (L.J.G.) 39 L.J. Ch. 287 ; L.E. 5 Ch. 167, Company 4. , ex parte Contract Corporation, 36 L.J. Ch. 262; L.E, 2 Ch. 360, Company P 55 . , ex parte Contract Corp. No. 2, 36 L.J. Ch. 732 ; (L.JJ.) 37 L.J. Ch. 81; L.E. 3 Ch. 106, Company E 175 . ex parte Delmar, 38 L.J. Ch. 85 ; L.E. 6 Eq. 512, Company E 64 . Forwood's Claim, 38 L.J. Ch. -674; (L.J.O.) 39 L.J. Ch. 133; L.R. 6 Ch. 18, Company G 7 {Secured Creditor) . — Helbert's case, L.R. 6 Eq. 609, Company E 44 {Past Members) Kellock's case, 39 L.J. Ch. 112; L.R. 3 Ch. 769, Company G 2 . . Massey's case, 39 L.J. Ch. 635, Bank 14 , .Thornton, ex parte, 36 L.J. Ch. 190; L.R. 2 Ch. 171, Company F 28 . Stephen's case, L.E. 3 Ch. 753, Company G 46 {Proof, Guarantee) Peel's case, 36 L.J. Ch. 767 ; L.E. 2 Ch. 674, Company B 1 . Westand's case, 37 L.J. Ch. 86, Costs in Eq.i . Barnes, in re. Harper v. Barnes, 36 L.J. Ch. 63. Judgment 7 • Attachment of Debts 4 . T. Barnes and Beaumont, 38 L.J. P. & M. 9 ; L.R. 1 P. & D. 463, Biwrce 96 . T. , 38 L.J. P. & M. 10; L.R. 1 P. & D. 572, Dloorce 128 {Niw Trial) . 239 407 482 167 477 65 128 . 329 3 . 350 . 362 446 402 618 60 153 126 161 160 165 145 129 161 127 160 42 152 166 107 203 297 30 236 PAGE Barnes v. Barnes and Grimwade, 37 L.J. P. & M. 4 ; L.R. 1 P. & D. 505, Divorce 48 . 232 Divorce 120 {Particulars of Charges) . 238 Divorce Wi {Costs, Queen's Proctor) . 242 V. Durham,- 38 L.J. P. & M. 46; L.R. 1 P. & D. 728, Probate K 25 . . 485 -r. Grant, 35 L.J. Eccl. 9; L.R. 1 A. & E. 37, Church 3 {Bate) . . .96 V. Jennings, 35 L.J. Ch. 675 ; L.R. 2 Eq. 448, Marriage Settlement 9 . . 35 6 T. Peters, and ' Bakewell v. Peters, 38 L.J. C.P. 266; L.E. 4 C.P. 539, Parlia- ment 48 . . . . . 400 V. Pinkney, 36 L,J. Ch. 815, Bank- ruptcy 60 . . . . .50 T. Wood, 38 L.J. Ch. 683 ; L.E. 8 Eq. 424, Specific Performance 21 . . 566 Barnet, ex parte, in re Taylor, 38 L.J. Bankr. 14; L.R. 4 Ch. 68, Bankruptcy {Assignee, Choice of). Addenda 5 . . ' . 645 , in re Taylor (2), L.R. 4 Ch. 352, Bank- ruptcy {Appeal), Addenda 9 . . 646 Barnsley v. Taylor, 37 L.J. Q.B. 39, Master ^ Servant 1 . . . .360 Local Board of Health v. Sedgwick, 36 L.J. M.C. 65 ; 8 B. & S. 202 ; L.E. 2 a.B. 185, Public Health 9 . . .494 Barraclough ' v. Greenhongh, 36 L.J. Q.B. 26 ; 7 B. & S. 170 and 943 ; (Ex. Ch.) 36 L.J. G.B. 251 ; 8 B. & S. 623 ; L.E. 2 Q.B. 612, Evidence 16 {Judicial Documents) 261 Barrett v. Hartley, L.E. 2 Eq. 789, Unduf. Influence 2 . .' _ . . . 597 Barron v. Stewart, The Panama, 39 L.J. Adm. 37 ; L.R. 3 P.C. 199, Ship. B 2, 3 . 544 Barrow's case, in re Overeud, Gurney & Co. 38 L.J. Ch. 16 ; L.R. 3 Ch. 784, Company E 177 . . . . . U6 BaiTs V. Fewkes, 35 L.J. Ch. 188, L.E. 1 Eq. 392, Pr. in Eq.PP i . . . 461 Barry, ex parte, Mostyn v. Mostyn, 39 L.J. Ch. 780 ; L.R. 5 Ch. 457, Counsel 2 .206 Barstow v. Black, L.R. 1 Sc. App.''392, Scotch Law 2, 7 . . . - . .632 Bartlett v. Franklin, 36 L.J. Ch. 671, Mort- gage 39 {Interest) .... 376 V. Stinton, 36 L.J. C.P. 238 ; H. & R. 565; L.R. 1 C.P. ,483, Pr. at Law 48 . 443 Barton's Trusts, in re, 37 L.J. Ch. 194 ; L.R. 6 Eq. 238, Tenant for Life 13 . 679 Barwick v. English Joint-Stock Bank, 36 L.J. Ex. 147 ; L.R. 2 Ex. 259, Company G42 . . . . . 165 Baseomb v. Beekwith, 38 L.J. Ch. 636 ; L.R. 8 Eq. 100, Specific Performance, 14 . 565 Vendor and Purchaser 3 . . . 698 Basebe v. Matthews, 36 L.J. M.C. 93 ; L.E. 2 C.P. 684, Malicious Prosecution 1 . 343 Basely v. Forder, 37 L.J. Q.B. 237, Baron & Feme 20 . . . . .55 Bass, ex parte, in re Motion, 36 L.J. Bankr. 39, Banktcy 47 {Proof by Partner) ' . 48 Bastow & Co., in re, ex parte Bastow, 36 L.J. Ch. 899 ; L.R. 4 Eq. 68 ; (L.J.E.) 37 L.J. Ch. 61, Company F 105 159 TABLE OF CASES. 667 Bateman v. Boviiton, 31 L.J. Ch. 18r(oi App.) 568 ; L.R. 1 Ch. 359, Award 5 . 25 V. Gray, 37 L.J. Oh. 692 ; L.R. 6 Eq. 215, Will, Constr/K 3 . . 618 V. Mid- Wales Rail. Co., 35 L.J. C.P. 205 ; H. & R. 508 ; L.R. 1 C.P. 4i9, Bail- ■way 13 .... . 502 ^ex parte, 39 L.J. Ch. 383 ; L.R. 9 Eq. 660, Frokibition 3 . . . .49} Bates V. Hewitt, 36 L.J. Q.B. 282 ; L.R. 2 Qi.'B. 595, Marine Insurance 3 . . 345 , ex parte, in re Progress Assurance do., 39 L. J. Ch. 496, Company G 31 {Set-off) . 164 Bates' Patent, in re, ex parte Bates and Redgate, 38 L.J. Ch. 501; L.R. 4 Oh. 577, Patent 10 {Prov. Specification') . 411 Battie's ease, in re Smith, Knight & Co., 39 L.J. Oh. 391, Company E 76 . . 130 Banman v. Yestry of St. Pancras, 36 L.J. ]M:.C. 126; 8 B. & S. 446; L.R. 2 Q.B. 528, Metropolitan Building Ads 4 . . 366 Baumann T. James, L. R. 3 Ch. 508, Frauds, Stat. of9. . . . . 269 Baxendale v. Great Eastern Rail. Co., 38 L.J. Q.B. 137 ; 10 B. & S. 212 ; L.R. 4 Q.B. 244, Carrier 16 . . . .78 v. London and South-Western Rail. Co., 35 L.J. Ex. 108 ; 4 H. & C. 130 ; L.R. 1 Ex. Z7, Carrier 30 [Umtsual Charges) . T. MeMurray, L.R. 2 Ch. 790, Pr. in Eq. E 2 {Eehaaring) Easement 8 ( Water) Baxter v. Langley, 38 L.J. M.G. 1 ; L.R. 4 C.P. 21, Disorderly House 2 Bayley, ex parte, in re Ainsworth, L.R. 3 Ch. 244, Bankruptcy 95 . . . Bayley's Settlement, in re, 39 L.J. Ch. 388; L.R. 9 Eq. 491, Marriage Settlement 3 Baylis v. Baylis, Teevan and Cooper, 36 L.J. P. & M. 89 ; L.R. 1 P. & D. 395, Divorce 45 '231 V. , 36 L.J. P. & M. 1 30, Divorce 75 234 Baylis, ex part«, in re European Banking Co., 35 L.J. Ch. 690 ; L.R. 2 Eq. 521, Com- pany F 1 5 {Petition to wind up) . , in the goods of, 36 L,J. P. & M. 15 ; L.R. 1 P. & p. 21, firecMtor 6 Bayly's case, in re Bowron, Bayly & Co. 37 L.J. Ch. 255 ; (L.C.) 37 L.J. Ch. 670, Company ^n Bazeley v. Forder, 37 L.J. Q.B. 237 ; 9 B. & S. 599; in Ex. Oh. 9 B. & S, 725; L.R. 3 Q.B. 559] Baron §• Fem£ 20 Beach v. Sleddon, 39 L.J. Ch. 123, Pr. in Eq. LL 3 . . . .460 Beadell v. Perry, L.R. 3 Eq. 465, Injunction 45 291 Beadnell T. Beeson, 37 L.J. Q.B. 171; 9 B. & S. 315; L.R. 3 Q.B. 439, County Court 16 . . . . .208 Beal, ex parte, in ro Beal & Graves, 37 L.J. Q.B. 161 ; 9 B. & S. 396 ; L.R. 3 Q.B. 387, Copyright 17 {Photographs) . .197, V. Smith, 38 L.J. C.P.. 146; L.R. 4 . Cf.P. 146, Parliament 11 {Petition) . 395 Beardmore v. Wilson, 38 L.J. C.P. 91 ; L.R. 4 C.P. 57, Lease 6 {Assignment) , . 323 Digest, 1865-70. 80 447 245 223 54 355 150 265 124 58 PAGU Beasney's Trusts, in re,. 38 i;i.J. Ch. 159; L.R. 7 Eq. 498, Presumption 3 {Death) . 463 ' Beatrice, The, 36 L.J. Adm. 10, Admiralty D 1 . . . . .14 Admiralty A 3 {Jurisdiction) . . 9 Beaty v. Ourson, 38 L.J. Oh. 161; L.R. 7 Eq. 194, Trust E 2 . . .693 Beauchamp, Earl of, v. Great Western Rail. Co., 37 L.J. Ch. 74 ; (L.JJ.) 38 L.J. Oh. 162 ; L.R. 3 Ch. 745, Lands CI. Act 73 . 318 V. Wynn, 38 L.J. Ch. 656 ; L.R. 4 Ch. 662, Warren . . . .608 Beaufort, Duke of, v. Crawshay, 35 L.J. C.P. 342 ; H. & R. 638 ; L.R. 1 C.P. 699, Evi- dence 26 . . . . , .253 , ex parte, in re Parry, 36 L.J. Ch. 651 ; L.R. 2 -Eq. 95, Escheat . . . 248 Beaujolais Wine Co., in re, ex parte Wragge, 37 L.J. Ch. 220 ; L.R. 3 Ch. 16, Company ' F 6 ... .149 Beaumont v. Oliveira, 38 L.J. Ch. 62 ; (L.JJ.) ibid. 239 ; L.R. 4 Ch. 309, Church 6 , . 83 .Beavan, in the goods of, 35 L.J. P. & M. 25; L.E. 1 P. & D. 18, Probate B 1 , . 475 Becher v. Great Eastern Rail. Co., 39 L.J. Q.B. 122 ; L.R. 5 Q.B. 241, Carrier 7 . . 76 Beck's Trusts, in re, 37 L.J. Ch. 233, Will, Construction M, 21 . . . .631 Beckett v. Howe, 39 L.J. P. & M. 1 ; L.R. 2 P. & D. 1, Will, Formalities 26 . . 639 V. Midland Rail. Co., 36 L.J. C.P. 163 ; H. &R. 189 ; L.R. 1 C.P. 241, Lands Clauses Act 36 . . . .315 V. (No. 2), 37 L.J. C.P. 11; L.R. 3 C.P. 82, Lands Clauses Act 19 .311 Beddall v. King, 38 L.J. C.P. 249 ; L.R. 4 C.P. 649, Composition Deed 6 . .169 Bedford v. Bedford, 35 B. 342, Pr. in Eq.lli 458 ■ V. — -, 36 B. 584; Annuity 13 . .20 Beech V. Rathbone, 35 L.J. P. & M. 26, Pro- hate K 19 {Issues) .... 485 BeeTor v. Luck, and Beeror v. Lawson, 36 L.J. Oh. 865; L.R. 4 Eq. 537, MortgageZO 374 Beioley v. Carter, 38 L.J. Ch. 92; (L.JJ.) . ibid. 283 ; L.R. 4 Ch. 230, Settled Estate 1 535 ' Belaney J. Belaney, 36 L.ff. Ch. 265 ; 35 B. 469 ; L-E- 2 Ch. 138, WUl, Gonstr. E 7 .614 Bell V. Aitkin, 37 L.J. C.P. 168,; L.R. 3 C.P. 320, Costs at Law 28 {Attendances) . 201 T. Bird, L.R. 6 Eq. 635, Compo. Deed 109 ..... 182 V. Blyth, 37 L.J. Oh. 626 ; (F.C. of App.) 38 L.J. Ch. 178; L.R. 4. Ch. 136, Shipping M 4 . . . .663 Y. Fothergill, L.R. 2 P, feD.' 148, Will, Formalities 63 . . . .643 V. Kennedy, L.R. I Sc. App. 307, Domi- cil6 243 V. Wilson, 35 L.J, Oh. 337 ; L.R. 1 Ch. 303, Mines 14 . . . .369 , ex parte, in re Haytor Granite Co., 36 L.J: Ch. 154, Company G 16 . . 162 Bell's 'case, in re Albert Life Aesiitanee Co., ' 39 L.J. Ch. 539 ; L.R. 9 Eq. 706, Coinpany G52 167 4P 658 TABLE- OF CASES. Bell's Estatp, in re, Foster v. Bell, L.R. 9 Eq. 172, Pr.in Ej. HH 6 (Seoeiver) . . 458 Bellingay v. Bellingay, 35 L.J. P. & M. 84 ; L.E. 1 P. & D. 168, Divorce 134 . . 239 Bence v. Gilpin, 37 L.J. Ex. 36 ; L.E. 3 Ex. 76, Go^kold 4 . . . .193 Bengal, The, L.K. 3 A. & E. 14, Admiralty C 21 . . . . . Benham's Trusts, in re, 36 L.J. Ch. 502 ; (L.J.E.) 37 L.J. Ch. 265; L.E. 4 Eq. 416, Freswmption Bennett v. Brumfitt, 37 L.J. C.P. 25 ; L.Ei 3 C.P. 28, Parliament 68 . T. , Alderson's casef, 38 L.J. C.P. 65 ; L.E.. 4 C.P. 407, Parliament 56 V. , Asheroft's ease, 38 L.J. C.P. 72 ; L.E. 4 C.P. 399 »., Parliament 68 Bpnyon v. Fitch, 36 B. 670, Mortgage 2 Beresford t. Geddes, 36 L.J. C.P. 116; L.E. 2 C.P. 285, Pr. at Law 36 Berkhampstead School ease, L,E. 1 Eq. 102, Scliool 2 . Bermondsey, Vestry of, v. Brown, 35 B. 226; L.E. 1 Eq. 204, Vestry 2 . Bermono, Neelkisto Deb, v. Beerchnnder Tha- koor, 37 L.J. P.C. 7, Priiiy Council 17 Berndtson v. Strang, 36 L.J. Ch. 879; (L.C.) 37 L,J. Ch. 665 ; L.E. 3 Ch. 808, Stop- page in transitu 1 . . . Bernoy v. Bishop of Norwich, 36 L.J. Ecel. 10, Church 43 ... . Berridge v. Beavan, 4 De G. F. & J. 316, Pr. in Eq. K 1 {Charging Order) V. Fitzgerald, 38 L.J. G.B. 335 ; 10 B. & S. 668 ; L.E. 4 Q.B. 369, Bill of Ex. 17 . Berrie v. Howitt, 39 L.J. Ch. 119; L.E. 9 Eq. 1, Attorney 45 {Lien) . Berry v. Da Costa, 36 L.J. (C.P.) 196; H. & E. 291 ; L.E. 1 C.P. 331, Marriage 4 V. Harris, 36 L.J. C.P. 104; H. & E. 328 ; L.E. 1 C.P.' 155, Parliament 41 T. Henderson, 39 L.J. M.C. 37; L.E. 5 Q.B. 296, Poison 1 . . . Beta, Owners of the, v. Eollanio, 38 L.J. Adm. 50 ; L.E. 2 P.C. 447, Ad.niralty k 15 Betteley v. Stainsby, 36 L.J. C.P. 293; L.E. 2 C.P. 568, Bankrupt 45 . Belts V. De Vitre, 37 L.J. Ch. 325 ; L.E. 3 Ch. 429, Patent 28 . V. Neilson, 37 L.J. Ch. 321 ; 3 De G. J. & S. 82 ; L.E. 3 Ch. 429 ; (on App.) 40 L.J. Ch. 317; L.E. 5 E. & I. App. 1, Pa- tent 24 .... , 414 Injunction 41 {DamMges) . . 416 ■ T. GaUais, L.E. 10 Eq. 392, Patent 42 . 416 Beverley Commissioners, in re, ex parte Fitz- Gerald, 39 L.J. Q.B. 1 ; 10 B. & S. 813 ; L.E. 5 Q.B. 1, Parliament 8 . . 395 in re ; ex parte FitzGerald and Flint, 39 L.J. Ex. 17; L.R. 5 Ex. 21, Parliament 9 . 395 Beyfus v. Bullock, L.E. 7 Eq. 391, Bankr. 13 44 Bickendcn v. Williams, 38 L.J. Ch. 222 ;' L.E. 4 Eq. 310, Power 32 . , . 435 Bickerstaff, in re, ex parte Eoche, 37 L.J. Bankr, 16; L.E. 3 Ch. 238, Bankr. 94 . 54 13 . 463 402 401 403 524 442 . 530 606 473 676 96 450 65 37 364 . 399 427 10 48 414 PAGE Bicket V. Morris, L.E. 1 Sc. App. 447, Water- eowrse. Addenda 48 . . . 650 Bickford v. Daroy, 35 L.J. Ex. 202 ; 4 H. & C. 534 ; L.E. 1 Ex. 364, Pr. at Law 23 . 440 Bickley v. Bickley, 36 L.J. Ch. 817 ; L.E. 4 Eq. 216, Copyhold 2 Biddick, The, 38 L.J. Adm. 24, Admiralty D 13 Biddulph, in re, ex parte Norris, 38 L.J. Bankr. 5 ; L.E. 4 Ch. 280, Trust C 6 Biedermanv. Stone, -36 L.J. C.P. 198; L.E. 2 C.P. 604, Stock Exchange 8 Biggs' ease, in re East Konsberg Mining Co. 35 L.J. Oh. 216 ; L.E. 1 Eq. 309, Company E 121 . , in the goods of, 37 L.J. P. & M. 79 ; L.E. 1 P. & D. 595, Probate F 2 . Biglin V. Wylie, 36 L.J. Q.B. 307, Sewer 2 . BiUingay y. Billingay and Thomas, 36 L.J. P. & M. 84; L.R. 1 P. & D. 68, Divorce 134 239 Bindley v. Mulloney, L.E. 7 Eq. 343, 5. # ^. 42 Binney v. Ince Hall Coal and Cannel Co., 35 L.J. Ch. 363, Company 69 . Binns v. Nichols, .35 L.J. Ch. 635; L.E. 2 Eq. 256, Limitations, Stat. of9. Executors 19 {Duties of) Birch T. Sherratt, 36 L.J. Ch. ' 925 ; L.E. 2 Ch. 644, Annuity 5 . . . Birch— Wolfe t. Birch, 39 L.J. Ch. 346; L.E. 9 Eq. 683, Tenant for Life 1 . Bird V. Bird, 35 L.J. P. & M. 102 ; L.E. 1 P. &D. 231, DzTOTOe 102 . V. Elwes, 37 L.J. Ex. 91 ; L.E. 3 Ex. 226, Lease 11 {Agreement to repair) T. Harris, 39 L.J. Ch. 226 ; L.E. 9 Eq. 204, Will, Constr. H 26 . Birks V. Clarke, 39 L.J. Ex. 166; L.E. 6 Ex. 197, Composition Deed 14 Birmingham Banking Co., in re, ex parte Brinsley, 36 L.J. Ch. 160, Company E 54 . ex parte, in re London and Mediterra- neanBanking Co., 37 L.J. Ch. 905 ; L.E. 3 Ch. 661, Compawy E 84 . Birmingham Blue Coat School. Trustees, ex parte,35L.J. Ch. 837; 36 B. 345; L.E. lEq 632, Pr. in Eq. CC 1 Birt v. Boutinez, 37 L.J. P. & M. 50 ; L.R. 1 P. & D. 487, Marriage 1 . Bishop T. Kitchin, 38 L.J. Q.B. 20, Contracts Bishop of Capetown v. Bishop of Natal, 38 L.J. E.C.58 ; L.E. 3 P.C. 1, Crown Grant 3 215 Colonial Law 29 . . . . 103 Bishop of Exeter v. Marshall, 37 L.J. C.P. 331 ; L.E. 3 E. & I. App. 1 7, Church 2 Bishop of Norwich v. Berney, 30 L.J. Eccl. 8 ; (on App. sub nom. Berney v. Bishop of Norwich) 36 L.J. Eccl. 10, Church 43 V. Pearse, 37 L.J. Eccl. 90 ; L.E. 2 A. & E. 281, Church 44 . Bishop Sumner v. Wix, 39 L.J. Eccl. 25 ; L.E. A. &E. 200, CAwrcA 39 . Bishop of Winchester v. Wix, 39 L.J. Eccl. 22 ; L.R. 3 A. & E. 19, Church 39 Bishop's Waltham Rail. Co.,- L.R. 2 Ch. 382, Bailway 46 . . . .507 . 192 16 589 . 573 137 481 636 61 117 337 267 19 577 237 324 ". 620 169 154 167 . 466 354 189 86 95 95 94 94 TABLE OF CASES. 659 Bissell V. Jones, 38 L.J. Q.B. 2 ; 9 B. & S. 884 ; L.E. 4 Q.B. 49, Compo. Deed 19 . 170 Black V. Jobling, 38 L.J. P. & M. 74; L.JP. ' 1 P. & D.-685, Pi-obate B 31 . . 477 . , Town Clerk of Brighton, v. Sackett, 10 B. & S. 639, Market 2 . . .353 ^ BlaokborDe v. Blackborne, 37 L.J. P. & M. 73 ; L.E. 1 P. & D. 563, Dimroe 26 . 229 Blackbume \. Blackburne, 36 L.J. P. & M. 88, IXvorce 121 {Alimony) . . . 238 BlackettT. Bates, 35 L.J. Ch. 324; L.E. 1 Ch. WJ , Specific Performance li . .564 Pr. in Eq.'E li {Appeal). . .449 Blackford v. Davis, L.E. 4 Ch. 304, Mortgage 41 (Costs ^ Allowances) . - . . 376 - Blacklock t. Grindle, 38 L.J. Ch. 247 ; L.E. 7 Eq. 215, Election 8 {Legatees ^ Next-of-kin) . 247 Blackmore v. London ard South-Western Kail. Co., 38 L.J. Ch. 19, lands Clauses Act 76 . . . . . 319 T. Yates, 36 L.J. Ex. 121 ; L.E. 2 Ex. 225, Bailway 33 . . . . 504 Blaekwell v. Crabb, 36 L.J. Ch. 504, Trade- Mark 5 . ... 583 Blaicklock v. Grindle, 38 L.J. Ch. 247; L.E. 7 Eq. 215, Election under Will 8 . .247 Blair, ex parte, in re Mackle, 39 L.J. Bankr. 45 ; L.E. 5 Ch. 482, Bankrvptcy 96 . 54 Blake, in the goods of, 35 L.J. P. & M. m. Probate li {Grant of Admon.) . . 476 Blake's Trusts, in re, 36 L.J. Ch. 747 ; L.E. 3 Eq. 799, Will, Consir. I 29 . . 624 Blakeley Ordnance Co., in re, Crejke's case, 38 L.J. Ch. 677; (L.J.G.) 39 L.J. Ch. 124; L.E. 5 Ch. 63, ComyawyE 120 137 • Lnmsden's case, L.E. 4 Ch. 31, Corn- pany E 63 . . . .129 ex parte Metropolitan and Provincial Bank, L.E. 8 Eq. 244, Company G 3 .160 , Needham's case, 36 L.J. Ch. 665 ; L.E. 4 Eq. 136, Com>™y E 41 . . .126 , ex parte New Zealand Barking Corpora- tion, 37 L.J. Ch. 418; L.E. 3 Ch. 154, Company G 37 {Dchcnture-holders) . . 164 , Stocken's case, 37 L.J. Ch. 5 ; L.E. 5 Eq. 6;' (L.J.C.) 37 L.J. Ch. 230 ; L.E. 3 Ch. il2, Company :E 119 . . . 137 ' Bland v. Bland, 35 L.J. P. & M. 104; L.E. 1 P. & b. 237, Divorce 64 . . . 233 r. Bland and Stormont, 37 L.J. P. & M. 74 ; L.E. 1 P. & D. 513, Divorce 71 . 234 Bleackley's case, in re Albert Life Assurance Co., 39 L'.J. Ch. 539 ; L.E. 9 Eq. 7^6, Com- pany G 52 . . . .167 Bleckley, in re, in re Exhall Coal Co.,36 B. 449, Company G 34 . . . . 1 64 Blencowe, ex parte, in re Blencowe, 35 L.J. Bankr. 18 ; L.E. 1 Ch. 393, Bankruptcy 23 45 Blithman, in re, 35 L.J. Ch. 255 ; 35 B. 219 ; L.E. 2 Eq. 23, Colonial Law 34 . .104 Blogg T. Johnson, 36 L.J. Ch. 869 ; L.E. 2 Ch. 225, Executor 27 . . .268 Blood; ex parte, in re International Life Assurance Society, 39 L.J. Ch. 295; L.E. 9 Eq. 316, Company G 24 . . . 163 Bloxam v. Metropolitan Eail. Co., L.E. 3 Ch. 337, Bailway Dividends, Addenda iO . 649 Bloxhara's case, in re Financial Insurance Co., 36 L.J. Ch. 687, Company's 60 {Witnesses) 155 Blumberg v. Eose, 35 L.J. Ex. 144 ; 4 H. & C. 311 ; L.E. 1 Ex. 232, Compo. Deed 20 .170 Blyth v. Carpenter, 36 L.J. Ch. 823 ; L.E. 2 Eq. 501, Mortgage, 36 . . . 375 Board of Works for Wandsworth v. Hall, 38 L.J. M.C. 69 ; L.E. 4 C.P. 85, Metropolis Building Acts 5 . . . . 365 Boardman v. Boardman, L.E. 1 P. & M. 233, Divorce 32 {Cruelty) . . .230 Divorce 7T {Witnesses) . . . 235 Boast V. Firth, 38 L.J. C.P. 1 ; fi.E. 4 C.P. 1, Apprentice 1 . . . .21 BoggT. Midland Eail. Co., 36 L.J. Ch. 440; L.E. 4 Eq. 310, Jurisdiction in Eq. 9 . 300 Bolingbroke v. Kerr, 35 L.J. Ex. 137; L.E. . 1^^.222, Executor 20 . . .267 BolcgBesi's ease, in re London and Medi- ^ terranean Bank, L.E. 5 Ch. 567, Company F 11 . . . . .150 Bolton V. Bolton, 39 L.J. Ex. 89 ; L.E. 5 Ex. 145, Will, Constr. I 1 0. . ' , . 621 T. Lancashire and Yorkshire Eail. Co., 35 L.J. C.P. 137 ; L.E. 1 C.P. 431, Stoppage in transitu 2 . . ... 576 Bolton's Lease, in re, 39 L.J. Ex. 51 ; L.E. 5 Ex. 82, Stamp 8 . . . .568 Bond T. Weston, 35 L.J. Q.B. 7; L.E. 1 Q^.'S. 1&9, Compo. Deed Ui. . ' . 183 Bone V. Whittle, 36 L.J. P. & M. 15 ; L.E. 1 P. & D. 249, Probate N 8 . . .486 Bonne Amelie, The, 35 L.J. Adm. 115; L.E. 1 A. & E. 19, Shipping's 1 . . . 554 Bonville v. Bonville, 35 B. 129, Partmr, 22 . 409 Bookham and Potter, in re, ex parte Eogers, 37 C.P. 276 ; L.E. 3 C.P. 490, Attorney 11 33 Booth V. Carter, L.E. 3 Eq. 757, Mortmain 11 . 377 V. Conlton, 39 L.J. Ch. 622 ; L.E. 5 Ch. 684, Annuity 6. . . . 19 v. Taylor, 35 L.J. Ex. 56 ; 4 H. &' C. 70;L.E. 1 Ex. 51, Pn ffiiiow 10 .439 Boreham v. Boreham, 35 L.J. P. & M. 49 ; L.E. 1 P. & D. 77, Divorce 21 . . 228 Bos V. Helsham, 36 L.J. Ex. 20 ; 4 H. & C. 646 ; L.E. 2 Ex. 72, Vendor ^ P. 5 . 599 Bos and Dubourcq, ex parte, in re General Co. for the Promotion of Land Credit, 39 L.J. Ch. 737; L.E. 5 Ch. 363, Company E 39 153 Bostock V. Floyer, 35 L.J. Ch. 23 ; 36 B. 603 ; L.E. 1 Eq. 26, Trust B 3 . .588 Bo.=ton V. Lelievre, 39 L.J. P.O. 17; L.E. 3 P.C. 187, Colony 7 ■ . ■ .98 Bouek V. Boiick, ^36 B. 643 ; L.E. 2 Eq. 19, PL in Eq. 7 {Multifariousness) . . 424 iboughey v. Eowbottom, 4 H. & C. 711, Ale- house 3 . . . . .17 Boulnois V. Mann, 35 L.J. Ex. 58 ; 4 H. & C. 9; L.E. 1 Ex. 28, Compo. Deed 45 . 175 Boulton T. Boulton, 37 L.J. P. & M. 19 ; L.E. 1 P. & D. 456, Probate K 14 . .484 V. Inland Eevenue, 39 L.J. Ex. 51 ; L.E. 5 Ex.- 52, Stamp 8- . . . .568 4p2 660 TABLE OE CA^ES. , PAGE Bourne v. Buckton, 35 L.J. Ch. 851, Pr. in Eq.FFl (Appeal staying Frcceedwigs) T. , 36 L.J. Oh. 792, Costs in Equity 3 {Petition). Boursot V. Savage, 35 L.J. Ch. 627 ; L.E. 2 Eq. 134, Vendor ^ Purchaser 36 . Baurton T. Williams, 39 L.J. Ch. 800 ; L.B. 6 Ch. 665; L.E. 9 Eq. 297, Mortgage, 16 Bouverie v. Maxwell, 36 L.J. P. & M. L.E. 1 P. & D. 272, Probate A 3 . BoviU T. Cowan, 39 L.J. Ch. 768; L.E. 5 Ch. 495, Proditction in Eq. 9 V. Crate, L.E. 1 Eq. 388, Patent 66 T. Knch, 39 L.J. C.P. 277; L.E. 5 C.P. 523, Patent 37 . V. Goodier, 36 L.J. Ch. 432 ; L.E. 1 Eq. 35; 35 B. 264, Patent 44 {Issues) . V. ,36 L.J. Ch. 174; 35 B. 264; L.E. 1 Eq. 35, Patent 47 . - — V. — ^, 36 L.J.'Ch. 360; 35 B. 427; L.E. 2 Eq. 196, Patent 50 {New Trial) . V. Hitchcock, 37 L.J. Ch. 233 ; L.E. 3 Ch. 417, Pr. in Eq. Y 6 {Issues) . V. Smith, L.E. 2 Eq. 469, Patent 65 . Bowden r. Allen, 39 L.J. C.P. 217, Ubel 11 . Bowen y. Brecon and Merthyr Eail. Co., ex Barte Howell-, 36 L.J. Ch. 344 ; L.E. 3 Eq. 541, i?aitoaj' 36 ' . V. European Bank, 35 L.J. Ex. 151 ; 4 H. & C. 398; L.E. 1 Ex. 261, Inter- pleader 1 . Bowers v. Bowers, 38 L.J. Ch. 596 ; (E.C. of App.) 39 L.J. Ch. 351 ; L.E. 5 Ch. 244, Will, Oonsir. M 12 . Bowes \'. Hope Mutual Life Assurance and Honesty Guarantee Society, 35 L.J. Ch. $74, Company's 13 ■ . Bowes-v. Law, 39 L.J. Ch. 483; L.E. 9 Eq, 636, Injunction 30 . Bowman v. Hodgson, 36 L.J. P. & M. 124 ; L.E. 1 P. & D. 362, Probate G 3 Bowron, Baily & Co., in re, ex parte Baily, 37 L.J. Ch. 256 ; (L.G.) 37 L.J. Ch. 670 ; L.E. 3 Ch. 592, Company E 17 . Bowyer t. Grifan, 39 L.J. Ch. 159 ; L.E. 9 Ch. 340, Costs m Eq. 17 . — ^- V. Woodman, ex parte Clarke, L.H. 3 Eq. ZIZ, Limitations, Stat, of 10 ■ . Box V. Barrett, L.E. 3 Eq. 244, Election 4 . 247 Boyd V. Boyd, 36 L.J. Ch. 877; L.E. 4 Eq. 306, Advancement 2 . V. Petrie, 37 L.J. Ch. 344 ; L.E. -3 Ch. 818, Production of Documents 14 . V. (No. 2), 39 L.J. Ch. 412 ; L.E. 10 Eq. 482, Mortgage 8 . 1 — ^v, Shorrock, 37 L.J. Ch. 144; L.E. -6 Eq. 72, Fixtures 5 . Boyer & Co. ex parte, in re Contract Corpora- tion, 36 L.J. Ch. 69 ; L.E. 2 Ch. 95, Com- pany E 52 . Boys, in re, Eedes v. Boys, ex parte Hop Planters' Co., 39 L.J. Ch. 665 ; L.E. 10 Eq. 467, Eoidence 30 Brabant v. Wilson, 35 L.J. Q.B. 49 ; L.E. 1 Q.B. 44, Copyhold 11 . 461 . 203 604 . 372 474 488 417 415 416 416 416 466 417 335 506 294 . 630, 150 288 481 124 204 338 16 489 371 264 . 128 245 194 406 188 694 583 678 168 151 342 . 568 64 622 Bracewell t. Griffiths and Griffiths v. Brace- well, 35 B. 43, Partnership 3 V. Williams, L.E. 2 C.P. 196, Contract 1 Braokenbury's Trusts, in re, 39 L.J. Ch. 635 L.E. 10 Eq. 46, Trust F 17. Bradbury v. Beeton, 39 L.J. Dh. 57, Trade- ' Mark 2 . Bradford v. Brownjohn, 37 L.J. Ch. 198; (L.JJ.) 38 L.J. Ch. 10; L.E. 3 Ch. 711, Tenant for Life 5 . Bradford Navigation Co., in re, 39 L.J. Ch. 161; (L.JJ.) ibid. 733; L.R. 5 Ch. 600, Company F 90 ( Opposing Petition). Company 'S 10 {Opposing Petition) Bradford Union v. Clerk of Peace for County of Wilts, 37 L.J. M.C. 129 ; 9 B. & S. 660 ; L.E. 3 di.B. 604, Lunatic 11. Bradlaugh v. Be Ein, 37 L.J. C.P. 146 ; L.E. 3 C.P. 286, Stamps 9 T (No. 2), 37 L.J. C.P. 318; Ex. Ch. 39 L.J. C.P. 254; L.E. 6 C.P. i7S, Bi/.l of Exchange 11. Bradley V. Cartwright, 36 L.J. C.P. 218; L.E, 2 C.P. 511, Will, Constr. I 15 T. Stelfox, in re Yates, 3 De G. J. & S. 402, Adininistration 30 . Brady, in re, ex parte Hilary, 37 L.J. Q.B. 296'; 9 B. & S. 481; L.E. 3 Q.B. 643, Attorney 26. ... . Bragington, in re, ex part^ Maude, L.E. 2 Ch. 550, Bankruptcy 48. . . . Bramble v. Moss, 37 L.J. C.P. 209 ; L.E. 3 C-P. 458, Compo. Deed 85 . Brampton and Longtown Eail. Co., in re, 39 L.J. Ch. 681 ; L.E. 10 Eq. 613, Railway 68. 511 Bramwell v. Eglintbn, 7 B. & S. 357 ; L,.E. 1 Q.B. 494, lankruptcy 64 . Brancker v. Carne, L.E. 2 Eq. 610, Pr. in Eq. PP 5 {Staying Proceedings) . - Brand v. Hammersmith and City Eail. Co., 35 L.J. Q.B. 53 ; 7 B. & S. 122 ; (Ex. Ch.) 36 L.J. Q.B. 139 ; 8 B. & S. 318; L.E. 2 Q.B. 223, Lands Clauses Act 24 Brandford v. Howard, 35 B. 613, Xarine In- , surance 41 . Brashier v. Wyatt, 37 L.J. Ch. 272, Pr. in Eq. E 8 {Withdrawal of Petition of Appeal) Braun v. Weller, 36 L.J. Ex. "lOO; L.E. 2 Ex. 183, Compo. Deed 83 . Braund v. Earl of Devon, 37 L.J. Ch. 463; L.E. 3 Ch. 800, Charity 16 , in re, 39 L.J. Ch. 384, Costs in Eg. 28 . Brayne's Purchase, in re^ Edwards v. Wickwar, 35 L.J. Ch. 48 ; L.R. 1 Eq. 68, F. # P. 4 . Breadalbane ease, The,Xampbell v. Campbell, L.R. 1 H.L. Sc. App. 182, Marriage 2 Breech-loading Armoury Co., in re, Calisher's case, 37 L.J. Ch. 208 ; L.E. 5 Eq. 214, Com- pany E 49 . in re, in re Merchants' Co., L.E. 4 Eq. 453, Company F 69. Wragg's case, L.R. 5 Eq. 284, Company, Liquidation Powerf, Addenda 17 . Bremner v. Bremner, 36 L.J. P. & M. 11 ; L.E. 1 P. & D. 264, Dherce 167 . . 243 8 35 48 180 50 461 312 \ 363 . 448 . 17 8.3 205 599 354 127 155 646 TABLE OF CASES. 661 Bremner v. Full, 35 L.J. C.P. 332 ; H. & E. 800; L.E. 1 C.P. 748, Chnrchwarden 10 . 88 Bremner, Sarah, ex parte, L.K. 1 P. & D. 254, Attorney, 47 (lAenfar Costs) 47 . .37 Brennard's Patent, in re, 3 De G. F. & J. 695, Patent 69 . . . .417 Brett V. Carmiehael, 35 L.J. Ch. 369 ; 3 B. 340,- Pr.mE(r.I'P6 . . . 461 V. Jaca^son, 88 L.J. C.P. 139 ; L.E. 4 C.P. 259, Bankruptcy/ 41 . . .47 T. Eobinson, Bristol Election Petition, 39 L. J. C.P. 265 ; L.E. 5 C.P. 503, Parlia- ment 7 ■ . . ■ -394 Brewer v. McGowen, Town Clerk of Bradford, 39 L.J. C.P. 30 ; L.E. 5 C.P. 239, Parlia- ment i7 . ., . . .400 Brickenden T. Williams, 38 L.J. Ch. 222; L.E. 4 Eq. 310, Power 32 . . . 435 Bridge V. Beadon, 36 L.J. Ch. 351; L.E. 3 Eq..646, Trust D 11 . . .591 Bridges v. Garrett, 38 L.J. C.P. 242 ; (Ex. Ch.) 39 L.J. C.P." 251 L.E. 5 C.P. 461, Copyhold 7 . • . • -193 Bridger's case, in re General Provident Assur- ance Society, 39 L.J. Ch. 478 ; L.E. 5 Ch. ^ 305, Company E 171 ■ • -145 Bridger's and Neill's case, in re Accidental and Marine Insurance Corporation, 38 L.J. Ch. 201 ; L.E. 4 Ch. 266, Company^ 36 . 126 Bridgewater Trustees v. Bootle-cura-Linacre Highways, 36 L.J. Q.B. 41 ; 7 B. & S. 348 and 943 ; L.E. 2 ft.B. 4, Bate 8 . .515 Bridport Old Brewery Co., in re, L.E. 2 Ch. 191, Company 'F 5 . . . .149 Company F 86 {Liquidator) . .168 Briggs, ex parte, in re Hop and Malt Exchange, and Warehouse Co., 35 L.J. Ch. 320; 35" B. 273 ; L.E. 1 Eq. 483, Company E 137, 139 140 V. Boss, 37 L.J. Q.B. 101 ; L.E. 3 Q.B. 26S, BUI of Sale 5 . . . .70 V. Jones, L.E. 10 Eq. 92, Mortgage 24 . 373 V. Oliver, 35 L.J. Ex. 163 ; 4 H. & C. i03, Negligence 2 . . . .381 Brighouse v. Margetson, 35 B. 303, Pr. in Eq. NN 1 . . . . .460 Bright V. Devenish, 36 L.J. C.P. 71 ; L.E. 2 C.B. 102, Parliament 59 . . .402 Brighton Arcade Co. v. Cowling, 37 L.J. C.P. 125 ; L.E. 3 C.P. 175, Cmnpany C 43 .114 Brighton Brewery Co., in re, Hunt's case, 37 L.J. Ch. 278, Company C 30 . .112 Brighton Club and Norfolk Hotel Co., in re, S5'B.20i, Company "F 2 . . .161 Brighton Hotel Co., in re, 37 L.J. Ch. 916; L.E. 6Eq. 339, Com^ffi«y F45 . .153 Brighton, t c, Eoads, Trustees of, v. Surveyors of Preston Parish, 39 L.J. M.C. 123; L.E. 5 Q.B. 146, Twmpike, 12 . . . 596 , Town Clerk of, v. Sackett, 1 B. & S. 639, Market 2 . . . . -363 Brinsley, in ex parte, in re Birmingham Bank- ing Co., 36 L.J. Ch. 150, Company's 64 . 154 Bristol Election Petition, Brett v. Eobinson, 39 L.J. C.P. 265 ; L.E. 5 C.P. 503, Parlia- s ment 7 394 . 193 613 45 63 PAGE Bristol and North Somerset Eail. Co., in re, 37 L.J. Ch. 851 ; L.E. 6 Eq. 448, Railway 59 . 610 Bristow V. Booth, 39 L.J. C.P. 47 ; L.E. 5 C.P. 80, Copyhold 6 V. Slcirrow, 39 L.J. Ch. 840; L.E. 10 Eq.l, Will, Constr.D 3 . Bristow, in re, ex parte Emmanuel, 37 L.J. Bankr. 9 ; L.E. 3 Ch.,247, Ban&cy. 21 British and American Steam Navigation Co., in re, Pearse's Claim, L.E. 8 Eq. 606, Bill of Exchdnge 7 .... in re. Ward's case, L.E. 10 Eq. 659, Com- pany {no Notice of Allotment), Addenda 13 . 646 British and Foreign Cork Co., in re, Leif-' child's case, L.E. 1 Eq. 231, Company C 46 114 Compariy'E 31 {Conson. of Paid-tip 8h.) 125 British Columbia Saw Mill Co. v. Nettleship, 37 L.J. C.P. 236 ; L.E. 3 C.P. 499, Ship- ping F . . . . British Equitable' Insurance Co. v. Great Western Eail. Co., 38 L.J. Ch. 132; (L.JJ.) ibid. 31 4, /nsarance 5 Briton Medical and General Life Assurance Association, ex parte, in re Accidental and Marine Insurance Corporation, 39 L.J. Ch. 686 ; L.R. 5 Ch. 428, Company E 45 Britt V. Eobinson, 39 L.J. C.P. 265 ; L.E. 5 C.P. 603, Bristol Election Petition, Parlia- ment 7 .... . Brittlebank v. Goodwin, 37 L.J. Ch. 377 ; L.E. 5 Eq. 465, Trust B 4 Broad V. Fowler, Penryn Election Petition, 39 L.J. C.P. 789; L.E. 5 C.P. 172, Parliament , C 14 -. . . I Broadhouse,inre, exparteBroadhouse, 36 L.J. Banlcr. 29; L.E. 2 Ch. 655, Bankr. 101 . Broadridge, in re, ex parte Cyrus, L.E. 5 Ch. 176, Bankruptcy 25 . . . Brodie, in re, ex parte Peake, L.E. 2 Ch. 453, Bankruptcy 49 {Proof) . . " . Bromley v. Bninton, 37 L.J. Ch. 902 ; L.E. 6:Eq^. 275, Bill of Exchange 12 . V. Kelly, 39 L.J. "Ch. 274, Trust A 10 . Brook V. Badley, 36 L.J. Ch. 741 ; (L.C.) 37 L.J. Ch. 884 ; L.E. 3 Ch. 672, Mortmain 2 .. V. Harwood, 37 L.J. Ch. 209; L.E. 3 Ch 225, Debtor ^ Creditor 2 Brooke v. Gladstone, L.E. 9 Eq. 132, Produc- tion of Documents 25 V. Haymes, L.E. 6 Eq. 26, Executor 26, 32 258 Brookes v. Pearce, 4 H. & C. 358, Contract 4 . 189 Brookman's Trusts, 38 L.J. Ch. 685; (L.tT.G.) 39 L.J. Ch. 138; L.E. 6 Cb. 182, Marriage Settlement 14 ... . Brooks V. Blain, 39 L.J. C.P. 1, Malicious Prosecution 3 V. Jennings, H. & E. 414 ; L.E. 1 C.P. 476, Composition Deed 33 . V. Sutton , 37 L.J. Ch. 311 ; L.E. 6 Eq. 361, PI. in Eq. 13 . Brooksbank's Trust Deed, in re, ex parte Atkinson, 39 L.J. Bankr. 10 ; L.E. 9 Eq. 736, Composition Deed 10 h . Broomfield v. Southern Insurance Co., 39 L.J. Ex. 186; L.E. 6 Ex. 192, Marine Ins. 31 . 648 293 127 394 . 688 396 55 45 48 64 587 .376 219 490 367 . 261 P. . 172 425 182 351 662 ■TABLE OP CASES. PAGE EroUierton's Patent,iiire,re Mitchell's Patent, L.E. 2 Ch. 343, Patent 17 . . -412 Proiifih r. fJomfray, 37 L.J. M.C. 177; 9 B. 6 S.'492 ; L.B. 3 Q.B. 771, Mine 13 . 368 Brougham, Lord, v. Cauvin, 37 L.J. Ch. 691, Frodvction 23 . . . .490 Brown, in re, 36 L.J. Ch. 842 ; L.E. 4 Eq. 464, Attorniy 39 . . . .36 V. Adams, 39 L.J. Ch. 67 ; L.R. 4 Ch. 764, Trust B 10 . . . .588 V. Batetnan, 36 L.J. C.P. 134; L.E. 2 C.P. 272, Judgment 4 .- . . 296 V. Brown, 38 L.J. Ch. 163 ; L.E. 7 Eq. \%5, Injunction Zl . V. , L.E. 2 Eq. 481, Election 3 V , 35 L.J. ~P. & M. 13; L.E. 1 P. & D. 46, Divorce 31 . . V , 38 L.J. P. & M. 78; L.E. 1 P. & D. 720, Proiate G 5 . '■ v. Bussell or Eussell, 37 I.J. M.C. 65 ; 9 B. & S. 1 ; L.B. 3 Q.B. 251, Nuisance 12 T. Cocking, 37 L.J. Q.B. 250; 9 B. & S. 503 ; L.E. 3 Q.B. 672, Ejectment 2 T. Fenwick, 35 L.J. Ch. 241, Lands CI Act 55 . V. Gellatly, L.E. 2 Ch. 751, Tinant for Lifell, 12 . T. Oakshott, 38 L.J. Ch. 717; L.E. 3 Ch. 428, Pr. in Eq. KK 6 . Pr. inEq.'Ed . v. Tanner, 37 L.J. Ch. 923 ; L.E. 3 Ch. 597, Shipping Ml. Brown's Settlement, in re, 39 L.J. Ch. 845 ; L.E. 10 Eq. 349, Power 39 Trusts, in re, 37 L.J. Ch. 171; L.E. 5Eq. 88, Trust D 12 . . Trusts, in re, L.E. 1 Eq. 74, Power 13 . Browne's Will, in re, 38 L.J. Ch.-316; L.E. 7 Eq. 231, Marriage Setthment 19 . Brownson v. Lawrance, 37 L.J. Ch. 351; L.E. 6 Eq. 1, Administration 16 . Bruce V. Garden, 39 L.J. Ch. 334 ; L.E. 5 Ch.__32, Debtor ^ Creditor 6 V. Presbytery of Deer, L.E. 1 Sc. App. 96, Will, Constr. Gil BrumfltT. Eoherts, 39 L.J. C.P. 95; L.E. 5 G.F.22i, Parliament 23- . Brundritt, ex parte, in re Caldwell, L.R. 3 Ch. 26, Bankruptcy 85 . . . .53 Brunskillv. Watson, 37 L.J. M.C. 103; L.E. 3 Q.B. 418, Turnpike 2 . . .595 Bruton Turnpike Trustees v. Wincanton High- way Board, 39 L.J. M.C. 155; L.E. 6 Q.B. 437, Turnpike 8 . . . .695 Bryan v. Twigg, 36 L.J. Ch. 45 ; (L. J.E.) 37 L.J. CJi. 249 ; L.E. 3 Ch. 183, Tenant in common 3 . . . . . 680 Bryant v. Eoot, 36 L.J. Q.B. 65 ; 7 B. & S. 725; (Ex. Ch.) 37 L.J. Q.B. 217; 9 B. & S. 444; L.E. 3 Q.B. 497, Church 18 . 89 Bryden v. Willett, L.E. 7 Eq. 472, Will L fl 626 Buhb T. Yplverton, 39 L.J. Ch. 428 ; L.E. 9 Eq. 471, Pond, Consideration, Addenda 9 . 646 , V. Yelverton, ex parte Hastings, 40 L.J. Ch. 38 ; L.E. 10 Eq. 465, Injunction 43 . 290 290 247 230 481 389 246 . 317 :>r . 679 46,0 448 652 437 692 433 368 220 617 397 Buccleueh, Duke of, v. Metropolitan 'Board of Works, 37 L.J. Ex. 177; L.E. 3 Ex. 306; {Ex. Ch.) 39 L.J. Ex. 130; L.E. 5 Ex. 221, Arbitration 5 . . ■ • Lands Clauses Act 21 . V. Wakefield, 39 L.J. Ch. 441 ; L.E. 4 E. & I. App. 377, Inclosure 3 Buehan, ex parte, in re Joint Stock-Discount Co., 36 L.J. Ch. 150, Company F 54 Buck V. Hurst, L.E. 1 C.P. 297, Eiidence 6 . V. Eobson, 39 L.J. Ch. 821 ; L.E. 10 Eq. 629, Company E 58 . Buckland v. Papillon, 36 L J. Ch. 387 ; (L.C.) 36 L.J. Ch. 81 ; 35 B." 281 ; L.E. 2 Ch. 67 Bankruptcy 69 . V. Tomkinson, Kent v. Tompkinson, 36 L.J. C.P. 224 n. ; L.E. 2 C.P. 602, Attach- ment 5 . . . Buckle V. Knoop, 36 L.J. Ex'. 49 ; (Ex. Ch.) 36 L.J. Ex. 223 ; L.E. 2 Ex. 333, Ship- ping H 1 2 . Buckley v. Jackson, L.E. 3 Ex. 135, Bill of Exchange 9. . . • . Buckmaster v." Buckmaster, 38 L.J. P. & M. ,713, Divorce 42 (Desertion). Budenberg v. Eoberts, 35 L.J. M.C. 235; H. & E. 836 ; L.E. 2 C.P. 292, Revenue 1 . Bugg, ex parte, in re East of England Banking Co., 35 L.J. Ch. 43, Company E 157 Bulkeley v. Schutz, L.E. 3 P.C. 196, Privy Council 9 . Bullar, in the goods of, 39 L.J. P. & M. 26, Probate B 23 Bullen V. Sharp, 35 L.J. C.P. 105 ; H. & E. 117; L.E. 1 C.P. 86, Partnership 1 Bulmer v. Hunter, 38 L.J. Ch. 643 ; L.E. 8 Eq. 46, Marriage Settliment 1 Bulteel V. Plummer, 39 L.J. Ch. 805 ; L.E. 8 Eq. 685 ; L.E. 7 Ch. 160, Power 12 Bunn V. Pettinger, 35 L.J. Ch. 389 ; 35 B. 321 ; L.E. 1 Eq. 510, Power 15 . Bunting's case, Chorlton v. Johnson, 38 L.J. C.P. 37 ; L.E. 4 C.P. 426, Parliament J) 2^. Burbidge \. Burbidge, 37 L.J. Ch. 47, Le- gacy 6 .... . Burdick v. Garrick, 39 L.J. Ch. 661 ; L.E. 5 Ch. 453, Practice inEq.Y 1 Principal and Agent 15 . V , 39 L.J. Ch. 369 ; L.E. 5 Ch. 233, Parties 5 {Feme Covert) Burk V. Dublin 'Trtink Connecting Eail. Co., Miller's case, 37 L.J. Q.B. 50 ; L.E. 3 Q.B. 47, Railway 40. . . . Burls V. Burls, 36 L.J. P. & M. 125 ; L.E. 1 C.P. 472, Probate H 6 {Lost Will) . Burmester v. Moxon, 35 B. 310, Pr. in Eq. BB 4 {Decrees) .... Burmono v. Thakoor, 37 L.J. P.C. 7, Privy Council 17. Burrell, in re, Burrell v. Smith, 38 L.J. Ch. 382 ; L.R. 7 Eq. 399, Mortgage 33. in ie, y (No. 2), 39 L.J. Ch. 544; L.E. 9 Eq. i3^, Administration 7 Burrows v. Burrows, L.E, 1 P & D. 654, Di- vorce 83 (Alimony) . . . 24 311 281 154 250 128 51 30 549 64 . 231 523 . 143 . 471 ■ 477 406 355 433 433 S98 326 454 467 404 506 482 455 473 375 235 TABLE OF CASES. 663 Burrows y. March ©as and Coke Co., 39 L.J. Ex. 33 ; L.E. 6 Ex. 67, Negligence 36 . 387 Burton t. Lord Barnley, L.E. 8 Eq. 576 ■«., Attorney 9 {Discovery) . . .33 . V. Pinkerton, 36 L.J. Ex. 137 ; L.E. U Ex. 340, Shipping U 1 . . .559 Bushell V. Blenkhorn, 35 L.J. P. & M. 75 ; L.E. 1 P. & D. 89, Probate K 18 . . 485 Butcher v. Henderson, 37 L.J. Q.B. 133 ; 9 B. & S, 403 ; L.E. 3 Q.B. 335, Costs at Law 7 {Plaintiff's Costs) . . .199 Butler, in re, Eigby t. Dublin Trunk Connect- ing Eail. Co., 36 L.J. C.P, 282; L.E. 2 C.P. 586, Railway 39 . . . 506 in re, L.E. 1 Ch. 607, Lunatic 10 . 342 T. Carter, 37 L.J. Ch. 270 ; L.E. 6 Eq. 276, Trustee B 2 . . . .587 T. Cumpston, 38 L.J. Ch. 36; L.E. 7 Eq. 16, Trustee D 9. . . 591 T. Gray, 39 L.J. Ch. 291 ; L.E. 5 Ch. 26, Will, Constr. D 2 . . .613 WUl, Constr. I 18 . . . 622 : T. Knight, 36 L.J. Ex. 66 ; L.E. 2 Ex. 109, Attorney 18 . . . .34 Butt V. Imperial Gas Light and Coke Co., L.E. 2 Ch. 158, Lease 12 . . .325 Button V. Thompson, 38 L.J. C.P. 225 ; L.E. 4 C.P. 330, Shipping V 2 . . .569 Buvelot V. MiUs, 35 L.J. Q.B. 3; L.E. 1 Q.B. lOi, Compo. Deed 86 . . .180 Buxton V. North-Eastern Eail. Co., 37 L.J. Q.B. 268; 9 B. & S. 824; L.E. 3 Q.B. 649, Railway 64 . . . .509 Bwlch y Plwm Lead Miijing Co. v. Baynes, 36 L.J. Ex. 183 ; LlE. 2 Ex. 324, Company K H2 {Prospectusf Variance) . .141 Byrne t. Mercantile Assurance Co., 4 H. & C. 506, Marine Insur. 12 . . .348 ex parte, in re Leighton, 35 L.J. Bankr. Z;'J^.'&.lCh.ZZl, Bankruptcy IQ^ . 564 Cachar Co. in re, ex parte Lawrence. 36 L.J. ^Gh. 490; L.E. 2 Ch. 412, Company 2i 144 . 141 C— T. C , 38 L.J. P. & M. 37; L.E. 1 P. & D. 640, Divorce 4 . . .226 Cadhury v. Smith, L.E. 9 Eq. 37, Mortmain 3.376 Executor 25 . . 2,58 Cadge,' in the goods of, 37 L.J. P. & M. 15 ; L.E. 1 P. & D. 643, WUl, Formalities 45 . 641 Cairncross v. "Willis, -38 L.J. Ex. 87, Compo. Deed 9 169 Calabar, The, L.E. 2 P.C. 238, Ship. Q 14 . 557 CaleraftT. Thompson, 36 B. 689, Injunction 40 290 Caldwell v. Fellowes, 39 L.J. Ch. 618; L.E. 9 Eq. 410, Marriage Settlement 20 . ' 358 Caldwell, in re, ex parte Brundrit, L.E. 3 Ch. K,Ban!cruptcyS5 . . . .63 Calisher v. BischofFsheim,^9 L.J. Q.B. 181; L.E. 6 Q.B. U9, Contract 2 . .188 Calisher's case, in re Breech Loading Armoury Co., 37 L.J. Ch. 208; L.E. 8 Eq. 214, \ Company TSi id . . . .127 Callaghan v. Dolwin, 38 L.J. M.C. 110 ; L.E. 6 C.P. 288, Frimdly Society 14 . . 274 Calne Eail. Co., in re, L.E. 9 Eq. 658, Judg- inent 9 {Charge on Land) . . . 297 Calthrop, in re, 37 L.J. Bankr., 17; L.E. 3 ' Ch. 252, Bankruptcy 22 . . .45- Cambrian Eailways Co.'s Scheme, in re, 37 L.J. Ch. 409 ;L.E. 3 Ch. 278, Railway 58 . 510 Cambrian Steam Packet Co., ex parte, in re Trent and Humber, Co., 37 L.J. Ch. 604 ; L.E. 6 Eq. 396 ; (on App.) 38 L.J. Ch. 38 ; L.E. 4 Ch. 112, Company G 20 . . 162 Cambridge Eailway Co., in re, L.E. 5 Eq. 413, Laiids Clauses Act 83 . . . 320 Campbell v. Attorney-General, 36 L.J. Ch.' 600; L.E. 2 Ch. 671, Pr. inEci.WW 5 . 463 V. Baihbridge, 37 L.J. Ch. 634 ; L.E. "6 Eq. 269, Marriage Settlement 17 . . 367 v. Campbell, 36 L.J. Ch. 241 ; L.E. 1 Eq. 383, Marriage Settlement 25 . . 358 T. , The Breadalbane case, L.E. 1 Sc. App. 182, Marriage 2 . . .354 V. Dalhousie, Earl of, L.E. 1 Sc. App. 259, Scotch Law 14 . . . 532 V. Joyce, L.E.2 Eq. 377, Pr.in. Eq.GI . 446 V. Mayor and Corporation of Liverpool, L.E. 9 Eq. 579, Burial'i . . .74 Lands Clauses Act 4 . . . 309 , ex parte, in re Cathcart, L.E. 5 Ch. 703, Attorney 10 . . . .33 Statute 9. . . . . 671 , Executors of Johni v. Leith Police Com- missioners, L.E.-2 Sc. App. 1, Public Health Act 18 . . . . , ■ 4D6 Canadian Native Oil Co., Fox's case, 37 L.J. Ch. 267 ; L.E. 5 Eq. 1 18, Company E 150 . 142 Cane's Trusts, in re, 36 L.J. Ch. 744, Ad- vancement 1 . . . .15 Canaan, ex parte, in re Agra and Masterman's Bank, 38 L.J. Ch. 165 ; L.E. 7 Eq. 102, Company 'P 7 S {Liquidator) , . 157 Canoya, I'he, L.E. 1 A. & E. 54, Ship. T, 3 . 568 Capella, Cargo ex, L.E. 1 A. & E. 366, ^hip- pingT 9 . . . . ■ . 658 Cape Town, Bishop of, v. Bishop of Natal, 38 L.J. P.C. 58; L.E. 3 P.C. 1, Colonial Law 29 {Natal) . . . .103 Crown Grants 3 . . . .216 Capper's case, in re China Steamship and Labnan Coal Co., L.E. 3 Ch. 458, Company E 61 {nom. Mann's case) . . . 129 Capps V. Capps, L.E. 4 Ch. 1, Pr. in Eq. 1 1 16 {Revivor) .... 649 Cardell v. Hawke, L.E. 6 Eq. 464, Pr. in Eq. I 2 {Chambers) . . .460 Cardiff Preserved Coal and Coke Co. v. Norton, 36 L.J. Ch. 646 ; (L.C.) 36 L.J. Ch. 461 ; L.E. 2 Ch. 406, Company G 64 .167 Cardigan v. Curzon-Howe, L.E. 9 Eq. 358, Will, Constr. I 30 . , . . .624 Cardwick v. Wright, 35 B. 13^, Principal ^ Surety 9 . . . . .469 Carew v. Duckworth, 38 L.J. Ex. 149 ; L.E. i 'Ex. 313, Bill of Exchange 20 . . 65 Carington, Lord, v. Wycombe Eail. Co., 37 L.J. Oh. 213 ; L.E. 3 Ch. 377, Lmuk Clauses Act 75 . . . .318 664 TABLE OF CASES. Carlisle v. "Whaley, L.E. 2 E. & I. App. 391, Pleading at Law 2 . . . . 420 Pleading at Law 9 . ... 421 Carlisle, Mayor, &c., of, v. "Graham, 38 L.J. ' Ex. 226 ; L.E. 4 Ex. 361, Fishery 1 263 Carlton v. Thompson, L.E. 1 Se. App. 232, Scotch, Law », IS . . . 53i?, 333 Came, ex parte, in, re Whitford, L.E'. 3 Ch. 463, Compo. Seed 70 . . . 177 Carr v. Benson, L.E. 3 Ch. 524, Mines 2 . 367 V. Lambert, 34 L.J. Ex. 66 ; 3 H. & C. 499 ; (on App.) 35 L.J. Ex. 121 ; 4 H. & C. 257 ; L.E. 1 Ex. 168, Common 1 . 105 V. Livingston, 35 B. 41, Frauds, Stat- ute of 8 . ._ . , .269 V. Stringer, 37 L.J. M.C. 120 ; 9 B. & S. 238; L.E. 3 Q.B. 433, Weights and Measures . . . , .610 v. Wallaehian Petioleum Co., 35 L.J. C.P. 314; (Ex. Ch.) 36 L.J. C.P. 236 ; H. & E.-787 ; L.E. 2 C.P. 468, Shipping D 2 . 545 Carr, Mary, in the goods of, L.E. 1 P. & M. 291, Probate B 13 {Next-of-kin) . 476 Carrick v. Ford,. 38 L.J. Ch. 671 ; L.E. 4 Ch. 247, Baron and Feme 28 . . .60 V. Miller, L.E. 1 Se. App. 356, Scotch Law 15 . . . . .632 Carrolli an^ Haggard's Claim, in re Anglo- Greek Steam, &c. Co., L.E. 4 Ch. 174, Company, Set-off, Addenda 15 . . 646 Carron Co. Y. Hunter, L.E. 1 Sc. App. 362, Legacy 9 . . . ,327 Carrow v. Ferrior, Dunn r. Ferrior, in re Ferrior, L.E. 3 Ch. 17'5, Pr. m i?^. H H 3 . 457 V , in re Ferrior, 37 L.J. Ch. 569 ; L.E. 3 Ch. 719, Attorney 31 . . 3o Lunatic 3 . ' . . .341 Pr. in Eq.0 1 . . . . 451 Injunction 49 . . . .291 V. , L.E. 8 Eq. 218, Pr. in Eq.01 . 448 T. , 37 L.J. Ch. 849, Pr. in Eq.C5 , 446 Carter, in re. Ex parte Wood, 35 L.J. Bkcy. 34 L.E. 1 Ch. 170, Banlcrioptcy 1 . .42 -v. Carter, 39 L.J. Ch. 268; L,E. 8. Eq. 551, Marriage Settlement 22 . . 358 V. Williams, 39 L.J. Ch. 560 ; L.E. 9 Eq. 678, Injunction 28 . . . 288 Cartwright t. Forman, 7B.& S. 243, Mines 3 . 367 V. Philpott, The JefF. Davis, L.E. 2 P.O. 17, 238, Admiralty C 27 . .14 Shipping M 9 . . . 554 Gary v. Dawson, 38 L.J. Q.B. 300; 10 B. & S. 663 : L.E. 4 Q.B. 568. Banl-niptc// 43 . 47 Case V. Storey, 38 L.J. M.C. 113; L.E. 4 Ex. 319, Hackney Carriage 1 . .276 Casmore, in the goods of, 38 L.J. P. & M. 54 ; L.E. 1 P.&D. 653, Will^Formalities 3 J 640 Cass V. Spurr, 39 L.J. Q.B, 249 ; L.E, 5 Q.B. 656, Parties 2 , . . .403 Cassanova v. The Queen, 36 L.J. P.C. 3 ; L.E. 1 P.O. 115, ^c!mira% A 1 . . 8 Castellan r. Hobson, 39 L.J. Ch. 490 ; L.E. 10 Eq. 47, Stock Exchange 16 . . 675 Castello'a case, in re. Continental Bank Cor- poration, L.E. 8 Eq. 501, Company E 67 . 129 546 66 566 554 33 671 13 657 269 270 Castle V. Playford, 39 L.J. Ex. 150 ; L.E. 5 Ex. 165, Shipping D 8 . v. Wilkinson; 39 L.J. Ch. 843 ; L.E. 5 Ch. 534, Baron # Feme 1 . Specific Performance 23 Castrique v. Imrie, 39 L.J. C.P. 350 ; L.E, 4 E. & I. App. 414, Shipping M 7 . Cathcart, The, L.E. 1 A. & E. 314, Ship. M 5 653 Cathcart, in re, ex parte Campbell, L.E. 6 Ch. 703, Attorney 10 . . . Statute 9 . Catherine Maria, The, L.E. 1 A. & E. 53, Admiralty C 13 {Collision) . Cato, The, 35 L.J. Adm. 116, Shipping T 1 . Caton v. Caton, 35 L.J. Ch. 292 ; (H.L.) 36 L.J. Ch. 886 ; L.E. 2 E. & I. App. 127, Frauds, Statute of i . Frauds, Statute of 16 . -T. Coles, 36 L.J. Ch. 836; L.E. 1 Eq. 581 , Administration 2 Catt V. Tourle, 38 L.J. Ch. 401; (L.JJ.) ibid. 666 ; L.E. 4 Ch. 654, Covenant 4 Catterall v. Hindle, 35 L.J. C.P. 161 ; H. & E, 267 ; L.E. 2 C.P. 368, Principal^- Agent 2 464 Cayell V. Prince, 35 L.J. Ex. 162; 4 H. & C. 368 ; L.E. 1 Ex. 246, PI. at Law 15 Cavendish v. Cavendish and Eochefou- cauld, 38 L.'J. P. & M. 13, Divorce 61 Cay ley V. Walpole, 39 L.J. Ch, 609, Specific Performance 1 . . . . Cefu Cilcen Mining Co., in re, Edgwortii's case, 38 L.J. Ch. 78 ; L.E. 7 Eq. 88, Com-- pany C 10 . . . . .108 Central Eail. Co. of Venezuela v. Kisch, 36 L.J. Ch. 849; L.E. 2'TL. & I. App. 99, Company E 128 .... Com-pany E 189 . Ohadwick v. Marsden, 36 L.J. Ex. 177; L.E. 2 Ex. 285, Lease 1 . . ' . V. Turner, 36 L.J. Ch. 349 ; L.E. 1 ,Ch. 310, Registration 2 . Chamberlain, in the goods of, 36 L.J. P. & M. 52 ; L.E. 1 P. & D. 310, Prohate K 9 Chambers v. Chambers, 39 L.J. P. & M. 56, Divorce 100 . . ' . V.Davidson, 36 L.J. P.C. 17; L.E. 1 P.C. 296, West Indian Estates Champneys v. Arrowsmith, 36 L.J. C.P. 265 ; (Ex. Ch.) 37 L.J. C.P. 22 ; L.E. 3 C.P. 107, Burial 2. Ghaninel, ex parte, in re Nicholson, 3 De G-. i\ & J. 747, Bankruptcy 73 . - . Chaplin, in re, 36 L.J, P. & M. 49 ; L.E. 1 P. & D. 328, Legitimacy Declaration Act 2 . 333 -- — ', 36 L.J. P. & M. 90, Legitimacy Declar- ation Act 3 . Cliapman v. Brown, 36 L.J. Ch. 315, Pr. in % B B 9 V. Chapman, L.E. 9 Eq. 276, Attorney 16. V. Gwyther, 35 L.J. Q.B. 142; 7 B. & S. 417 ; L.E. 1 Q.B. 463, Contract 15 — — . V. Jones, 38 L.J. Ex. 169 ; L.E. 4 Ex. 273, Church 23 . V. Shepherd, 36 L.J. C.P. 113; L.E. 2 C.P. 228, Stock Exchange 7 . .573 . 211 422- 233 562. 139 148 323 . 522 484 236 610 74 52 . 333 455 33 191 90 TABLE OF CASES. 665 Chapman's case, in re General International Agency Co. L.E. 2 Eq. 667, Company El. 121 , in re Greneral EpUing Stock Co., L.E. 1 Eq. 346, Company G 65 . . .167 Chapman and Barker's case, in re Imperial Mercantile Credit ^Association, L.B. 3 Eq. 361, Company E 161 . , . 143 Chappell, in the goods of, 37 L.J. P. & M. • 32, Executor 5 {According to Tenor) . 255 Chard t. Cose, 35 B. 191, Pr. in Eq. T T 2 . 462 Charity Commissioners for England & Wales, Tamworth School case, 37 L.J. Ch. 473 ; L.E. 3 Ch. 543, Chari^ 3 . . .83 Charles v. Charles, 36 L.J. P. & M. 17 ; L.E. 1 P. & D. 260, Divorce 1 . . .225 Charles Amelia, The, 38 L.J. Adm. 17 ; L.E. 2 A. & E. 330, Shipping's, 19 . . 648 Charlton v. Earl of Durham, 38 L.J. Ch. 183 ; L.R. 4 Ch. 433, Executor 14. . 256 Charras t. Pickering, 39 L.J. Ch. 190, Pr. in Eq.'L'Li . . . . 460 , Chatham Extra Local Board of Health v. Rochester Paving Commissioners, 35 L.J. M.C. 81; L.E. 1 Q.B. 24, Turnpike 9 595 Chatt's case, in re London Marine Insurance Co., L.E. 8 Eq. 176, Friendly Society, Addenda 26 . . . . . 647 Chatterton v. Thomas, 36 L.J. Ch. 692, Pr. inEq.CS. . . . . 446 Pr. in Eq. 9 . . . . 461 Chawner's WiU, in re, 38 L.J. Ch. 726 ; L.E. 8 Eq. 669, Trustee D 7 . . .591 Cheeseborough, in re, ex parte Ackroyd, 3 ' De G. F. & J. 727, Bankcy. Appropriation, Addenda 7 .... 645 Cheesewi-ight r. Thorn, 38 L.J. Ch. 615, County Court 32 . , . . 210 Cheesman t. Price, 35 B. 49, Partnership 5 . 40j5 Cheltenham and Swansea Eail. Carriage Co. in re, 38 L.J. Ch. 330 ; L.E. 8 Eq. 580, Pr. inEq.OZ . . . . .451 Cherry and McDougall v. Colonial Bank of Australia, 38 L.J. P.C. 49; L.E. 3 P.O. 24, Company C 4 {Principal ^ Agent) . .108 Chetah, The, 38 L.J. Adm. 1 ; L.E. 2 P.C. •20o, Admiralty A 26 . . .11 Chetham v. Hoare, 39 L.J. Ch. 376 ; L.E. 9 Eq. 571, Limitations, Stat, of 13 . 338 Chetwynd v. Chetwynd, 35 L.J. P. & M. 21 ; L.E. 1 P. & D. 39, Divorce 99' . ■ .236 Chichester- v. Marquis of Donegal, 39 L.J. Ch. 694; L.E. 6 Ch. 497, Production 22 . 490 T. , L.E. 4 Ch. 416, Pr. in Kq.Sl. 452 Chichester.Lord John,v. Coventry, 36L.J. Ch. 673 ; L.E. 2 E. & I. App. 71, Marr. Sett. 28 358 Child V. Mann, L.E. 3 Eq. 806, Interpleader 5 . 296 China Steamship and Labuan Coal Co., in re, Capper's case, L.E. 3 Ch. 458, Company E 61 (nom. Mann's case) . . . 121 , Dawe's case, 37 L.J. Ch. 901 ; L.E. 6 Eq. 232, Company F 7 . . .149 , Dawe's ease (No. 2), 38 L.J. Ch. 512, Company E 65 {Calls) . . ', 128 , Drummond's ease, L.E. 4 Ch. 772, Com- pany 'E i?i {Paid-up Shares) » . 126 DiGBST, 1866-70. 199 WUl, 30 150 623 China Steamship -and Labuan Coal Co., in re, Financial Corporation," vi Price, L.E. 4 C.P. 155, Attachment 3 . Mackenzie's case, 38 L.J.. Ch. L.E. 7 Eq. 240, Company^ 9 Cholmleyy. Strickland, 39 L.J. Ch. 814, Construction 122 . Cholwill, in the goods of, 35 L.J. P. & M. 75 ; L.E. 1 P. & D. 192, Probate C 7 Chorlton V. Johnson, Bunting's ease, 38 L.J. C.P. 37 ; L.E. 4 C.P. i26. Parliament 29 . V. Kissler,' L.E. 4 C.P. 397, Parlia- ment 20 . ■ T , Eee's case, 38 L.J. C.P. 39 ; L.E. 4 C.P. 400, Parliament 55 V. Lings, 38 L.J. C.P. 25 ; L.E. 4 C.P, 374, Parliament 49. . . . Christ Church, in re, L.E. 1 Ch. 526, Crown 2 . Christie v. Commissioners of Inland Eevenue, 36 L.J. Ex. 11; 4.H. & C. 664; L.E. 2 Ex. 46, Stamp 2 . V. Gosling, 36 L.J; Ch. 667, Will, Con- struction E 6 . . , . . Chubb V. Griffiths, 35 B. 127, Costs in Eg. 18 .' 204 T. Stretch, 39 L.J. Ch. 329; L.E. 9 Eq. 556, Baron ^ Feme 39 . Churchill v. Churchill, 37 L.J. Ch. 92 ; L.E. 5 Eq. 44, Election 5. . . . Power 30. -^ v , 37 L.J. P. & M. 41 ; L.E. 1 P. 6 D. 485, Divorce 138 . Churchward v. Coleman, 36 L.J. Q.B. 57 ; 7 B. & S. 843 ; L.E. 2 Q.B. 18, Pr. at Law 26. V. The Queen, L.E. 1 Q.B. 173, Pr. at Law 33 {Bight to begin) Contract 1 4 ( Carriage of Mails) . Churton v. Frewen, 35 L.J. Ch. 97 ; L.E. 1 Eq. 238, Pr. in Eq. D 2 . V (No. 2), 3^ L.J. Ch. 692 ; L.E. 2 Eq. 634, Church 22 . . . V (No. 3), 36 L.J. Ch. 660,Costs in Eq. 30 {Taxation) .... Cilfoden Benefit Building Society, in re, L.E, 3 Ch. 462, Company F 70 {Liquidator) City Bank v. Luckie, L.E. 5 Ch. 773, Bill of Exchange 36 City Bank's case, ex parte M'Kenna, In re Lawrence, 3 De G. F.& J. 629, Bankings. ex parte, in re General Estates Co., L.E. 3 Ch. 758, Company C 36 . City of Antwerp, the, and the Freiderich In- man, v. Beck, 37 L.J. Adm. 25; L.E. 2 P.C. 75, Admiralty B 1 {Pleadings). Shipping E 2 . City of Dublin Steam Packet' Co. v. Thomp- son, 35 L.J. C.P. 198 ; H.' & E. 369 ; L.E. 1 C.P. 365, Shipping LI. City of London and Colonial Financial As- sociation, in re, 36 L.J. Ch. 832, Company F23 . . , . , Clara Kilham, The, 39 L.J. Adm. 50 ; L.E, 3 A. & E. 161, Admiralty A 20 . S'lipping B 4 . ■ Clark V. Hoskins, 36 L.J. Ch. 689; (L.JJ.) 37 L.J. Ch. 661, Mortgage 17 . . 4Q 479 398 397 . 401 401 215 667 634 61 247 436 240 209 442 191 447 90 205 ■ 156 68 40 164 U 547 552 151 n 647 372 666 TABLE OF CASES. Clark V. Lord Rivers, 37 L.J. Ch. 70 ; L.E. 5 Eq. 591, Plin Eq. 5 V. Simpson, L.R. 6 Eq. 366, Costs in JEq. i . V. "Wallace, or Wallis, 35 B. i60,Specific Ferformance 28 . , ex parte, in re London and Colonial Go., 38 L.J. Ch. 562; L.E. 7 Eq. 560, Company E 51 {Set-off). . , in re, Cumberland v. Clark, L.E. 4 Ch. 412, Pr. in Eq.'EU in re, 36 L.J. Ch. 314; L.E. 1 Ch. 292, Mines 7 (Infant) . . . . Clark's Estate, in re, 3 De G. J. & S- 111, Will, Constr. H 4 . Trusts, in re, L.E. 9 Eq. 378, Will. Constr. M 13 Clarke, ex parte, Bowyer v. Woodman, L.E. 3 Eq. 313, lAmVations, Stat. qf,\0. V. Brown, L.E. 4 C.P. 600, Parliament 36 {Borough Vote) . . . , V. Clark, 36 L.J. Ch. 161 ; L.E. 1 Ch. 16, Injunction 6 . V. , and Mordaunt v. Clarke, 38 L.J. P. & M. 45; L.E. 1 P. & D. 592, Pro- bate K 24 . T. Clemmans, and Selway v. Clemmans, 36 L.J. Ch. 171, Legacy 1 . >v. Crowder, 38 L.J. M.C. 118; L.E. 4 C.P. 638, GaTne 4 . V. Hilton, L.E. 2 Eq. 810, Will, Constr. H24 . . . . V. Tyne Improvement Commissioners, 37 L.J. C.P. 110 ; L.E. 3 C.P. 230, Fenae 2 . Clarke, Pelix, in the goods of, 36 L.J. P. & M. 72, Probate H 2 {Evidence) Claudet V. Prince, 8 B.&S. 360; L.E. 2 Q.B. 406 ; 36 L.J. Q.B. 196, nom. Laudet. v. Prince, Practice at Law 35 . Claye. Oxford, 36 L.J. Ex. 15; 4 H. & C. 690 ; L.E. 2 Ex. 54, PI. at Law 21. Claydon v. Green, 37 L.J. C.P. 226 ; L.E. 3 C.P. 511, Vendor ^ Purchaser 25 . Clayton v. Kenton, 36 J.L. Ch. 428 ; L.E. 4 Eq. 1S8, County Court 12 . -, ex parte, in re Clayton, L.E. 6 Ch. 13, Bankruptcy, 89 . Cleare v. Foster and Cleare, 38 L.J. P. & M. 81 ; L.E. 1 P. & D. 655, Probate M 10 . Cleaver v. M'Kenna, 35 L.J. P. & M. 91, Probate B 2. Clegg V. Eowland, 35 L.J. Ch. 396; L.E. 2 Eq. 160, Mine 6 . V (No. 2), 36 L.J. Ch. 137 ; L.E. 3 Eq. 368, Executor 31 . . . Cleland, in re, 36 L. J. Bankr. 33 ; L.E. 2 Ch. 466, Bankruptcy 27 . , ex parte, in re Davies, 36 L.J. Bankr. 45 ; L.E. 2 Ch. 808, Attorney 50 . Clements v. Welles, 36 L.J. Ch- 265 ; 35 B. 513 ; L.E. 1 Eq. 200, Injunction 25 Cleopatra, The, 37 L.J. Adm. 31, Ship. T 13 . Cleveland, Duchess of, v. Meyrick, 37 L.J. Ch. 125, Legacy 7 {Shares) 424 203 127 . 448 618 . 630 338 399 286 485 . 325 276 620 606 481 442 423 602 208 53 486 PAGE Cliffy. Midland EaU. Co., L.E. 8 Q.B. 288, \ Bailway 5S. . . . -609 Clifford v. Watts, L.E. 5 C.P. 577, Contract 17. ISl Clifton V. Goodburn, L.E. 6 Eq. 278, WUl, Constr. H 10 618 Climie v. Wood, 37 L.J. Ex. 158; (Ex. Ch.) 38 L.J. Ex. 223 ; L.E. 4 Ex. 328, Fix- tures 6 . . . . .264 Clinch v. Financial Corporation, 37 L.J. Ch. 281 ; (F.C. of App.) 38 L.J. Ch. 1 ; L.E. i Ch.. Ill,- Company Gli . . .117 V , L.R. 2 Eq. 271, Production 1i -. 490 Clinton v. Clinton, L.E. 1 P. & D. 215, Divm'cei^ . . . . .238 Clowes V. Hughes, 39 L.J. Ex. ,62; L.E. 5 Ex. 160, Mortgage 3 . . .370 Cobb V. Mid Wales Rail. Co., 35 L.J. Q.B. 117; 7 B. & S. 267; L.E. 1 Q.B. 342, Lands Clauses Act 79 > . . . 320 Cobbett V. Warner, 36 L.J. Q.B. 94 ; 8 B. & S. 21 ; L.E. 2 a.B. 108, Costs at Law 36 202 Cobham, in re, ex parte Simpson, L.E. 1 Ch; 476, Bankruptcy 30 . . .46 Cobre Copper Mining Co., inre, Weston's case, 39 L.J. Ch. 753; L.E. 6 Ch. 614, Com- pany E 43 . . . . .127 Kelk's case ; Count Pahlen's case, 39 L.J. Ch. 231 ; L.E. 9 Eq. 107, Company's. 114 . 136 Cochrane v. Willis, 35 L.J. Ch. 36 ; L.R. 1 Ch. 58, Specific Performance 13 . . 564 Cochrane's Estate, in re, De Wolf v. Linsdell, 37 L.J. Ch. 293 ; L.R. 6 Eq. 209, Mercan- . Ule Law Ami. Act . . . 362 Cock V. Cooke, 36 L.J. P. & M. 6 ; L.R. 1 P. & D. 241, WUl, Formalities 8 - .636 Cocker V. Cardwell, 39 L.J. M.C. 28; 10 B. & S. 797.; L.R. 5 G.B. 15, Nuisance 10 . 389 Cockle V. London and South-Eastern Rail. Co., 39 L.J. C.P. 226 ; L.R. '6 C.P. 467, Negligence 35 ... . 387 Cocq V. Hunasgeria Coffee Co., L.R. 4 Ch. 415, Pr. i»%UU 3 . . .462 Coddington v. Paleologo, 36 L.J. Ex 73 ; L.E. 2 Ex. 193, Sale 1 . . .526 Coe V. Wise, 37 L.J. Q.B. 262; 7 B. & S. 831 ; L.E. 1 a.B. 711, Negligence 28 . 385 Coghill V. Coghill and Lauriero, 35 L.J. P. & M. 32 ; L.R. 1 P. & D. 26, Divorce 117 .238 Colchester, Earl, y. Kewney, 36 L.J. Ex. 204 ; (Ex. Ch.) 36 L.J. Ex. 172 ; L.E. 2 Ex. 263, Laiid Tax 1 {Exemption) . . 320 Coleby v. Coleby, L.E. 2 Eq. 803, Adminis- tration 12 . . ' . . .6 Coleman v. Coleman, 35 L.J. P. & M. 37 ; L.E. 1 P. & D. 81, Divorce 19 . . 228 Colemere, ex parte, in re Colemere, 36 L.J. Baukr. 8 ; L.R. 1 Ch. 128, Bankruptcy 10 . 43 Colenso v. Gladstone, 36 L.J. Ch. 2, Church 88 Coles V. Briatowe, 37 L.J. Ch. 737 ; (F.C. of App.) 38 L.J. Ch. 81 ; L.R. 4 Ch. 3, Stock Exchange 3. . . . . 672 V. Coles and Brown, 35 X.J. P. & M. 20 ; L.E. 1 P. & D. 40, Probate G 4 .481 \. Morris, 36 L.J. Ch. 833 ; L.E. 2 Ch. 701, Pr. m ij. V 9. . . . 453 TABLE OF CASES. 667 468 175 330 631 . 356 565 219 384 202 Coles V. Pack, 39 L.J. C.-P. 63 ; L.E. 5 C.P. 66, Princijyal if- Surety 4 . V. Turner, 35 L.J. C.P. 169 ; H. & K. 386; L.K. 1 C.P. 373, Ctmpo. Deed 46 . Coles' Will, in re, L.E. 8 Eq. 271, Legacy Z9 . CoUett V. CoUett, 36 B. 312 ; L.E. 2 Eq. 203, Will, Conair. N 1 . Colley's Trusts, in re, L.E. 1 Eq. 496, Mar- riage Settlement 8 . Collier t. McBean, 35 L.J. Ch. 144 ; L.E."! Ch. 81, Specific Performance 15 Collier, The, L.E, 1 A. & E. 83, ShippingTS. 658 Collingwood v. Stanhope," 38 L.J. Ch. 421 ; L.E. 4 E. & I. App. 43, Marriage Settlnt. i 355 Collins V. Lewis, L.E. 8 Eq. 708, Admtration 19 7 V. Middle Level Commissioners, 38 L.J. C.P. 236 ; L.E. 4 C.P. 279,Damage 12 Collis V. Selden, 37 L.J. C.P. 233 ; L.E. 3 C.P. i96, Negligence 18 {Chandelier) Collis, in re, in re Sheffield Waterworks Act, 1864, 35 L.J. Ex. 60; 4 H. & C. 74; L.E. - 1 Ex. 54, Costs at Law 31 . Colluin, ex parte, in re Asiatic Banking Cor- poration, 39 L.J. Ch. 59 ; L.E. 9 Eq. 236, Company E 122-{Forfeiture) Colman v. South-Eastern Bail. Co., 4 H. & C. 699, Negligence 31 . V. Turner, 39 L.J. Ch. 776; L.E. 10 Eq. 230, Fr. in Eg. 11 Colquhon, in the goods of, 37 L.J. P. & M. 1, Executor 3 {Substituted) Coltsman v. Coltsman, L.E. 3 E. & I. App. 121, Will, Constr. I 23 ' . Colyer v. Colyer, 35 L.J. Ch. 737 ; 3 De O. J. & S. 676 ; L.E. 1 Ch. 482, Pr. in Eq.llZ 468 Comer v. Parnell, 35 L.J. P. & M. 81, Pro- bate K 5 {Citation). . ' . Commercial Bank Corp. of India and the East, in re, L.E. 6 Eq. 517, Company F-38 in re, 38 L.J. Ch. 525 ; L.E. 8 Eq. 241, Company F 77, 79 . in re, ex parte Smith, Fleming & Co., and ex parte Gledstanes & Co., ,36 L.J. Ch. 333 ; L.K. 1 Ch. 538, Company G 28 . Company F 79 {Set-off) . (Ferrandes' Executors' case), ex parte Commissioners of Liland Eevenue, 39 L.J. Ch. 497 ; L.E. 5 Ch. 314, Company F 86 . ■ -^ Wilson's case, 38 L.J. Ch. 626 ; L.E. 8 Eq. 240, Company E 65 . Commercial Bank of India and the East, in re, L.E. 6 Eq. 517, Company F 38 . Commercial Union Wine Co., in re, 35 B. 35, Company F 53 {Production) Commings V. Heard, 39 LJ. Q.B. 9; 10 B. & S. 606 ; L.E. 4 Q.B. 669, PI. at Law 6 Commissioners of Inland Eevenue, ex parte, in re Commercial Bank of India and the East, 39 L.J. Ch. 497, Company F 86 Commissioners of Woods and Forests and Spitalfields Schools, in re, L.E. 10 Eq. 671, - Public Body, Power to take Land,Addenda 39 649 Concordia, The, L.E. 1 A. & E. 93, Ship. E 9 647 Conflans Quarry Co. v. Parker, 37 L.J. C.P. 61 ; L.R. 3 C.P. 1, Bankr. 8 . .41 138 386 ,450 255 623 483 162 156 163 157 168 129 152 164 420 168 232 226 242 557 316 Connelly V. Bremner, 35 L.J. C.P. 319; H. c& E. 612; L.E. 1 C.P. 657, Pr. at Law 12 439 Pr. at Law i& {Judgment) . . 44,3 Conolly V. Luscombe, Money v. Eobiuson, L.E. 3 E. & I. App. 139, A'ppeal, Addenda 2 . 646 Conradi v. Conradi and Flashman, 35 L.J. P. & M. 49 ; L.E. 1 P. & D. 163, Divorce 147 241 V. Conradi, Worrall and Way, 36 L.J. P. & M. 68 ; L.E, 1 P. &D. 391, Divorce 62 V , 37 L.J. P. & M. 55 ; L.E. 1 P. & D. 614, Divorce 2 {Jurisdiction) Divorce 162 {Costs) and 160 . Conservators of the Thames v. Hall, L.E. 3 C.P. 415, >SAi^r/!^Q 11 . V. Victoria Station and Pimlico Eail. Co., 38 L.J. C.P. 4 ; L.E. 4 C.P. 69, Lands Clauses Act 39 . Constable v. Constable, 39 L.J. P. & M. 17 ; L.E. 2 P. & D. 17, Divorce 74 Constantinople, and Alexandra Hotel Co., in re, Ebbett's case, 39 L.J. Ch. 168 ; (L.J.G.) ibid. 679; 36 B. 349;^L.E. 5 Ch. 302, Company E 28 . Continental Bank, in re, Castello's ease, L.E. 8 Eq. 504, Company E 67 . Contract Corporation, in re, ex parte Boyer, 36 L.J. Ch. 69 ; L.E. 2 Ch. 95, Company E 52 in re, Ebbw Vale Co.'s Claim, 39 L.J. Ch. 363 ; L.E. 5 Ch. 1 1 2, Company F 89 {Appeal) 158 , Head's case. White & Holme's case, 36 L.J. Ch. 121 ; L.E. 3 Eq. 84, Company E 187 . and re Joint-Stock Discount Co., ex parte Warrant Finance Co., 38 L.J. Ch. 565 ; (on App.) 39 L.J. Ch. 122; L.E. 5 Ch. 86 Company G 13 , . \ , in re Weston's case, 37 L.J. Ch. 617 ; L.E. 6 Eq. 17, Company E 43 . , ex parte, in re Barned's Banking Co., 36 L.J. Ch. 262 ; L.E. 2 Ch. 350, Company E 56 {Production) . ex parte, in re Barned'? Banking Co. (No. 2), 36 L.J. Ch. 732 ; (L.J.J.) 37 L.J. Ch. 81; L.E. 3 Ch. 105, Company E 82, 83 . Company E 175 {Co. holding Shares) Conybeare v. Parries, 39 L.J. Ex. 26 ; L.E, 5'Es.. 16, County Court Z6 . Cood, in the goods of, 36 L.J. P. & M. 129 ; L.E. 1 P. & D. 449, Probate B 27 . Cook V. Addison, 38 L.J. Ch. 322; L.E. 7 Eq. 466, Trustee D 5 . V. Hathway, 39 L.J. Ch. 29 L.E. 8 ; Eq. 612, Cos:!* m ,2^. 16 . V. Hemming, 37 L.J. C.P. 179; L.E. 3 C.P. 334, Bankruptcy 62 . V. Jaggard, 36 L.J. Ex. 76 ; 4 H. & C. 181 ; L.E. 1 Ex. 125, Will, Constr. F 1 . Cook's case, in re London Marine Insurance Corporation, L.E. 8 Eq. 176, Friendly Society, Addenda 26 Cook's Policy, in re Albert Life Assurance So' ciety, L.E.-9 Eq. 703, Company G 60 Cooke V. Cooke, 36 L.J. Ch. 48 ; L.E. 4 Eq. 77, Jurisdiction in Eq. 10 . 4q2 . 234 123 . 129 128 147 161 127 . 155 131 146 210 477 590 204 60 616 647 166 300 668 TABLE OF CASES. PAGE Cooke V. Forbes, 37 L.J. Cli. 178 ; L.R. 5 Eq. 166, Injimoiion 20 , V. Mayor, &o., of Bath, L.R. 6 Eq. 177, Easement 9 . Cooke and Edward's case, in re Albert Life Assurance Co., 39 L.J. Ch. 257, Company G61 Coombes v. Dibble, 35 L.J. Ex. 167; 4 S. & C. 375; L.B. 1 Ex. 248, Gaming 1 Coombs V. Coombs, 36 L.J. P. & M. 21 ; L.B. 1 P. & D. 218, Divorce 82 . V. (No. 2), 36 L.J. P. & M. 25 L.E. 1 P. & D. 288, Probate B 4 . Coombs, in tbe goods of, 35 L.J. P. & M. 78 L.E. 1 P. & D. 193, Probate B 5 . in the goods of (No. 2), 36 L.J. P. & M. 25; L.E. 1 P. & D. 302, Will, Formali- ties 29 Coope V. Cres'swell, 35 L.J. Ch. 496 ; (L.C.) 36 L.J. Ch. 114; L.R. 2 Ch. 112, Fraudu- lent Devise . Cooper V. Cooper, 38 L.J. Ch. 622 ; (L.C.) 39 L.J. Ch. 240 ; L.E. 5 Ch. 203, Power 20 . -^— T. • , 39 L.J. Ch. 525, Election. 7 . V. Evans, 36 L.J. Ch. 431 ; L.E. 4 Eq. 45, Principal 4' Surety 8 V. Gordon, 38 L.J. Ch. 489 ; L.E. 8 Eq. 249, Dissenters 1 . V. Jarman, 36 L.J. Ch. 85 ; L.E. 3 Eq. 98, Conversion 2' . V. Laroehe, 38 L.J. Ch. 591, Tenant for Life 15 . V. McDonald, 36 L.J. Ch. 304 ; 35 B. 504, Pr. in Eg. V 10 V. Martin, L.E. 3 Ch. 47, Power 29 V. Phipps, L.R. 2 E. & I. App. 149, Tenant for Life 7 . V. AVooUey, 36 L.J. M.C. 27 ; L.R. . 2 Ex. 88, Nuisance 16 {Smoke) , ex parte, in re Duckworth, 36 L.J. Bankr. 28 ; L.R. 2 Ch. 578, Company's. 179. 146 , in re, ex parte Moss, 37 L.J. Bankr. 1 ; L.R. 3 Ch. 29, Bankruptcy, Addenda 6 . 645 Cooper, Elvira, in the goods of, 39 L.J. P. & M. 8 ; L.E. 2 P. & D. 21, Probate B 21 477 Coote V. Lowndes, 39 L.J. Ch. 887 ; L.E. 10 Eq. 376, Administration 13. . .6 ■Copcutt V. Great Western Enil. Co., 36 L.J. C.P. 240 ; L.E. 2 C.P. 465, County Court 23 209 Cope V. Henshaw, 35 B. 504, Will, Constr. G 2 616 Will, Constr. M 8 . . .629 , in the goods of, 36 L.J. P.M. 83, Probate Gl . . . Copeland, in re, and Green, in re, in re Joint- Stock Coal Co., 3'8 L.J. Ch. 429 ; L.E. 8 Eq. 146, Company F 26 . Copley V. Burton, 39 L.J. M.C. 141 ; L.R. 5 C.P. 489, Alehouse 12 {Evidence) Coppin, in re (alias Du Bois), 36 L.J. M.C. 10 ; L.E. 2 Ch. 47, Extradition Corbett v. Hill, 39 L.J. Ch. 547 ; L.R. 9 Eq. 701, Injunction 16 {Air) , in re, 35 L.J. Ch. 793; L.R. 1 Ch, 516, Lunatic 2 . Cork a«d Youghal Eail., in re, ex parte 287 245 167 276 235 475 475 639 270 434 247 469 \ 224 . 195 679 454 435 . 578 390 505 10 . 481 152 18 269 287 341 ♦PAGE Overend, Gurney & Co., and London, Hamburgh, &c.. Exchange Bank, 39 L.J, Oh. 277 ; L.R. 4 Ch. 748, Railway 32 . Cornelia Henrietta, The, L.R. 1 A. & E. 51, Admiralty A- 11 {Wages) . Corner v. Sweet, 35 L.J. C.P. 161 ; H. & R. 403 ; L.R. 1 C.P. 456, Compo. Deed 121 184 Corniok v. Wadman, L.R. 7 Eq. 80, Will, Con- struction M. 11 . . . .630 Cornish v. Stubbs, 39 L.J. C.P. 202; L.R. 6 C.P. 334, Landlord # Tenant 2 . .305 Corranee v. Corrance and Lowe, 37 L.J. P. & M. 44; L.E. 1 P. & D. 499, Divorce 103 237 Corsellis v. Patman, L.E. 4 Eq. 156, Pr. in Eq.KKS . . . . .460 Cory V. Thames Ironworks and Shipbuilding Co., 37 L.J. Q.B. 68; L.R. 3 a.B. 181, Dainages 3 . . . . . 217 Cosby T. Millington, 38 L;J. C.P. 373, Will, Construction "B % .... 614 Cosens v. Bognor Rail. Co., 36 L.J. Ch. 104; L.R. 1 Ch. 694, Railway 28 . . 504 Cosnahan, in the goods of, 35 L.J. P. & M. 76 ; L.E. 1 P. &D. 183, Probate B 40 . 478 Cossey v. London, Brighton and South Coast Eail. Co., 39 L.J. C.P. 174 ; L.E. 5 C.P. 146, Production 4 . Cotton V. Prall, Akenhead's case, 36 L.J. C.P. 67 ; L.E. 2 C.P. 86, Parliament 57 Cottrell V. Cottrell, 35 L.J. Ch. 466 ; L.E. 2 Eq. 330, Covenant 21 Coulthurst V. Sweet, L.E. 1 C.P. 649, Ship- ping PI.'. County Life Assurance Co., in re, 38 L.J. Ch. 231; (L.J.G.) 39 L.J. Ch. 471; L.R. 5 Ch. 288, Attorney 42 . Coupland's case, in re Barned's Banking Co., 38 L.J. Ch. 575 ; (L.J.) 39 L.J. Ch. 287 ; L.E. 5 Ch.a67, Company G 4 . Company G 49 . Courtauld v. Legh, 38' L.J. Ex. 45 ; L.R. 4 Ex. 126, Easement 4 . . . V. (No. 2), 38 L.J. Ex. 124 ; L.R. 4 Ex. 187, Practice at Law 53 . 444 Cousins V. Phillips, 35 L.J. Ex. 84 ; 3 H. & C. 892, Lease 14 {Surrender) Coutts V. Ackworth, 38 L.J. Ch. 694; L.R. 8 Eq. 658, Voluntary Settlement 10 . 606 - — ■ V. (No. 2), 39 L.J. Ch. 649 ; L.E. 9 Eq. 519, Election 1 Coventry v. Chichester, 36 L.J. Ch. 673 ; L.R. 2 E. & I. App. 71, Marriage Settlement 28. V. Gladstone, 37' L.J. Ch. 30 ; L.E. 4 Eq. 493, Shipping A ] 8 . T. (No. 2), 37 L.J. Ch. 492 ; L.R. 6 Eq. 44, Stoppage in Transitu i . V. London, Brighton and South Coast Rail. Co., 37 L.J. Ch. 90; L.R. 5 Eq. 104, Lands Clauses Act 77 Cowan V. Milbourn, 36 L.J. Ex. 124 ; L.R, 2 Ex. 230, Blasphemy Coward v. Gregory, 36 L.J. C.P. 1 ; L.R. 2 C.P. 153, Covenant 22 {Repairs) . Cowbridge Rail. Co., in re, 37 L.J. Ch. 306 ; L.E. 5 Eq. 413, Judgment 8 . . 488 401 213 . 555 36 160 244 325 . 247 358 543 . 576 . 319 69 213 297 TABLE OF CASES. 669 ' PAGE Cowen, ex parte, in re Oowen, see next case. in re, ex parte Foster, 36 L.J. Bankr. 41 ; L.E. 2 Ch. 563, Composition Deed 31 . 172 Cowley, Earl of, v. Welleeley, 35 B. 635 ; L.R. 1 Eq. 656, Tmantfor Life 3, 4 '. 678 , in re, 35 L.J. Ex. 177; 4 H. & C. 476 ; L.R. 1 Ex. 288, Ijegaci/ Duty 10 ' . 332 Cox v. Bennett, L.E. 6 Eq. 422, Will, Constr. E 3 6 1 3 V. Bockett, 35 B. 48, Forfeiture 6 . 332 V. Cox, 38 L.J. Ch. 669 ; L.E. 8 Eq. US, Tenant for Life li . . .679 V. Fonblanque, 37 L.J. Ch. 622 ; L.E. 6 Eq. 482, Forfeiture 5 . . .266 V. Great Eastern Bail. Co., 38 L.J. C.P. 151 ; L.E. 4 C.P. 181, Carriers 19 . .79 V. " Laud and Water" Journal Co., 39 L.J. Ch. 152 ; L.E. 9 Eq. 324, Copyright 2 195 . 196 L.E. 4 Ex. Copyright 13 V. Lee, 38 L.J. Ex. 219 284, Libel Tc (Newspaper) . Crabb v. Crabb, 37 L.J. P. & M. 42 ; L.E. 1 P. & D. 601, Divorce 41 . Cracknell v. Mayor, &c., of Thetford, 38 L.J. C.P. 353 ; L.E. 4 C.P. 629, Navigation 2 . Crafter v. Metropolitan Eail. Co., 35 L.J. C.P. 132 ; H. & E. 164 ; L.E. 1 C.P. 300, Negligence 17 Cragg v. Taylor, 36 L.J. Ex. 92 ; L.E. 1 Ex. 148 ; (Ex. Ch.) 36 L.J. Ex. 63; 4 H. & C. 158 ; L.E. 2 Ex. 131, Company 'Ei 159 Judgment G- 14 . Craggs V. Gray, 35 B. 166, Costsin Equity 21 204 Cniig's Executors' case, in re Albert Life As- surance Co., 39 L.J. Ch, 639 ; L.E. 9 Eq. 706, Company G 62 Cramer v. Bird, 37 L.J. Ch. 835; L.E. 6 Eq. 143, Company D 5 . Eailway 65 ... . and Co. v. Mott, 32 L.J. O-B. 172 ; Jj.Ii. 5 Q,.B.S57, Landlord 4- Tenant 13 . Crane x Kilpin, 37 L.J. Ch. 913 ; L.R. 6 Eq. 334, Composition Deed 96 . ' . Revenue 3 . . . . T. PoweU, 38 L.J. M.C. 132; L.E. 4 C.P. 123, Master # Servant 2 Crane's Estate, in re, L.E. 7 Eq. 322, Lands Clauses Act 60 . Cranwell v. Mayor, &c., of London, 39 L.J. Ex. 193 ; L.E. 5Ex. 284, London Impr. Act 4 341 Statute 5 . . . .570 ' Craven v. Brady, 36 L.J. Ch. 906 ; (L.C.) 38 L.J. Ch. 345 ,-L.E. 4 Ch. 296, Will L 16 . T.' Smith, 38 L.J. Ex. 90 ; L.R. 4 Ex. 146, Costs at Law 13 ex parte, in re Craven and Marshall, 39 L;J. Bankr. 33 ; L.R. 10 Eq. 648, Bank- ruptcy 18 {Act of) .... Crawley's case and Robinson's case, in re Peruvian Rail. Co., L.R. 4 Ch. 322, Com- pany E 21 . Crawshay v. Morgan, L.E. 4 Q.B. 681 ; (on App.) 41 L.J. M.C. 202 ; L.E. 6 E. & L App. 304, Bate 13 . Crennej, &c.. Mining Co. v. Willyams, 36 B; 363, Company C 37 334 231 381 384 143 297- 167 121 611 306 181 523 360 317 626 199 44 124 516 113 377 328 641 647 137 474 186 333 365 380 326 149 73 627 . 202 Cresswell v. Cresswell, 37 L.J. Ch. 621 ; L.E. 6 Eq. 69, Mortmain 9 Legacy 23 . . . Will, Formalities 42 . . Crew's case, in re London Marine Irsuranoe Co., L.E. 8 Eq. 176, Fr. Soc, Addenda 26 Creyke's case, in re Blakeley Ordnance Co., 38 L.J. Ch. 677; 39 L.J. Ch. 124; L.E. 5 Ch. 63, Company E 120 . Crispin v. Cumano, 38 L.J. P. & M. 28 ; L.E. 1 P. & D. 622, Probate A 1 . Crofts, Harriet, in the goods of, L.E. 2 P. & D. 1 8, Conflict of Laws 3 . I Legitimacy Declaration Act 1 (2) Crofts V. Haldane, 36 L.J. Q.B. 85 ; 8 B & S. 194; L.R. 2 Q.B. 194, Building 2 ... Crompe, in re, L.E. 4 Ch. 653, Luiiatic 6 .. 342 Crook V. Seaford, Corporation of, L.E. 10 Eq 678, Municipal Corporation 13 . V. Hill, 38 L.J. Ch. 579, Legacy 3 Crookhaven Mining Co., in re, 36 L.J. Ch. 226,; L.E. 3 Eq. 69, Company F 4 Cropper v. Cook, L.E. 3 C.P. 194, Broker 3 . . Cropton v. Davies, 38 L.J. C.P. 159 ; L.E. 4 C.P. 169, Wdll, Construction L 22 Cross v. Hutchinson, 7 B. & S. 849, Costs at Law 34 . v. Wilks, 35 B. 662, Will, Constr.'E 19 . 615 Cross's case, in re General Provident Assur- ance Co., "38 L.J. Ch. 683, Company E 116 137 Practice in Equity B 3 . . . 446 Crosby v. Noton, 36 L.J. P. & M. 55, Probate ' K 10 . . . . .484 Crossley V. Dixon, 37 L.J. Ch. 629; L.E. 6. Eq. 332, Practicein Equity, C 12 . . 447 Crossley and Sons v. Lightowler, 36 L.J. Ch. 684 ; L.E. 2 Ch. 478, Easement 10 . 245 Crosthwaite v. Dean, L.E. 5 Eq. 245, Will, Constr.. Gi . . . .616 Crothers v. Crothers, L.E. 1 P. & D. 568, Di- vorce [Restitution), Addenda 23 Crow V. Pettingill, 38 L.J. Ch. 186, Parent ^ Child I . and Eobinson v. Eeeves and Nesbitt, 36 L.J. C.P. 124 ; L.E. 3 C.P. 264, Attach- ment 2 .... . Croxton v. May, 39 L.J. Ch. 155; L.E. 9 Eq. 404, Baron ^ Feme 31 . Crump V. Lambert, L.E. 3 Eq. 409, Injunc- tion 19 ' . Cruse V. Paine, 37 L.J. Ch. 711; (L.C.) 38 L.J. Ch. 225; L.E. 4 Ch. 441, Stoc/c Ex- change 2 . Cull V. Ingles, 37 L.J. Ch. 385, Pleading in Equity 10 (Exceptions) Cull en V. Attorney General for Ireland, L.E. 1 E. & I. App. 190, Legacy Duty 3 . CuUwick V. Swindell, 36 L.J. Ch. 173 ; L.E. 3 Eq. 249, Fixtures 9 . . . Culrerhouse v. Wickens, 37 L.J. C.P. 107; L.E. 3 C.P. 296, Attachment 6 Cumberland v. Clark, in re Clark, L.E. 4 Ch. i\2. Practice in Equity 'E li Cuming, in re, L.E. 6 Ch. 72, Trust F 13 . 647 . 392 30 60 287 672 426 331 265 30 448 694 670 TABLE OF CASES. PAGE Ourrie v. Bombay Native Insurance Co., 39 L.J. P.C. 1 ; L.E. 3 P.O. 72, Marinelns. 17 348 Marine Insurance 21 . . . 349 Marine In-iurance 29 . . .'351 Curtis' case, in re The Imperial Mercantile Credit Association, 37 L.J. Cli. 629 ; L.E. 6 Eq. 465, Company E 62 (Infant) . 129 Curtis V. Curtis, 38 L.J. P. & M. 9, Divorce 111 [Petition) . . . .238 Divorce 151 {Costs) '. . .241 V. Piatt, 35 L.J. Ch. 852 ; L.E. 1 E. &I. App. 337, Patent 23 [Royalties) . . 413 Cutlibertson v. Butterwortli, 38 L.J. C.P. 98 ; L.E. 4 C.P. 523, Parliament 39 . 399 V. Hains, 38 L.J. C.P. 109; L.E. 4 C.P. 525, Parliament 34 . . . 399 Cutts v. Ward, 36 L.J. Q.B. 161 ; 8 B. & S.. 277 ; L.E. 2 aB. 357, Truck Act 1 . 585 Cyrus, ex parte, in re Broadridge, L.E. 6 Ch. 176, Bankruptcy 25 . ■ . .45 Czech V. General Steam Navigation Co., 37 L.J. C.P. 3; L.E. 3 C.P. 14, Shipping A 4 . 541 49 Dadabhai Naoroji v. Chartered Bank of India, Auati;alia and China, 37 L.J. C.P. 221 ; L.E. 3 C.P. 444, Bankruptcy 55 . D'Ademar, the Viscountess, v. Bertrand, 35 B. 19, Trust F 1 . Dallow, in the goods of, 35 L.J. P. & M. 81 ; L.E. 1 P. & D. 1 89, Will, Formalities 18 638 Balton V. Kumiss (sub nom. Button v. Fur- niss),35L.J.Ch. 463; 35B. 461, Sheriff IS 539 Danell v. Page, 37 L.J. Ch. 631, Pr. in Ej. WW 2 .... Daniel' V. Metropolitan Eail. Co., 37 L.J. C.P. 146; L.E. 3 C.P. 216; (Ex. Ch.) 37 L.J. C.P. 280 ; L.E. 3 C.P. 591, Carrier 3 . Negligence 3 . . . ■. Darby v. Waterlow, 37 L.J. C.P. 203 ; L.E.3 C.P. 453, Interpleader 2 . D'Arcy v. Tamar, Kit Hill and Collington Kail. Co, 36 L.J. Ex. 37; 4H. & C. 463; L.R. 2 Ex. 158, Railway 8. Dare Valley Kail. Co., in re, and in re Ehys and Eichards, 37 L.J. Ch. 719 ; L.B. 6 Eq. 429, Arbitration 9 . , in re, L.E. 4 Oh. 554, Arbitration 16 . V. Khys, 38 L.J. Ch. in , Arbitration 15 Daring, The, 37 L.J. Adm. 29'; L.E. 2 A. & E. 260, Shipping K 4 Darnley, Earl of, v. London, Chatham and Dover Eail. Co., 36 L.J. Ch. 404 ; L.E. 2 E. & I. App. 43, Vendor ^ Purchaser 12 . Darville, ex parte, 36 L.J. C.P. 133; L.R. 2 C.P. 44, Attorney 4 [Articles) Daubney v. Leake, in re Taylor's Estate, 35 L.J. Ch. 347; 35 B. 311 ; L.E. 1 Eq. 493: Costs in Eq. 12 . pauglish V. Tennent, 36 L.J. Q.B. 10; 8 B. & ^, J ; L.E. 2 . 21 V. Gillott, L.R. 3 Eq. 274, Comp. E 106 135 Doncaster Permanent Building and Invest- ment Society, in re, L.E. 3 Eq. 158, Friendly _ Society 17 . . . . .274 in re, ex parte Hojiper, 36 L.J. Ch. 871 ; L.R. 4 Eq. 679, Friendly Soc. 16 .274 Dorchester, Mayor and Aldermen of, v. Eusor, 39 L.J. Ex. 11 ; L.E. 4 Ex. 335, Market 1. 353 Doulton V. Metropolitan Board of Works, 39 L.J. Q.B. 165 ; L.E. 5 Q.B. 333, Arbi- tration F 4 [Costs) ... 27 Doxist V. Slater, 38 L.J. Q.B. 159; 10 B. & S. 400, Action 11 {Notice of) . .4 Dow T. Dow,' 35 L.J. P. & M. 95 ; L.E. 1 P. & D. 227, Divorce 132 . . . 239 Dowling V. Dowling, L.E. 1 Ch. 612, Will 119 . . . . . .623 Down T. Ellis, 35 B. 678, Pr. inEq.DD 2 . 457 Downes v. Ship, 37 L.J. Ch. 642 ; L.R. 3 E. & L App. 343, Company E 152 . .142 Downing v. Capel, 36 L.J. M.C. 97 ; L.E. 2 G.F. iei. Arrest n (Evidence) . . 29 Dowse, The, 39 L.J. Adm. 46 ; L.E. 3 A. & A. 135, Admiralty A 9 . . .9 Doyle V. Falconer, 36 L.J. P.C. 33 ; L.R. 1 P.C. 328, Colonial Law 18 . . . 101 Dracachi v. Anglo-Egyptian Navigation Co., 37 L.J. C.P. 71 ; L.K. 3 C.P. 190, Ship. A 8 642 Drake v. Pywell, 4 H. & C. 78, PL at Law 12 421 Drake's case, Eegina v. Justices of West Riding, 39 L.J. M.C. 17 ; 10 B. & S. 840; L.R. 6 Q-B. 33, Alehouse 1 . . .16 Drakeford v. Piercy, 7 B. & 8. 615, PI. atL. i 420 Drawbridge v. London, Chatham and Dover Rail. Co., 36 L.J. Ch. 323; L.R. 2 Ch. 201, Eailway 35. ... . 606 Drax V. Somerset and Dorset Rail. Co., 38 L.J. Ch. 232, Parties 8 ; . . 404 Drennan v. Andrew, 36 L.J. Ch. 1 ; L.R. 1 Ch. 300, Pr. in % E 16 . . . 449 Will, Constr. M 23 . . .631 Drew's estate,' in re, ex parte Mason, 36 L.J. Ch. 846 ; 36 B. 443 ; L.R. 2 Eq. 206 and L.R.I Ch. 126 Land Registry Act 1 . 308 Drew's case, in re London, Bombay and Medi- terranean Bank, 36 L.J. Ch. 785, Company C 84 119 Droege v. Stewart, 38 L.J. Adm. 67, Ship. B 5 644 Droitwich Salt Company v. Curzon, 37 L.J. Ex. 2 ;■ L.R. 3 Ex. 35, Company C 63 .116 Druiff V. Lord Parker, 37 L.J. Ch. 241 ; L.R. 6 Eq. IZl, Equity Jurisdiction 1 . 299 Drummond v.iDrummond, 36 JjJ. Ch. 780; (F.C. of App.)36L.J. Ch. 153; L.R. 2 Ch. 32, Equity Jurisdiction 7 ■ ■ • 300 V. (No. 2), 37 L.J. Ch. Sll, Equity Jurisdiction 6 . . . . 299 Drummoud's case, in re China Steamship & Lahuin Co., L.E. 4 Ch. 772, Company 'ESS 126 Drury and Lyne, in re, 38 L.J. Ch. 278, Ar- bitration A 9 . . . .23 Drysdale v. Drysdale, Corbett and Gane, 36 L.J. P. & M. 39; L.E. 1 P. & D. 365, Divorce 68 . , . . . . 233 Dubois, alias Coppin, in re, 36 L.J. M.C. 10 ; L.E. 2 Ch. 47; Extradition 1 . .■ 269 Du Boulay v. Du Boulay, 38 L.J. P.C. 36 ; L.E. 2 P.C. 430, Colonial Law 9 . .99 Du Bois, alias Coppin, ^6 L.J. Ch. 80 ; L.E. 2 Ch. 47 Extradition .... 269 Duckett V. Satterfield, 37 L.J. C.P. 144; L.R.sp.'B. 227, Shipping D 5 . .645 Duckworth, in re, ex parte Cooper, 36 L.J. Bankr. 28 ; L.E. 2 Ch. 578, Company E 179 146 Duddell V. Simpson, 35 L.J. Ch. 451; (L.JJ.) 36 L.J. Ch. 70,; L.E. 2 Ch. 102, Vendor and Purchaser 20 . . . . 601 Duero, The, 38 L.J. Adm. 69 ; L.E. 2 A. & E. 393, Shipping A 5 . . - . 541 Dugdale v. Meadows, 39 L.J. Ch. 180 ; L.E. 9 Eq. 212, Legacy Duty 9 . . . 332 Duggan's Trusts, in re, L.E. 8 Eq. 697, Costs inEqu'tyd ..... 203 Duggins; in the goods of, 39 L.J. P. & M. 24, Will, Formalities 41 . . . 640 Duly v. Nalder, 35 L.J. Ch. 52, V.iP. 36 . 604 Dunball v. Walters, 35 B. 665, EaseTnent 7 . 245 Duncan v. Scottish North-Eastern Eail. Co., L.E. 2 Sc. App. 20, Rate, Addenda 42 . 649 Duncan, in re, in re Taylor's Charities, 36 L.J. Ch. 513 ; L.E. 2 Ch. 356, Charity 2 . 83 TABLE OF GASES. 673 Dtindonald, Earl of, v. Masterman, 38 L.J. • Ch. 350 ; L.R. 7 Eq. 504, Attorney 19 . 34 Dungy V. London, Mayor of, 38 L.J. C.P. 29S, Lands Clauses Act 27. . .313 DunhiU v. Ford, 36 L.J. C.P. 32 ; L.R. 3 C.P. 36, Arbitration F 1 . . .27 Dunlop V. Johnston, L.E. 1 Sc. App. 109, Scotch Law 10 . . . . 532 Dunn V. Dunn, L.R. 1 P. & D. 277, Will, Formalities 43 . . . .641 V. Ferrior, see Cairow v. Ferrior. Duprez v. Veret, 38 L.J. P. & M. 5 ; L.R. 1 P. & D. 683, Probate K 15 . . .484 Durell V. Pritehard, 35 L.J. Ch. 223 ; L.E. 1 Ch. 244, Injunction 44 . . .291 Durrant v. Kennett, 39 L.J. C.P. 107 ; L.R. 5 C.P. 282, Parliament 44 . . . 400 Duthie V. Hilton, 38 L.J. C.P. 93 ; L.R. 4 C.P. 138, Shipping HI. . .649 Dutton V. Furniss, 35 L.J. Ch. 463 ; 35 B. 461, Sheriff IS . . . ' . 539 Dyer v. Best, 35 L.J. Ex. 105 ; 4 H. & C. 189 ; L.E. 1 Ex. 152, Limitations, Stat, of 7 337 Dyers' Co. v. King, 39 L.J. Ch. 339 ; L.R., 9 Eq. 438, Injunction 10 (Light) . . 286 Dyke's Estate, in re, L.R. 7 Eq. 337, Power 10 433 Eagle V. Charing Cross Rail. Co., 36 L.J. C.P. 297 ; L.R. 2 C.P. 638, Lands 01. Act 18 311 Earl George, in the goods of, 36 L.J. P. & M. 127 ; L.R. 1 P. & D. 450, Probate B 39 . 478 Earle v. Sidebottom, 37 L.J. Ch. 503, Admon. 1 5 Pr.inEq.M.2. . . .451 East and West Junction Rail. Scheme Co., in , re, 38 L.J. Ch. 622 ; L.R. 8Eq.87, Bailway 61510 East of England Bank, iu re, v. Bugg, ex parte, 35 L.J. Ch. 43, Company E 157 , Feltham's Executors, ex parte, 35 L.J. Ch. 196; L.R. 1 Eq. 219, Company C 27 . — — in re, ex parte Provincial Banking Cor- poral., L.R. 6Eq. 368; (F.C. of App.) 38 L.J. Ch. 121; L.R. 4 Ch. 14, Company G 12 . 161 East Gloucestershire Rail. Co. v. Bartholo- mew, 37 L.J. Ex. 17 ; L.R. 3 Ex. 15, Corrt- pany E 6 . . East Kongsberg Co., in re Bigg's case, 35 L.J. Ch. 216 ; L.R. 1 Eq. 309, Company E 121 . East London Union, Guardians of, v. Metro- politan EaiL Co. 38 L.J. Ex. 226 ; L.R. 4 Ex. 309, Lands CI. Act 38 . Easton, Overseers of, v. Overseers of Marl- borough, 36 L.J. M.C. 41 ; L.R. 2 Q.B. 128, Poor 16 ... . Eastwood v. Avison, 38 L.J. Ex. 74 ; L!R. 4 Ex. 141, Will, Constr. I 24 . V. Lockwood. 36 L.J. Ch. 573 ; L.R. 3 Eq. 487, Witt, Constr. L 24 Eaton V. Eaton, L.R. 2 P. & D. 61, Divorce 88 V. Watts, L.R. 4 Eq. 1.51, Will K 2 . Ebbett's^ case, in re Constantinople and Alex- andra Hotel Co., 39 L.J. Ch. 158; (L.J.G.) ibid. 679 ; 35 B. 349 ; L.E. 6 Oh. 302, Company F 28 . Digest, 1865-70. 143 HI 122 137 315 430 . 623 628 235 624 125 VLdH Ebbw Vale Co.'s Claim, in re Contract Corpora- tion, 39 L.J. Ch. 363; L.R. 5 Ch. 112, Company F 89 . Ecclesiastical Commissioners, The, v. Merral, 38 L.J. Ex. 93 ; L.R. 4 Ex. 162, L.^T.l. V. , ex parte, 39 L.J. Ch. 623, Lands Clauses Act 64 . Eekersley v. Piatt, 36 L.J. P. & M. 7 ; L.R. 1 P. &D. 281,P?'o6ai6B 36 Will, Formalities 59 . Edge, in re, 35 L.J. C.P. 263 ; L.R. 1 C.P. 533, Baron ^ Feme 26 . . . Edgell V. Day, 35 L.J. C.P. 7 ; H. & R. 8 ; L.R. 1 C. P. 80, Attorney 22 Edgeworth v. Edgeworth, L.R. 4 E. & I. App. 35, Wai, Constr. ISf 4. Edgworth'scase, in re Cefn CilcenMine Co., 38 L.J. Ch. 78 ; L.R. 7 Eq. 88, Company C 10 . Edmonson's Estate, in re, L.R. 5 Eq. 389, WUl, Constr. LI. Edmunds, in re, 35 L.J. Ch. 638, L. CI. Act 69 318 V. Bushell and Jones, 35 L.J. Q.B. 20; L.R. 1 Q.B. 97, Principal # Agmt 1 . -464 V. Greenwood, 38 L.J. C.P. 115; L.E. 4 C.P. 70, Libel 10 . V. Waugh, 35 L.J. Ch. 234; L.E. 1 Eq. 418, Limitations, Stat, of, 10 . Edward Oliver, The, 36 L.J. Adm. 13 ; L.R. 1 A. & E. 279, Shipping K 2 Edwards, ex parte, in re Prytherch, 35 L.J. Bankr. 11, Bankruptcy 44 . V. Hatton, 35 L.J. Eccl. 1 ; 1 L.E. 1 A. & E. 21, Church Rate 3 . V. Jones, 35 B. 474, Will, Constr. G 1 V. Martin, 35 L.J. Ch. 186 ; L.R. 1 Eq. 121, Bankruptcy 63 V. London and North-Western Rail. Co., 39 L.J. C.P. 241; L.E. 5 C.P. 445, EaQ- way 71. V. Eusholme, Overseers of, 38 L.J. M.C. 153; 10 B. & S. 526; L.E. 4 Q.B. 654, Rate 2. . . . V. Wickwar, Brayne's Purchase, 36 L.J. Ch. 48 ; 1 L.E. 1 Eq. 68, Fend. ^ Purchr. i 599 V. (No. 2), 35 L.J. Ch. 309; 1 L.R. 403, Attornment 1 V. Thompson, 38 L.J. Ch. 65, Power 5 Trust C 2 Eeies v. Boys, in re Boys, ex parte Hop Plant- ers' Co., 39 L.J. Ch. 655 ; L.R. 10 Eq. 467, Evidence SO (Omis of Proof) Egerateia, The, 38 L.J. Adm. 40, Ship. M 6 Eglington v. Bramwell, 35 L.J. Q.B. 163; L.R. 1 Q.B. 494, Bankruptcy 64 . Eglinton, Earl of, v. Lamb, 35 L.J. Ch. 113, Production in Equity 10 Elborough v. Ayres, 39 L.J. Ch. 601 ; L.R. 10 Eq. 367, Conspiracy C 12 Egremont v. Thompson, L.R. 4 Ch. 448, Pr. in Eq. II 10 (Revivor) Egyptian Commercial Trading Co., ex parte, in re Kelson, L.R. 4 Ch. 126, Compo. Deed 119 1. . . . Elizabeth, The, 39 L.J. Adm. 53; L.E. 3 A. & E. 33, Admiralty A 10 (Appeal) 4E 168 304 317 478 B42 69 34 632 108 626 335 337 551 4'8 96 616 60 612 614 37 432 589 254 5S4 50 489 108 458 184 674 TABLE OF CASES. ElizsiLeth ,Jenkins, The, and the Agra, L.E. 1 P.O. 501, Shipping E 10 . Elkington's case, in re Eiohmond Hill Hotel Co., 36 L.J. Ch. 693 ; L.R. 2 Ch. 511, Cam- pmiy F 168 {SJiares on Condiiion) Elliott V. Johnson, 36 L.J. Q.B. 44; 8 B. & S. 38 ; L.R. 2 Q.B. 120, Lease 7 . Landlord and Tenant 5 V. Richardson, 39 L.J. C.P. " 340 ; L.E. 5 C.P. 744, Company E 56 ^ V. Royal Exchange' Assurance Co., 36 L.J. Ex. 129 ; L.E. 2 Ex. 237, Arbitration A 3 (Submission) .... Ellis V. McCormick, 38 L.J. Q.B. 127; 10 B. &S. 83 ; L.E. 4 Q.B. 271, Compo.Beed 79 169 Ellis in re, ex parte Banfield, 35 L.J. Bankr. 12; L. R. 1 Ch. 154, Composition Deed, 58 . Composition Deed 19 . . Ellison V. Sharp, 36 L.J. Ch. .508; L.E. 2 Ch. 35-6, Pr. in Eq. II 16 . Elmslie v. Boursier, 39 L.J. Ch. 328 ; L.E. 9 Eq. 217, Patent, 25 . I'llm.die & Co., in re, L.E. 9 Eq. 72, Attorney Zi {Bill of Costs) . . . ' . Elphinstone V. Pnrchas, in re Hebbert, 39 L.J. Eccl. 28; L.R. 3 A. & E. 66, Church 30 V. , 39 L.J. Eccl. 124 ; L.E. 3 P.C. 245, Church 38 . Elphinstone, Lord, ex parte, in ro Gartness Iron Co., 39 L.J. Ch. 884 ; L.R. 10 Eq. 412, Company G 23 . Ellston V. Deacon, L.E. 2 C.P. 20, Partners 23 409 Elstone and Rose, in re, 38 L.J. Q.B. 6 ; 9 B. & S. 609 ; L.E. 4 Q.B. 4, Prohihition 1. Elton, in re, 37 L.J. Ch. 482, Attorney 7 Emanuel v. Eqharts, 9 B. & S. 121, Bill of Exchange Z2 {Cheque) Emerson's case, in re London, Hamburgh and Continental Exchange Bank, 35 L.J. Ch. 652 ; L.E. 2 Eq. 231 ; (L.JJ.) 36 L.J. Ch. 177; 35 B. 518; L.E. 1 Ch. 433, Com- pany E 72 . Empire Assurance Corporation, in re, ex parte Bagshaw and Wigglesworth, 36 L.J. Ch. 663 ; L.E. 4 Eq. 431, Company C 83 . Empire of Peace, The, 39 L.J. Adm. 12, Ship- piiiij B 6 . Emp.son's case, in re Victoria Permanent Benefit Building and Freehold Land So- ciety, L.E. 9 Eq. 697, Estoppel 1 . Enderby's Trustees, en parte, in re Telegraph Construction and Maintenance Co., 39 L.J. Ch. 723 ; L.R. 10 Eq. 384, Company C 67 Energy, The, 39 L.J. Adm. 53 ; L.E. 3 A. & E. 48, Shipping E 5 Engcll V. Fitch, 37 L.J. Q.B. 145; 9 B. & S. 250; (Ex. Ch.) 38 L.J. Q.B. 304; 10 B. & S. 738 ; L.E. 4 Q.B. 659, Damages 5 England, The, 38 L.J. Adm. 9 ; L.E. 2 P.C 253, Admiralty C 3 England v. Lord Tredegar, 35 L.J. Ch. 386 : 35 B. 256 ; L.R. 1 Eq. 344, Insurance 2 V. Layers, L.R. 3 Eq. 63, Povier 31 V. Marsden, 35 L.J. C.P. 259; H. & E. 560 ; L.E. 1 C.P. 52, Action 2 . 647 144 323 605 . 128 22 176 179 459 414 35 92 94 162 491 32 67 . 130 119 544 249 116 547 217 12 292 435 49 140 162 162 167^ 157 4S 376 548 . 116 140 140 English and American Bank, ex parte, in re Eraser, Trenholme & Co., L.E. 4 Ch. 49, Bankruptcy 52 {ProoJ) English, &c. EoUing Stock Co., Lyon's case, 35 B. 646, Company E 138 English and Scottish Marine Insurance Co., in re, ex parte Maclure, 39 L.J. Ch. 685 ; L.E. 5 Ch. 737, Company G 22 . English Joint-Stock Bank, in re, ex parte Harding, L.R. 3 Eq. 341, Company G 17 . — — , in re Yelland's case, L.E.'4 Eq. 360, Company G 56 . , in re, L.E. 3 Eq. 203, Company F 80 . Ensby, in re, ex parte Ensby, 35 L.J. Bankr. 23, Bankruptcy 20 . Entwistle v. Davis, 36 L.J. Ch. 826; L.E. 4 Eq. 272, Mortmain 4 . . . Esk, The— The Gitana, 38 L.J. Adm. 33; L.E. 2 A. & E. 350, Shipping E 11 Estate Co., Limited and Eeduced, in re, L.E. 6 Ch. 407, Company G 66 . Estates Investment Co., in re Ashley's casei 39 L.J. Ch. 354; L.E. 9 Eq. 263, Com- pany E 132 , McNeill's case, 39 L.J. Ch. 822 ; L.E. 10 Eq. 503, Company's, 135 , ex parte Pawle, 38 L.J. Ch. 318 ; (L.JJ.) ibid. 412 ; L.E. 4 Ch. 497, Company E 153 142 , ex parte, Turnley v. Oliver, L.E. 8 Eq. 227, Company F 46 . . .153 European and American Finance Co., ex parte, in re Strand Music Hall Co., 36 B. 163, Company C 36 . . . llg European Bank, in re, ex parte Baylis, 35 L.J. Ch. 690 ; L.R. 2 Eq. 521, Compajiy F 15 160 in re, ex parte Oriental Commercial Bank, 39 L.J. Ch. 588 ; (L.J.G.) 39 L.J. Ch. 588; L.R. 5 Ch. 358, Company C 36 Bill of Exchange 24 . European Central Raih Co. v. Westall, 35 L.J. Q.B. 9; L.R. 1 Q.B. 167, Composi- tion Deed, 61 in re, Gustard's case, 38 L.J. Ch. 610; L.R. 8 Eq. 438, Company E 25 . . , Holden's case, L.R. 8 Eq. 444, Costs in Eq.T . , Parson and Spong's case, 39 L.J. Ch. 64 ; L.R. 8 Eq. 656, Company E 68 European Life Assurance Society, in re, 39 L.J. Ch. 324; L.R. 9 Eq. 122, Company E 19 and 26 . . . Eustace v. Dublin Trunk, &c., Connecting Rail. Co., 37 L.J. Ch. 716; L.E. 6 Eq. 182, Company E 103 . Evans v. Bagshaw, 39 L.J. Ch. 145; L.E. 8 Eq. 469; (App.) L.E. 6 Ch. 340, Parti- tion 4 . . . , Y. Bignold, 38 L.J. Q.B. 293 ; 10 B. & S. 621 ; L.E. 4 Q.B. 622, Insurance 3 V. Evans and Bird, L.E. 1 P. & D. 36, Divorce, 139 . V. Jones, 36 L.J. P. & M. 70, Probate G 2 481 V. Louis, L.E. 1 C.P. 656, Production_ at Law 5 . . . . '. . 488 V. Slack, 38 L.J. Eccl. 38, Church 16 . 89 113 66 176 124 203 129 . 151 134 406 292 . 240 TABLE OF CASES. 676 Evans v. Smalloombe's Executors, in re Agri- culturist Cattle Insnce Co., 37 L.J. Ch. 793 ; L.E. 3 E. & I. App. 249, Company E 108 . 135 V. "Walton, 36 L.J. C.P. 307; L.R. £ C.P. 616, Parent and Child 5 . .398 V. Wood, 37 L.J. Ch. 169; L.R. 6Eq. 9, Company's. Si . . . .131 in re, ex parte Warren, 36 L.J. Bankr. 15, Bankruptcy 3 . . , .42 Evans's Ca^, in re London, Hambiiigh and Con- tinental Exchange Bank, 36 L.J. Ch. 501 ; L.E. 2 Ch. 427, Company E 2 . .122 Evanturel v. Evanturel, 38 L.J. P.O. 41 ; L.E. 2 P.O. 462, Colony 1 . . .97 Eve's case, in re Imperial Land Credit Co., 37 L.J. Ch. 84i, Company's. 173 . . 145 Everard v. Kendall, 39 L.J. C.P. 234 ; L.R 5 G.V. iW, County Court \& . .208 Everitt V. Everitt, 39 L.J. Ch. 777 ; L.E. 10 Eq. 405, Voluntary Settlement, 9 . 606 Ewing V. Waite, L.K. 1 Eq. 440, Fr. in Eq. KK3 459 Excelsior, The, 37 L.J. Adm. 54 ; L.R. 2 A. ^ & E. 268, Shipping K 5 . . .551 Exeter, Bishop of, v. Marshall, 37 L.J. C.P. 331 ; L.R. 3 E: & I. App. 17, Church 2 . 86 Exeter, Corporation oi, v. Earl of Devon, L.R. 10 Eq. 232, iVffl%ai!jOT 3 . .381 Exeter Union, Guardians of, v. St. Thomas's Union, 39 L.J. M.C. 83 ; L. R.5 Q.B. 371, Poor 7 . . . . .428 Exhall Coal Co., in re, inreBleckley, 36 B. 449, Company G 34 . . • . .164 Exley T. IngUs, 37 L.J. Ex. 145 ; L.B. 3 Ex. 2i1 , Compositfon Deed 91 . . 181 Eyre v. Parker, Disney v. Crosse, L.R. 2 Eq. 692, Legacy 19 {Demonstrative) . . 328 Eyton V. Denbigh, Ruthin and Cofwen Rail. Co., 37 L.J. Ch. 669 ; L.R. 6 Eq. 14, Lands Clauses Aen I . . . .318 V. , and Riekman v. Johns, 38 L. J . Ch. 74 ; L.R. 6 Eq. 488, Lands CI. Act 72 . 318 V (No. 2), L.R. 7 Eq. 439, Lands Clauses Act, Eentcharge, Addenda 29 . 647 in re Eacliiri, 36 L.J. 2 Ch. 368, Composition Fachiri, ex parte, Bankr. 10; L.R. Deed, 107 . Fairfoot v. Chalwin, The Alice and The Rosita, 38 L.J. Adm. 20, Admiralty B 6 Fair Haven, The, 37 L.R. 1 A. & E. 67, Ad- miralty C 28 . Fairlie, The, 37 L.J. Adm. 66, Admiralty C 26 . . Fairlie V. Fenton, 39 L.J. Ex. 107; L.R. 5 Ex. 169, Principal and Agent, 12 . Faithful, in re, and in^re London, Brighton -and South Coast Rail. Co. L.R. 6 Eq. 325, Attorney 43 . . Falconer v. McKenzie, 36 L.J. Ex. 222 ; L.R. 2 Ex. 248, Costs at Law, 20 Fallows V. Slater, 39 L.J. Ch. 609, County Court, 37 • . - . Family Endowment and Annuity Society, in 182 11 14 14 . 466 36 200 210 ce, 39 L.J^ Ch. 306 ; L.R. 5 Ch. 118, Com- pany C 90 . . . .120 Company Qc 25 . . . . 163 Farhall v. Farhall, 38 L.J. Ch. 281 ; L.R. 7 Eq. 286, Bankruptcy 4 . . .40 Farington v. Parker, L.R. 4 Eq. 116, Power 8 433 Farnworth v. Hyde, 36 L.J. C.P. 33; L.E. 2 C.P. 204, Marine Insurance 27 .. 350 Farrall , v. Davenport, 36 L.J. Ch. 200 ; L.E. 3 Eq. 473, Pr. in Eq. II 17 . . .469 Farrer v. Close, 38 L.J. M.C. 132 ; 10 B. & S. 653 ; L.E. 4 Q-B. 602, Friendly Society, 9 272 Farrow v. Wilson, 38 L.J. C.P. 326; L.R. i C.F. 7H, Master and Servant, 13 . 361 Fearon v. Flinn, in re, L.R. 5 C.P. 34, Arbi- tration'D 6 {Setting aside Award) . . 25 Fearnside and Dean's case, in re Leeds Bank- ing Co., 35L.J. Ch. 75 ; L.E. 1 Eq. 225 ; (on App.) 35 L.J. Ch. 307 ; L.E. 1 Ch. 231, Company :S 15S , ... 143 Feather v. The Queen, 35 L.J. Q.B. 200, ' Patent, 27 . . . . . 414 Featherstonehaugh v. Lee Moor Porcelain Clay Co., 35 L.J. Ch. 84; L.R. 1 Eq. 318, Company C 45 . . . .114 'Feltham v. England, 36 L.J. Q-B. 14; 7 B. & S. 676 ; L.E. 2 Q.B. 33, Master and Servant, 13 . . . .362 Felton's Executors' case, in re East of England Bank, 36 L.J. Ch. 196; L.E. I Eq. 219, Company C 27 . . . .111 Felling and Eimington's case, in re Financial Corporation, 36 L.J. Ch. 695; L.E. 2 Ch. m, Company 'K Wi . . 134 Felix, The, 37 L.J. Adm. 48; L.E. 2 A. & K 27 S, Shipping A 12 . . ' . 5-12 Fenham, The, Owners of, v. Wake, L.E. 3 P.C. 212, Shipping, Lights, Addenda 46 i . 650 Fenton v. Queen's Ferry AVire Eopo Co. (No. 1), 38 L.J. Ch. 136 ; L.E. 7 Eq. 267, Attorney 14 . . ' .' .33 V. (No. 2), 38 L.J. Ch. 263, Pro- diKtion in Eq. 29 . . . . 490 Fenwick v. Schmalz, 37 L.J. C.P. 78 ; L.E. 3 C.P. 313, Shipping D 7 . . .546 . V. Bulman, L.R. 9 Eq. 165, Parties.^ . 404 , in the goods of, 36 L.J. P. & M. 54 ; L.R. 1 P. & D. 319, Will, Formalities 47 . 641 Ferguson v. Wilson, 3.6 L.J. Ch. 67 ; L.R. Ch. 77, Pr. inEq.Y 7 ■ . . 453 Fernandes' Executors' case, in re Commercial Bank Corporation of India and tlio East, L.E. 5 Ch. 314, Company F 86 . 15.S Fernie v. Young, 35 L.J. Ch. 523 ; L.E. 1 E. & I. App. 63, Pr. in Eq. {Trial of Fact) Y 2, 45 I Pr. in Eq. {Enrolment, New Trial) BB 7 45.i Feronia, The, 37 L.J. Adm. 60; L.E. 2 A. & E. 65, Shipping K 3 . . .561 Ferrar v. Commissioners of Sewers of London, 38 L.J. Ex., 173; (Ex. Ch.) 38 L.J. Ex. 102; L.E. 4 Ex. 221, Land Glauses Act 28,313 Ferricr v. Jay, 32 L.J. Ch. 686; L.E. 10 Eq. 550, Power 14 . ... .433 Ferrior, in re, Carrow v. Ferrior, and Dunn V. Ferrior, see Carrow v. Ferrior.. d E 2 670 TABLE OF CASES. Few V. Perkins, 36 L J. Ex. 54 ; L.K: 2 Ex. 92, Lease 13 {Forfeiture) . Field, in re, Baker v. Waterton, 37 L.J. Cj.B. 65 ; 9B. & S. 23, L.K. 3 Q..B. 173, County Court 34 . Field V. Carnarvon and Lamberris Kail. Co. 37 L.J. Ch. 176; L.K. 5 Eq. 190, Land Glauses Act 15 . V. Magaw, L.B. i C. P. 660, Dr. # Cr. i 220 Fielden v. Slater, 38 L.J. Ch. 379 ; L.K. 7 Eq. 523, Injunction 27 Pr. in % V 4 . Figlia Maggiore, (The, 37 L.J. Adm. 52 . L.E. 2 A. & E. 106, Shipping A 11 Financial Corporation v. British and North Somerset Eail. Co., L.K. 3 Eq. 422, Pleading in Eg^. 20 . T. Lawrence, 38 L.J. C.P. 305 ; L.K, 4 C.P. 731, Composition Deed 120 . V. Price (China Steamship, &c. Gar- nishees), L.R. 4 C.P. 155, Attachment 3 , in re, ex parte Holmes, Adams and Pritchard, Fieling, Rimmington and King, 36 L.J. Ch. 87 ; (L.JJ.) ibid. 695 ; L.R. 2 Ch. 714 Company E 102 . , Claim of, in re N^tal Investment Co., 37 L.J. Ch. 362 ; L.R. 3 Qh. 355, Company G41 Financial Insurance Co., in re, 36 L.J. Ch. 687, Company F 60 Finch V. Finch, 36 L.J. P. & M. 78 ; L.R. i P. &D. 371, ProtefeH 5 V. Lane, L.R. le Eq. 601, JTfflL 11 . Finlason v. Tatlock, 39 L.J. Ch. 422; L.P. 9 Fq. 258, Will, Construction H 23 Will, Construction M 5 . Finney v^ Finney, 37 L.J. P. & M. 43; L.R. 1 P. & D. 483, Divorce 114 . V. Forwood, 35 L.J. Ex. 42 ; 4 H. & C. 33 ; L.R. 1 Ex. 6, Pr. at Law F 19 T. Godfrey, 39 L.J. Ch. 162; L.R. 9 Eq. 356, Pr. in Eg. G 5 . Fisher v. Gilpin, 38 L.J. Ch. 230, Trust, C 7 . 690 Fisk V. Attorney General, L.R. 4 Eq. 621, Mortmain 15 Fitzgerald v. Fitzgerald, 37 L.J. P.C. 44; L.E. 2 P.C. 83, Covenant 1 V. , 38 L.J. P. & M. 14 ; L.R. 1 P. & D. 694, Divorce 37 . Fitzgerald's case, in re Beverley Election, 39 L.J. Q.B. 1; 10 B. & S. 813; L.R. 8 Q,.B. 1, Parliament 8 . . . and Flint's case, in re Beverley Election Petition, 39 L.J. Ex. 17; L.K. 5 Ex. 21, Parliament 9 . . . Fitzhardinge v. Pritchett, 36 L.J. M.C. 49 ; 8 B. & S. 216 ; L.K. 2 aS. 135, hate 17 . Fitzpatrick v. Bourne, 37 L.J. Q.B. 265 ; 9 B. & S. 157 ; L.K. 2 aB. 446, Composition Deed 38 . -Flamank v. Simpsoh, 36 L.J. Eccl. 4 ; L.R. 1 A. & E. 276, Church 36 . V. , and Martin v. Mackonoehie, 37 L.J. Eccl. 17; L.R. 2 A. & E. 116, Chilroh 29 . . . . .92 : 325 210 310 288 453 542 426 184 30 . 134 . 166 . 155 482 626 620 629 238 440 450 378 211 230 ' 394 . 395 517 173 93 Flanagan v. Great Western Eail. Co., 38 L.J. Ch. 117 ; L.R. 7 Eq. 116, Company C 16 . Specific Performance 2 . . . Fleeming v. Howden, L.R. 1 Sc. App. 372, Scotch Law 16 . Fleet V. Perrins, 37 L.J. a.B. 233 ; 9 B. & S. 575 ; (Ex. Ch.) 38 L.J. a.B. 267 ; L.R. 4 a.B. 60q, Baron ^ Feme 11 Pr. at Law 26 . Fleming, ex parte, in re National Provincial Life Assurance Society, 39 L.J. Ch. 260 ; L.R. 9 Eq. 306, Company C 76 . : Flemon's Trusts, in re, L.R. 10 Eq. 612, Land Clauses Act 65 . Fletcher v. Alexander, 37 L.J. C.P. 193; L.E. 3 C.P. 376, Shipping 14 . .550 V. Eylands, 35 L.J. Ex. 164; 3 H. & C. 674 ; 4 H. & C. 263, Negligence 11 . Fletcher's case, in re Saloon Steam-packet Co. 37 L.J. Ch. 49, Company E 16 . Fleur de Lis, The, L.R. 1 A. & E. 49, Admi- ralty D 10 (Costs) . . , Flint, ex parte, in -re Beverley Election Peti- tion, 39 L.J. Q.B. 1 ; 10 B. & S. 813, Par- liament 9 . . Flor de Funchal, The, 35 L.J. Adm. 119, ping N 5 . Flora, The, 36 L.J. Adm. 14; L.R.'l A. & E. 45, Admiralty C 11 , The, 35 L.J. Adm. 15, Shipping H 5 . Flower, ex parte, in re London, Brighton and South Coast Rail. Co., 36 L.J. Ch. 193 ; L.R. 1 Ch. 699, Lands Clauses Act 82 Floyer v. Bankes, 3 De G. J. & S. 306 ; L.E. 8 Eq. 1 15, Power 6 (Bemoteness) . Property Tax . . . _ . FJynn v. Eobertson, 38 L.J. C. P. 240 ;'L.R. i C.P. ■S2i, Arbitration 10 . Foley, Lord, v. Commissioners of Inland Eevenue, 37 L.J. Ex. 109; L.E. 3 Ex. 263, Stamp Duty 6 V. United Fire, &c. Insurance Co., 39 L.J. C.P. 206; L.R. 5 C.P. 166, Manm Insurance 13 Foot, in re, Johnson v. Mills, 37 L.J. C.P. 57 ; L.R. 3 C.P. 22, Ejectment 3 . Forbes v. Eden, L.R. 1 Sc. App. 668, Scotch Episcopal Church, Addenda 43 Forbes and Judd's case, in re Heyford Iron- works Co., 39 L.J. Ch. 422 ; L.E. 5 Ch. , 270, Company E 39 V. Steven, Mackenzie v. Forbes, 39 L.J. Ch. 486; L.E. 10 Eq. 178, Legacy Duty 1 Ford V. Coteswortlij 38 L.J. Q.B. 52 ; 9 B. & S. 669 ; L. E. 4 Q. B. 127 ; (Ex. Ch.) ii9 L.J. Q.B. 188; 10 B. & S. 991; L.E. 5 G.B. 544, Shipping G 1 . V. Ford, 36 L.J. P. & M. 86, Divorce 124 .... V. Harrington, 39 L.J. C.P. 107 ; L.E. 5 C.P. 282, Parliament 45 . V. Olden, 36 L.J. Ch. 651; L.E. 3 Eq. 461, Voluntary Deed li Ford's Settled Estate, in re, I.E. 8 Eq. 309, Settled Estates 8 '. , . . 536 109 562 532 67 441 118 317 383 123 14 396 555 13 650 320 432 491 26 568 348 246 649 126 330 548 238 400 607 TABLE OF CASES. 677 PAGE Foi-dham v. London, Brighton and South Coast Eail. Co., 37 L.J. C.P. 176; .L.E. 3 C.P. 368; (Ex. Ch.) 38 L.J. C.P. 324: L.R. i C.P. 619, Negligence Si . 387 Foreman v. Free Fishers of Whitstable, 38 L. J. C.P. 345 ; L.E. 4 E. & I. App. 266, Tolls 2 . . . . .582 Forrer v. Nash, 35 B. 167, Vendm- . 327, Probate 8 . 475 Free Fishers of Whitstable v. Foreman, 37 L.J. C.P. 305; L.E. 3 C.P. 578. Tolls 2 . 582 Freedom, The, 38 L.J. Adm. 26 ; L.E. 2 A. & E. 346, ^*M>a% B 6 . . .12 Freehold Land and Brickmaking Co., in re, in re Massey, 39 L.J. Ch. 492; L.E. 9 Eq. 367, Company F 93 . . .158 Freeland v. Pearson, 36 L.J. Ch. 374 ; L.E.- 3 Eq. 658, Power 1 . . .432 V. , L.E.' 7 Eq. 246, Vendor ^ P. 16 601 Freeman v. Bowen, 35 B. 17, Forfeiture 1 . 266 T. Jeffries, 38 L.J. Ex. 116; L.E. 4 Ex. 189, Action 1 ... 2 V. Pope, 39 L.J. Ch. 148 ; L.E. 9 Eq. 206 (on App.O 39 L.J. Ch. 689 ; L.E. 5 Ch. 538, Voluntary Settlement 2 . . 606 V. Whitbread, 35 L.J., Ch. 137; L.E. 1 Eq. 266, Tenant for Life 6 . . ,678 Freestone v. Casswell, and Goldwin v. Stock- well, 38 L.J. M.C. 122; lOB. &S. 361; L.E. 4 Q.B. 619, Highway 14 . . 280 French v. Temple, 35 B. 376, Pr.iiiEq. 11 18 468 , in re, 37 L.J. Ch. 537 ; L.E. 3 Ch. 317, Litnacy 9 . . , . 342 Frend v. Buckley, 39 L.J. Q.B. 90 ; 10 B. & S. 667, 973, and 976; L.E. 5 Q.B. 213, Vendor and Purchaser 27 . . . 602 Friedrich, The, and City of Antwerp, 37 L.J. Adm. 25 ; L.E. 2 C.P. 25, Admiralty B 1 . 11 Frith V. Guppy, 36 L.J. C.P. 45 ; L.E. 2 C.P. 32, Pr. at Law 49 {Lord Mayor's Court) . 443 -Frost, in re, 39 L.J. Ch. 808; L.Ef 6 Ch. 699, Lunacy 7 • . . . 342 V. Knight, 39 L.J. Ex. 227 ; L.E. 5 Ex. 322, Marriage 3 {Breach) . . . 354 London, Brighton and South Coast Eail. Co., 39 L.J. Ex. 54; L.E. 5 Ex. 201, Costs 25 . . . . . .201 Frou-Frou case, Wood v. Chard, and Wood v. Wood, L.E. 10 Eq. 193, Copyright 7 . 196 Fry V. Chartered Mercantile Bank of India, London and China, 35 L.J. C.P. 306 ; H. & E. 858 ; L.E. 1 C.P. 689, Ship. A 6 .541 Fryer v. Bodenham, 38 L.J. C.P. 185 ; L.E. 4 C.P. 529, Parliament 46 . . . 400 V. Davies, 35 L.J. Ch. 666 ; L.E. 1 Ch. 390, Pr. in % BB 6 . . . 466 Fuentes v. Montis, 37 L.J. C.P. 137; (Ex. Ch.) 38 L. J. C.P. 96 ; L.E. 4 C.P. 93, Factors' Actl . . ' . . .259 Fulcher, in re, L.E. 1 Ch. 619, Composition Deed 50 . . . . ■ . 175 678 TABLE OF CASES. PAGE Fuller V. Chamier, 35 L.J. Ch. 772 ; L.E. 2 Eq. 682, iVUl, Constr. I 14 . .622 Furniss v. Midland Eail. Co., L.E. 6 Eq. 4-73, Lands Clauses Act 12 . . . 310 Fife's ease, in re Joint-Stock Discount Co., 38 L.J. CIi. 725 ; L.E. 4 Ch. 768, Company/ E 99 -. ~ . . . ,133 Fytche v; Fytche, L.E. 7 Eq. 494, Election 2 . 247 Gage V. Collins, 36 L.J. C.P. 144 ; L.E. 2 C.F.3SI, Counti/ Court 36. . .210 Gainsford v. Freeman, 35 L.J. C.P. 92; H. & E. 352 ; L.E. 1 C.P. 129, Parliament 28 . 398 Galli v.. Mongruel, 35 L.J. C.P. 88 ; L.E. 1 C.P. 46, Practice at Law 4 . . .438 Galloway v. Mayor, &c., of L6ndon, 36 L.J. ' vCh. 978; L.E. 4 Eq. 90, .(Attorney 29 . 35 V. , same v. Metropolitan Eail. Co., 2DeG.J.&S. 213, and2DeG. J. &S. 639; (on App.) 35 L.J. Ch. 477 ; L.E. 1 E: & I. A-^-^. 3i, Puhlic Body I . . .491 Galsworthy, ex parte, re Northern Assam Tea Co., 39 L.J. Ch. 465; L.E. 5 Ch. 644, Company F 71 . . . . 156 Gaudy v. Jubber, 9 B. & S. 15 n. to Brown v. Bussell, Nidsance 12 . . ' . 389 Ganges, The, 38 L.J. Adm. 61 ; L.E. 2 A. & E. Z1(i,. Shipping T 2 . . .658 Gann v. Whitstable Free Fishers, 35 L.J. C.P. 29, Tolls 1 . . . .582 Garden v. Bruce, 37 L.J. C.P. 112; L.E. 3 G.V. 300, Bills of Exchange 31 . . 67 Gardiner v. Enlior, 35 B. 549, Attorney 27 35 Gardiner v. Cachar Co., 36 L.J. Ch. 432, County Court 28 . . . 209 Gardner v. London, Chatham and Dover Eail. Co., 36 L.J. CJi. 323 ; L.E. 2 Ch. 201, Bail. 35 a06 V. , ex parte Grissell, L.R. 2 Ch. 385, Railway 46 . . . . .507 V. Sharp, L.E. 8 Eq. 501, Bankrttptcy 2. 40 Garnott v. Backhouse, 37 L.J. Q.B. 1 ; 8 B. & S. 490 ; L.E. 3 Q.B. 30, Salman 4 . 529 . V. . and EoUe v. White, 37 L.J. Q.B. 228 ; 10 B. & S. 306 ; L.E. 3 Q.B. 699, Salmon 8 . . , . . 630 Garrett v. Messenger, 36 L.J. C.P. 337 ; L.E. 2 C.F.5S3, Music, and Bancdng 2 . . 380 V. Salisbury and Dorset Junction Eail. Co., L.E. 2 Eq. 358, Railway 7 •* . .501 Garth V. Townsend, L.E. 7 Eq. 220, Power 9. . 433 GartnessIroD Co., in re, ex parte Elphinstone, Lord, 39 L.J. Ch. 884; L.E. 10 Eq. 412, Company G 23 . . . .162 Gaskiu v. Eogers, L.R. 2 Eq. 284, Annuity 12 20 Administration 22 (^Marshalling) . . 7 Gaslight Improvement v. Terrell, 39 L.J. Ch. 725 ; L.E. lO^Eq. 168, Company C 25 . Ill Gatehouse v. Gatehouse, 36 L.J. P. & M. 121 ; L.E. 1 P. & D. 331, Divorce 38 . 230 Gautret v. Egerton, 36 L.J. C.P. 1 ; L.E. ,91 2 C.P. 371, Negligence 13 . . . 383 Gayford v. Moffatt, L.E. 4 Ch.a33, Easement 6 245 Gaynor, in the goods of, 38 L.J. P. & M. 79 ; L.E. 1 P. & D. 723, Executor 8 . .256 PAGE Geake V. Jackson, 36 L.J. C.P. 108, Sale 12 . 527 Gee V. Liddell (No. 1), 35 B. 621, Tenant fm Life 17 579 V. (No. 2), 36 B. 829, 8et-oflO . 835 V. (No. 3), 35 B. 631, Trust A 11 . 687 — ^ x. (No. 4), 35 L.J. Ch. 640 ; 35 B. , 658 ; L.E. 2 Eq. 341, Will M 9 . .629 General Bank of Agriculture and Public Works, in re, 38 L.J. Ch. 168, Company C 6. 116 General Company for the Promotion of Land - Credit, in re, ex parte Bos and Dubourtfq, and ex parte the International Land Credit Co., 39 L.J. Ch. 737; L.E. 5 Ch. 363, Com- pany'S 39 . . . . .153 General Exchange Bank, in re, ex parte Preston, 37 L.J. Ch. 618 ; L.E. 4 Eq. 138, Company A 5 . . . . 107 V. Horner, 39 L.J. Ch. 393 ; L.E. 9 Eq. 480, Company C 16 . . .109 General Estates Co., in re, ex parte City Bank, L.E. 3 Ch. 758, Company G 36 . 164 Hastie's case, 38 L.J. Ch. 43; (L.JJ.) ibid. 233 ; L.R. 4 Ch. 274, Company E 182. 146 ex parte Wright and Gamble, L.E. 8 Eq. \%3, Company's ^1 . . . .159 General International Agency Co., in re, 36 B, 1, Company F 22 . . .151 in.re. Chapman's case, L.R. 2 Eq. 567, Company El Gfeneral Provident Assurance Co., in re, 38 L.J. Ch. 320, Company C 40 , in re, Bridger's case. L.E. 9 Eq. 74 ; (on App.) 39 L.J.' Ch. 478; L.E. 5, Ch. 305, Company's m .... , in re. Cross's case, 38 L.J. Ch. 583, Com- pany E 1 16. ... Pr. in Eq. B 3 (Affidavits) General EoUing Stock Co., in re, ex parte Alliance Bank, 38 L.J. Ch. 181 ; (L.JJ.) ibid. 714; L.E. 4 Ch. 423, Bai of Exchange 37 in re. Chapman's case, 35 B. 207 ; L.E. 1 Eq. 346, Co^ipany G 55. . General Steam Navigation Co. v. British and Colonial Steam Navigation Co., 37 L.J. Ex. 194; L.R. 3 Ex. 330; Ex. Ch. 38 L.J. Ex. 97 ; L.E. 4 Ex. 238, London C Shipping Q 6 . . , . . V. Hedley — The Velocity, 39 L.J. Adm. 20 ; L.E. 3 P.C. 44, Shipping E 8 . Generous, The, 37 L.J. Adm. 37 ; L.R. 2 A. & E. 57, Admiralty A 24 . George and Wife v. SkivingtoH, 39 L.J. Ex. 8 ; L.E. 8 Ex. 1, Negligence 26 George v. George (No. 1), 38 B. 350, Exor. 23 258 V. (No. 2), 36 B. 382, Exor. 12 . 256 V , 37 L.J. P. & M. 17, mtiorce 81 T. , 38 L.J. P. & M. 34 ; L.R. 1 P. & D. 554, Bivorce 91 V. The Queen, L.E. 1 P.C. 389, Adm. T) 2 Gerard v. Lewis, 36 L.J. C.P. 173 ; L.E. 2 C.P. 305, Behtor and Creditor 3 . . 220 Gcrmania, The, .S7 L.J. Adm. 59, Ship. E 12. 548 Ghose V. Ensuff, 37 L.J. P.O. 16, Privy Council 8 . . , . .471 . 121 113 145 137 446 167 340 856 647 11 385 235 235 14 TABLE OF CASE,?; 679 (F.C. of Ch. 366, 57 61 490 114 41 443 111 120 220 329 259 '. 620 269 LJ. Q.B. 4H. 277 Gibbins v. Eyden, 38 L.J. Ch. 377 ; L.E. 7 Eq. 371, Administration 8 . . Baron and 'Feme 7 {Curicsy) Gibbs v..Hajding, 38 L.J. Ch. 604 App.) 39 L.J. Ch. 374; L.R. 5 Baron and Fenrn 43 V. Ross and Eoss v. Gibbs, 39 L.J, Ch. 61 ; L.H. 8 Eq. 522, ProdncHon 28 Gibbs and West's case, in re International Life Assurance Society, 39 L.J. Ch. 667 L.R. 10 Eq. 312, Company C 42 . Giblin v. McMuUen, 38 L.J. P.C. 25 ; L.R. 2 P.C. 317, Bankruptcy 10 Fr. at Law 44 (Noiisuii) . Gibraltar and Malta, Bank of, in re, 35 L.J Ch. 49; 1 L.R. Ch. 69, Contract 26 Gibson, ex parte, in re Smithr Jinight & Co., 38 L.J. Ch. 673; L.R. 4 Ch. 662, Company C 88 . ' Debtor and Creditor 8 . , in re, Mathews v. Eoulsham, 35 L.J. Ch. 596 ; L.R. 2 Eq. 669, Legacy 28 , in the goods of, 35 L.J. P. & M. 114 ; L.R. 1 P. & D. 105, Executor 33 . V. Fisher, 37 L.J. Ch. 67 ; L.R. 5 Eq. 61,- Will, Construction H 26 — - V. HoUand, 35 L.J. C.P. 5 ; H. & E, S ; L.R. 1 C.P. 1, Frauds, Stat, of 11 T. Mayor, &c., of Preston, 39 Q.B. 131; 10 B. &- S. 942; L.R. 5 218, Highway 2 . GiddingsT. Penning, 35 L.J. Ex. 191 ; & C. 498 ; L.R. 1 Ex. 325, Compo. Deed 39 174 Giffard v. Williams, 38 L.J. Ch. 597 ; L.R. 8 Eq. 494 ; 39 L.J. Ch. 735, Partition 2 , V. , 39 L.J. Ch. 735 ; L.R. 5 Ch. 546, Evidence 19 {DocuTnents) Gilbert's case, in re National Provincial Marine Insurance Co., 39 L.J. Ch. 837 ; L.E. 5 Ch. 559, Company G 17 . Giles, in re, ex parte Mauritz, 39 L.J. Bankr. 56 ; 5 L.R. Ch. 779, BankntptoyX^ Gillett V. Gane, 39 L.J. Ch. 818 ; L.R: 10 Eq. 29, Win, Construction G 6 . Gillham v. Harris, 35 L.'J. C.P. 101 ; H. & R. 328; L.R. 1 C.P. 151, Parliament 41 . Gilliat V. GiUiat, 39 L.J. Ch. 142 ; L.R. 9 Eq. 60, Auction 2 . Gill V. Bagshaw, 35 L.J. Ch. 842 ; L.R. 2 Eq. 746, Will, Construction G 3 . T. Barron, 37 L.J. P.C. 33 ; L.R. 2 P.C. 157, Colony 12 . . in the goods of, 39 L. J. P. & M. 6 ; L.R. 2 P. & D. 6, WUl, Formalities 21 Gilpin V. Benjamin and Cohen, 38 L.J. Ex. 50 ; L.II. 4 Ex. 131, Arrest 8. . Ginger v. Ginger, 35 L.J. P. & M. 2 ; L.R. 1 P. & D. 37, Divorce 66 . V. , 35 L.J. P. & M. 93, Divorce 142 240 Giraud t. Paterson, 38 L.J. P.C. 65, Privy CouncU 13 . . . . .472 Gitana, The— The Esk, 38 L.J. Adm. 33 ; L.E. 2 A. & E. 350, Skipping E 11 . 548 Gladman v! Johnson, 36 L.J. C.P. 153, Negli- gence 8 . . • • ■ 382 Gladwell v. Turner, 39 L.J. Ex. 31 ; L.R. 5 Ex. 59, Bill of Exchange 18 404 . 252 109 45 617 399 38 616 638 29 234 65 L.E. 1 L.E. 2 re, L.E. 548 317 163 . 176 218 28 Glaholm v. Barker, 35 L.J. Ch. 259 : Ch. 223, and see 35 L.J. Ch. 657 Eq. 598, Shipping E 13 . Glebe Lands of Great Yeldliam, in 9 Eq. 68, Lands Clauses Act 57 Gledstane, ex parte, in re Commercial Bank Corporation of India and the East, 36 L.J. Ch. 333; L.E. 1 Ch. 638, Company's 19 . 157 Company G 28 {Set-off) Glen, ex parte, in re Glen, 36 L.J. Bankr, 51 ; L.E. 2 Ch. 670, Compo. Deed 60 Glover v. London and South-Western Eail. Co., 37 L.J. Q.B. 57; L.R. 3 Q.B. 25, Damages 10 V. Moore, 39 L.J. Ch. 98, Army 2 Godfray V. Godfray, 35 L.J. P.C. 39, Colony 25 102 Godwin v. Brind, L.E. 5 C.P. 299, Damages 6 217 V. Francis, 39 L.J. C.P. 121 ; L.E. 5 C.P. 295, Frauds, Stat, of, 11 . . 270 Principal and Agent 8 . . . 466 V. Stone, 38 L.J. Ex. 153 ; L.E. 4 Ex. 331, Sheriff 2 .... Golding V. Stocking, Freestone v. Casswell, 38 L.J. M.C. 122 ; 10 B. & S. 348 ; L.R. 4 Q.B. 516, Highway 13 . Goldsmid v. Tunbridge Wells Improvement Commissioners, 55 L.J. Ch. 88 ; (on App.) ibid. 382 ; L.R. 1 Ch. 349, Nuisance 8 Golondrina, The, L.R. 1 A. & E. 334, Ship- ping Til. . ■ . . Goodacre v. Smith, 36 L.J. P. & M. 43; L.R. 1 P. & D. 359, Probate H 9 . Goodford V. Stonehouse and Kailswortli Rail. Co., 38 L.J. Ch. 307, Parties 6 Goodworth, in the goods of, 37 L.J. P. & M. 49, Execution 7 (According to Tenor) Goodvear v. Mavor, &c., of Weymouth, 35 L.J. C.P. 12 ; H. & E. 67, Contract 12 . Gordon's Trusts, in re, 37 L.J. CK. 408 ; L.E. 6 Eq. 335, Trust E 9 Gore and Durant's case, in re Patent Carriage Co., L.E. 2 Eq. 349, Company E 32 Gotch V. Foster, L.E. 5 Eq. 311, Legacy 35 . 330 Gould V. Gould, and Gould v. Dummet, in re Eeece's Estate, 35 L.J. Ch. 794 ; L.R. 2 Eq. 609, Costs in Equity 36 {Lower Scale) . 205 Gouldwell, in re, ex parte Squire, 38 L.J. Bankr. 13 ; L.R. 4 Ch. 47, Bankcy. 103 . Gower's case, in re London and Provincial Starch Co., L.E. 6 Eq. 77, Company E 112 Grabowski's Settlement, in re, 37 L.J. Ch, 926; L.R. 6 Eq. 12, Trust B 11 Graham, ex parte, in re Eobinson, 36 L.J. Q.B. 203, Arrest 5 . Graham, in re, an infant, 39 L.J. Ch. 724 L.E. 10 Eq. 530, Infant'^, . Pr. in F^.YY 2 {Ward of Court) , in re, L.E. 1 Ch. 175, Bankrupt 72 , V. Graham and Griffith, L.E. 1 P. & D, 711, Divorce 104 . V. Johnson, 38 L.J. Ch. 374; L.E. 8 Eq. 36, Bond {Assignment, Equities) . 71 538 279 . 389 568 482 404 255 190 5.93 '". 125 55 136 589 28 284 462 52 237 680 TABLE OF CASES. PAGE Graham v. Pocock, 39 L.J. P.O. 38 ; L.E. 3 P.O. 345, Colony 17 . ■ , . V. Eobinson, L.R. 2 Ci.B. 387, Arrest 6 . Grant v. Bridger, 36 L.J. Ch. 377; L.R. 3 Ec[. 347, Will, Formalities 53 V. Grant, 39 L.J. C.P. 140 ; (Ex. Ch.) ibid. 272 ; L.E. 5 C.P. 727, Will G 13 V. , 38 L.J. P. & M. 55 ; L.R. 1 P.' & D. 654, Prokite A 2 . y. (No. 2), 39 L.J. P. & M. 17; L.R. 2 P. & D. 8, Will, Construction G 12 V. Local Board of Oxford, 38 L.J. M.C. 39; 9B.&S. 900"; L.R. lOaB. 9,5atell 616 Gratwick's Trusts, in re, 35 B. 215; L.R. 1 Eq. 177, WiU, Construction D 1 . Marriage Settlement 7 . . Gravatt v. Tann, in re Tann, Tann v. Tann L.R. 7 Eq. 434, Partition 14 V. (No. 2), in re Tann, Tann v. Tann, 38 L.J. Ch. 459 ; L.R. 7 Eq. 436, Adminis- tration 29 . . ' . Graves, in re, ex parte Walker, 39 L.J. a.B. 31 ; 10 B. & S. 680, Copyright 4 V. Ashford, 36 L.J. C.P. 139 ; L.E. 2 C.P., 410, Copyright 6 {JPhotographs) , ex parte, in re Prince, L.R. 3 Ch. 642, Bankruptcy 77 {Arrest) Gray v. Adamson, 35 B. 383, Costs in Eq. 8 . V. Gibson, 36 L.J. C.P. 99; L.R. 2 C.P. 120, Marine Insuraiice 11 . ■ v. Johnston, L.R. 3 Se. App. 1, BanJc. 9 101 28 642 617 474 617 612 356 405 195 . 196 52 203 347 41 519 82 . 610 . V. Lewis, L.R. 8 Eq. 626, Company 51. 115 . . V. Pearson, L.R. 5 C.P. 668, Action 9 . 4 V. Raper^-H. & E. 794; L.E. 1 C.P. 694, Company F 101 . . . . l69 V. TurnbuU, L.E. 2 Sc. App. 53, Pr. in Eg. E 6 {Appeal) . . ' . .448 V. West, 38 L.J. Q.B. 78; L.E. 4 Q.B. 175, Costs at Law 12 ' . . .199 V. Wilson, 35 L.J. C.P. 123; L.E. 1 C.P. 50, Arbitration 3 . . .24 , in the goods of, 39 L.J. P. & M. 42, Will, Formalities 68 . . . 642 Grayburn v. Clarkson, 37 L.J. Ch. 660 ; L.E. 3 Ch. 605, Executor 21 . . . 257 Great Eastern, The, 36 L.J. Adm. 15; L.R. 1 A. & E. 384, Admiralty A 2 . .9 , L.E. 2 A. & E. 88, Shipping N 3 .564 Great Eastern Bail. Co. v. Haughley, Over- seers of, 36 L.J. M.C. 229; 7 B. & S. 624; L.E. 1 Q;B. 666, Bate 27 . . . 518 Great Northern Eail. Co. v. Taylor, H. & E. 471, Carrier 27 . . . .80 V. Turner, 35 L.J. C.P. 210, Carrier 26 . 80 , ex parte, L.E. 9 Eq. 274, Parliament 3 394 Great Pacific, The, 38 L.J. Adm. 14; L.E. "2 A. & E. 381 ; (on App.) 38 L.J. Adm. 45 ; L.E. 2 P.O. 616, Shipping B 8 and 9 . 546 Great Western Eailway Co. v. Attorney . General, 35 L.J. Ex. 123 ; L.R. 1 E. & I. App. 1, Bevenue i . . . . 523 . V. Badgworth, Overseers of, 36 L.J. M.C. 33 ; L.E. 2 Q.B. 251, Bate 28 . . 619 V. Bennett, 36 L.J. Q.B. 133 ; L.R. 2 E. & I. App. 27, Bailway 65 . . 509 81 Great Western Railway Co. v. Pontypridd Union^ 38 L.J. M.C. 93, Bate 29 . y. Redmayne,L.R. 1 C.P. 329, Carrier 34; V. Rous, 39 L.J. Ch. 363 ; L.R. 4E. & I. App. 650, Way 1 . V. Sutton, 38 L.J. Ex. 177; L.E. 4 E. & I. App. 226, Carrier 31 Greaves, or Graves, in re, ex parte Walker, 39 L. J. Q.B. 2 1 ; 10 B. & S. 680, Copyright 4 195 , ex parte, in re Greaves, L.E. 6 Ch. 326, Composition Deed 56 . . _, .176 Grech v. Oram, 39 L.J. Ch. 126, Injunction 48 291 Greeu v. Claydon, 37 L.J. C.P. 226 ; L.E. 3 C.P. 511, Vendor ^ Purchaser 25 . V. Ingham, 36 L.J. C.P. 236 ; L.E. 2 C.P. 526, Bankruptcy 66 . . V. Wynn, 38 L.J. Ch. 76 ; (L.G.) ibid. 220 ; L.E. 4 Ch. 204, Principal and Surety 10 , in re, and in re Copeland, in re Joint-Stoek Coal Co. 38 L.J. Ch. 429, Company F 26. . Greenberg V. Ward, 36 L.J. C.P. 316 ; L.E. 1 G, P. li&5, Composition Deed iO Greene's Settlement, in re, 36 L.J. Ch. 252 ; L.E. 1 Eq. 283, Presumption 1 Greenslade v. Darby, 37 L.J. Q.B. 137; 9 B. & S. 428 ; L.R. 3 Q.B. 421, Church 7 . Gregg, in re, in re Prance, 39 L.J. Ch. 107; L.E. 9 Eq. 137, Attorney 13 Greig, in the goods of, 35 L.J. P. & M. 113 L.E. 1 P. & D. 72, Probate B 30 . Grenville-Murray v. Earl of Clarendon, 39 L.J. Ch. 221 ; L.E. 9 Eq. 11, PI. in Eq. 2 . Public Service .... Greenhalgh v. Bates, 39 L.J. P. & M. 44 ; L.E. 2 P. & D. 47, Probate B 12 . Greenway v. Hockin, 39 L.J. C.P. 103 ; L.R. 5 C.P. 235, Parliament 24 . Greenwich District Board of Works v. Mauds- lay, 39 L.J. Q.B. 206 ; L.E. 5 Q.B. 397, Way 4 . . . . Greenwood, ^ ex parte, in re Hadfield Patent Case and Package Co., 3 De G. J. & S. 603, Company G 9 Greenwood's Estate, in re, 39 L.J, Ex. 30 ; L.E. 4 Ex. 327, Jjcgacy Duty, 12 . Greig v. University of Edinburgh, L.E. 1 Sc. App. 348, Bate 15 . Gresham v. Price, 35 B. 43, Admon. 28 Gresty y. Gibson, 36 L.J. Ex. 74 ; 4 H. & C. 28 ; L.R. 1 Ex. 112, Compo. Deed 2i~ . Grey v. West, 9 B. & S. 196 and 11 B. & S. 182, Costs at Law 12 Grice v. Kenrick, 39 L.J. Q.B. 176, Auction 5 Grieve v. Grieve, 36 L.J. Ch. 932 ; L.E. 4 Eq. 180, Will, Construction I 26 . Griffin v. Brady, 39 L.J. Ch. 136, Costs 24 . Compromise 2 . V. Morgan, L.E. 4 Ch. 351, Pr. in Eg. 117 .... . V. Weatherby, 37 L.J. Q.B. 280 ; 9 B. & S. 726 ; L.E. 3 Q.B. 753, Stamp 10 ' Bill of Exchange 1 . ' . Griffiths v. Braoewell, 35 B. 43, Partner 3 Griggs V. Gibson, Maynard v. Gibson, 35 L.J. Ch. 457 ; L.R. 1 Eq. 686, Baron ^F.29 . 602 51 469 162 174' 463 87 477 423 497 . 476 397 610 161 332 516 8 171 199 38 624 204 185 458 569 62 406 6Q TABLE 0^ CASES. 68l 648 540 FA.QK Griggs r. Gibson, Maynard v. Gibson (No. 2), 35 L.J". Ch. 458, Power to charge Portions, AddenUa 36 . , , , Grill V. General Iron Screw Colliery Co., 3n L.J. C.P. 321 ; L.R. 1 CP! 600 ; (Ex. Ch.) 37 L.J. C.P. 205 ; H. & R. 654 ; L.R. 3 C.P. 476, Skipping A 1 . Grissell v. "Bristowe, 37 L.J. C.P. 89 ; L.R.' 3 C.P. 11 2 : (Ex, Ch. ) 38 L. J. C.P. 1 ; L.R. 4 C.P. 36, Stock Exchange 1 . .572 V. Money, 38 L.J. Ch. 312, Pr. in Eg. K K 2 . . . . .459 V. Swinhoe, L.R. 7 Eq. 291, Election 6 . 247 , ex parte Gardner v. London, Chatham and Dover Rail Co., L.R. 2 Ch. 385, Judg- ment 10 . Grissell's case, in re Overend, Gurn§.T & Co., 36 L.J. Ch. 752; L.R. ICh. 528, Company E46 . . . . Groome, ex parte, in reGroome's Trust Deed, 3 De G. J. & S. 249, Gompo. Seed, 104 Grundy, in the goods of, 37 L.J. P. & M. 21 ; L.R. 1 P. & D. 459, Probate B 26 . Grunwell t. Garner, 39 L.J. Ch. 77 ; L.R. 8 Eq. 355, Pr. in Eg. 11 9 . Gryll's Trusts, in re, L.R. 6 Eq. 589, WUl H 16, WiUB^i Guardhouse v. Blackburn, 35 L.J. P. & M. 116; L.R. 1 P. & D. 109, Will, Form. 2 . Guardians of the East Loudon Union v. Metropolitan Rail. Co., L.R. 4 Ex. 309, Lands Clauses Jot, 38 . Guardians of Exeter Union v. St. Thomas's Union, 39 L.J. M.C. 83 ; L.R. 5 Q.B. 371, Poor 7 ... Guardians of Henley, Reg. on prosecution of, V. Abingdon Union, 39 L.J. M.C. 153 ; L.R. 5 Q.B.'406, Poor 13 . Guardians of Machynlleth Union r. Overseers of Pool, L.R. 4 Q.B. 592, Poor 11 . Guest V. Cowbridge Rail. Co., 37 L.J. Ch, 909 ; L.R. 6 Eq. 619, Judgment 1 " V. Poole and Boiu-nemouth Rail. Co., 39 L.J. C.P. 329; L.R. 5 C.P. 653, Lands Clauses Act 7 . . . V. Smyth, 39 L.J. Ch. 385 ; (L.J.G.) ibid. 536 ; L.R. 6 Ch. 551, Pr. in Eg.KKQ 460 V. Worcester, Bromyard and Leominster Kail. Co., 38 L.J. C.P 23 ; L.R. 4 C.P. 9, Bailway 43 . . . Gugy V. Brown, 36 L.J. P.C. 38 ; L.R. 1 P.O. 411, Colony 5 . . Qnldfaxe, The, 38 L.J. Adm. 12; L.R. 2 A. & E. 325, Admiralty A 17 Gully V. Davis, 39 L.J. Ch. 684; L.R. 10 Eq. 562, Will, Construction, E 6 . Gjinn's case, in re Universal Banking Corpora- tion, 36 L.J. Ch. 800 ; (L.JJ.) 37 L.J. Ch. 40; L.R. 3 Ch. 40, Company E 15 . Gunnell v. Whitear, 39 L.J. Ch. 869 ; L.R. 10 Eq. 664, Trust E 4 . Gunson v. Simpson, L.R.' 6 Eq. 322, Trust E 14 694 Gustard's case, in re European Central Rail. Co., 38 L.J. Ch. 610; L.R, 8 Eq. 438, •- 'Company E 2& . . . .124 DiSBST, 186^-70. Guttiorez, in the goods of, 38 L.J. P. & M. 48, Foreign Law 1 . . . . 266 Gwyn V. Neath Canal Navigation Co., 37 L.J. Ex. 122 ; L.R. 3 Ex. 209, Ifeed 3 . .222 Gwynn, in re, ex parte Veness, 39 L.J. Bankr. 23 ; L.R. 10 Eq. 419, Bank Note 38 . 47' Gyde V. Lingwood, 36 L.J. C.P. 10, Copyhold 9 194 297 127 182 477 458 619 633 636 315 428 429 429 296 309 : 507 98 .^10 613 123 592 Habergham v. Ridehalgh, 39 L.J. Ch. 545 ; L.R. 9 Ch. 395, Will, Construction M 4 Habershon's case, in re Mason's Hall Tavern Co., L.R. 5 Eq. 286, Company F 50 Hadfield Patent Case and Package Co., in re, ex parte Greenwood, 3 De G. J. & S. 603, Company G 9 . Hadley v. Perks, 36 L.J. M.C. 177 ; 7 B. &, S. 375 ; L.R. 1 Q.B. 444, Metrop. Police . V. Taylor, L.R. 1 C.P. 53, Negligence 22 . Hafod Lead Mining Co., in re, 36 L.J. Ch. 304 ; 35 B. 391, Company E 71 . Hagell v. Currie, 36 L.J. Ch. 448 ; L.R. 2 Ch. 449, Company C 28 . Practice in Eq. G C S . Haigh V. Haigh, 38 L.J. P. & M. 37 ; L.R. 1 P. & D. 709, Pivorce 90 . ex parte, in re London Quays and Ware- houses Co., 37 L.J. Ch. 397 ; L.R. 3 Ch. 394, Company F 69 . . , Haines V. Welch, 38 L.J. C.P. 118; L.R. 4 C.P. 91, Landlord^ Tenant 12 . Hakim, ex parte, in re Smith, Knight 65 Co., 38 L.J. Ch. 710 ; L.R. 8 Eq. 23, Pr. in Eq. WW 3 .... Company F 66 . Haldane v. Eckford, 38 L.J. Ch. 372 ; L.R. 7 Eq. 425, Production in Eq. 16 ,. Practice in Eq, 1 . v.. (No. 2), L.R. 8 Eq. 631, Bomicil 2 243 Hale V. Bushill, 35 L.J. Ch. 381 ; 35 B. 343, Costs in Eq. 19 (Infant) Hall V. Hall, 37 L.J. P. & M. 40 ; L.R. 1 P. & D. 481, Will, Formalities 6 . V. Lietch, L.R. 9 Eq. 376, Legacy 40 . -; — V. Mayor, &c., of Bristol, 36 L.J. C.P. 110; L.R. 2 C.P. 322, Ptiblic Health 13 V. Potter, 39 L.J. M.C. 1, Pub. Health 17 496 v,Woolley,39L.J. Ch. 106, Will, Constr. M 3 Hall's Estate, in re, 39 L.J. Ch. 392 ; L.R. 9 Eq. 179, Lands Clauses Act 47 . Hall's case, in re United Service Co , L.R. 7Eq.76; (onApp.) 39 L.J. Ch. 730; L.R. 5 Ch. 707, Company E 9 . Halley, The, 37 L.J. AdnJ. 1 ; L.R. 2 A. & E. 3 ; (on App.) 37 L.J. Adm. 33 ; L.R. 2 P.C. 193, Shipping Q 7 . Halliday v. Holgate, 37 L.J. Ex. 174 ; L.R. 3 Ex. 299, Trover 1 . . . Hallows V. Feruie, 36 L.J. Ch. 267 ; L.R. 3 Ch. 467, Costs in Eq. 27 . Company D 1 . Company E 131 . Hallyburton, in th^ goods of, 35 L.J. P. & M. 122 ; L.R. 1 P. & D. 90, Will, Form. 36 4S 629 127 161 366 384 130 112 456 235 155 306 463 155 489 451 204 636 330 495 629 316 122 566 586' 205 120 139 640 682 Table ol? oases. 619 298 436 83 650 312 54 455 479 370 28 399 469 & PAGE Halton V, Foster, 87 L.J. CIi. 547 ; L.R. 8 Ch. 500, Witl, Construction 11 . . Haly V. Barry, 37 L.J. Ch. 723 ; L.B. 3 Ch 452, Judgment 16 . Hamilton v. Buckmaster, 36 L..J. Oh. 58 ; L.B. 3 Eq. 'ilZ,- Power of Sale 38 . -^ V. Spottiswoode, 36 L.J. Ch. 51, Charity 1 Hamilton, Lord Charles, v. Duke of Hamil- ton, L.R. 2 Sc. App. 12, Scotch Law, Entail, Addenda 45. .... Hammersmith Eail. Co. v. Brand, 38 L.J. aB. 265 ; L.R. 4 E. & I. App. 171, Lands Clauses Act 24 . Hammond, in re, ex parte Spooner, L.R. 3 Ch, 2i'i,Blccy. 91 [Prosecution, Misdeimanor) , Hamp V. Hamp, 35 B. 189, Fr. in Ecj.Y i . Hampson, in the goods of, 35 L.J. P. & M, 1 ; L.R. 1 P. & D. 1, Probate 1. , r. Fellows, 37 L.J. Ch. 694 ; L.R. 6 Eq. '575, Mortgage 2 . . . Hancock v. Hancock and Smith, 36 L.J. P. * M. 86 ; L.R. 1 P. & D. 334, Divorce 112 238 y. , falsely called Peaty, 36 L.J. P. & M. 57 ; L.R. 1 P.'& D. 335, Divorce 6 226 Handley v. Franchi, 36 L.J. Ex. 32 ; 4 H. & C. 693 ; L.R. 2 Ex. 34, Arrest 3 Hanks t. Jones, 38 L.J. C.P. 51 ; L.R C.P. 502, Parliament 38 . Surety 9 . Hanna, The, 36 L.J. Adm. 1 ; L.R. 1 A, E. 283, Shipping Q 2 . Hannant v. Foulger, 36 L.J. M.C. 119 ; 8 B, & S. 426 ; L.R. 2 Q.B. 699, Alehouse 2 ' . Hannibal, The, The aneen, L.R. 2 A. & E. 53, Shipping T 5 Hanover, King of,' v. Bank of England, L.R. 8 Eq. 350, Trust F 12 Hanson v. Royden, 37 L.J. O.P. 66 ; L.R. 2 C.P. 47, Shipping V 1 Harding v. Inskip, 38 L.J. Ex. 81 ; L.R. 4 Ex. 80, Composition Deed 78 ex parte, in re English Joint-Stock Bank, L.R. 3 Eq. 341, Cont^xmy G 17 Hardy v. Featlierstonhaugh, 38 Ii.J., Q.B. 337; 10 B. & S. 628; L.R. 4 Q.B. 72.5, Costs at Law 30 V. Veasey, 37 L.J. Ex. 76 ; L.R. 3 Ex. 107, Danker 12 (Duty as Dailee) . Hare's case, in reLondon and Connty Gene- ral Association, L.R. '4 Oh. 503, Company E 134 . Hares r. Lea, L.R. 10 Eq. 683, County Ct., 14 Hargreayes v. Armitage, 38 L.J. Q.B. 46 ; L.R. 4 Q.B. 143, Sheriff 9 Harker v. Harker, 37 L.J. P. & M. 11, Divcrrce 54 , . Harland v. Mayor and Corporation of New- castle-upon-Tyne, 39 L.J. Q.B. 67; L.R. 5 Q.B. 47, Arbitration 11 . Harman v. Gurner, 35 B. 478, Will E 18 Harper v. Barnes, in re 'Barnes, 36 L.J. Ch. Hi, Atluchment of Debts i . Judgment 4 . . . . . V. Godsell, 39 L.J. Q.B. 185; L.R. 6 Q.B. 422, Trovir 2 {Joint Owners) , . 685 17 588 594 . 559 179 162 . 201 41 140 208 538 233 26 615 39 397 210 33 20 277 437 43 Harper v. Pole, 36 L.J. Ch. 375 ; L.R. 3 Eq. 762, County Court 30 . .■■ • Harries v. Rees, 37 L.J. Oh. 102, Attorney 12 Harrington, Coiintess of, T. AthertOH, 2 De G. J. & S. 352, Annuity 11 V. Earl of Harrington, 37 L.J. Ch. 593; L.R. 3 Ch. 664, Heirlooms 2 V. , L.R. 3 Ch. 575, Pr. in B'j.B B 13 466 Harrington, Earl of, v. Stanhope, S7 L.J. Ch. 858 ; L.R. 3 E. &. L App. 296, Power 43 . Harris, ex parte, in re Ash, 35 L.J. Bankr. 21 ; L.R. 1 Ch. 469, Bankruptcy 4 . Harris, in the goods of William, 39 L.J. P. & M. 48 ; L.R. 2 P. & A, 83, Probate B 34 478 V. Amery, 35 L.J. O.P. 89 ; H. & B. 358 ; L.R. 1 C.P. 148, Parlicmuint 43 , 400 ,-. Harris and Milton, 39 L.J. P. & M. 86 ; L.R. 2 P. & D. 77, Divorce 68 " . 234 V. Pepperell, L.R. 5 Eq. 1 Jur. in Eq. 2 290 V. Quine, 38 L.J. Q.B. 331 ; 10 B. & S. 644 ; L.R. 4 Q.B. 653, Gonfl. of Laws 6 187 Harrison v. Richards, 36 L.J. Oh. 677; L..B. II Oh. 473, Fr. in Eq. U 1 . V. Seymour, 35 L.J. O.P. 264 ; H. & R. 567; L.B. 1 C.P. 618, Frin. # Surety U . Harrison, ex parte, in re Baillie and Harrison, L.R. 2 Ch, 196, Bankruptcy 87 . Harrison's ease, Roger's case, in re Universal Banking Co., L.R. 3 Ch. 663, Company E 169 . Harrison's Estate, in re, 39 L.J. Ch. 501 ; L.R. 5 Ch. 408, Will, Construction I in re, L.R. 10 Eq. 532, Lands CI. Act 54 HaiTop V, Hurst, 38 L.J. Ex. 1 ; L.R. 4 Ex. 43, Action 6 {Flow of Water) narrower v. Hutchinson, 38 L.J. Q.B. 185; L.R. 4 Q.B. 523; (Ex. Oh.) 39 L.L Q.B. 229 ; 10 B. & S. 469 ; L.R. 5 Q.B. 584, Marine Insurance 4 . . . Hart's case, in re Alexandra Park Co., 38 L.J. Ch. 85 ; L.R. 6 Eq. 512, Company E 27 -. 125 Hart V. Frontino and Bolivia South American Gold Mining Co., 39 L.J. Ex. 93; L.R. 6 Ex. Ill, Company E 107 . v. Smith, 38 L.J. Q.B. 25 ; 9 B. & S. , 563 ; L.R. 4 Q.B. 61, Compo.Deed 35 Hartley v. Burton, L.R. 3 Oh. 365, Mm-tage 14 372 V. Hindmarsh, 35 L.J. M.C. 254 ; H. & R. 609 ; L.R. 1 C.P. 553, Fl. at Law 10 Hartridge V. AUender, in re, ex parte London, Chatham and Dover Rail. Arrangement Act, L.R. 5 Ch. 671, Lijunction 2 . Harvey v. Bradley, L.R. 4 Eq. 13, Pr. in Eq. 6 3 {Bill of Eeview) V. Lloyd, 38 L.J. Oh. 634, Will, Form. 62 643 X'. Mayor, &e. 'of Lyme Regis, 38 L.J. Ex. 141 ; L.R. 4 Ex. 260, Statute 2 . 569 Harwood v. Great Northern Rail. Co.; 35 L.J. Q.B. 27, Patent 6 . . . .410 Hassall v. Wright, L.B. 10 Eq. 509, Patent 21 413 Hastie'scase,inre General Estates Co., 38 L.J. Ch. 43 ; (L.JJ.) ibid. 233 ; L.R. 4 Ch. 274, Company 'E 182 . ~ . . , Hastilow V. Stobie, 35 L.J. P. & M. 18 ; L.B, 1 P. & D. 64, Will, Formalities 1 . 450 469 63 145 621 316 345 135 173 421 285 449 146 630 TABLE OF CASES. 683 348 453 475 641 Hastings, ex parte, Bubb v. Yelvorton, 40 L.J. Ch. 3»; L.R. 10 Eq. 465, Injunct. 43. 290 — Union v. St. James', Clerkefiwell, 35 L.J. M.C. 65 ; L.R. 1 Q.B. 38, Poor 5 . .428 Hattersley r. Bnrr, 4 H. & C. 623,- PubUo Health 15 . . . . . 495 Haughton v. Empire Marine Ins. Co., 35 L.J. Ex. 117 ; 4 H. & C. 44 ; L.E. 1 Ex. 206, Mar. Ins. 14 . . . Havelock's Trusts, in re, 35 L.J. Cli. 228, Fr. «M £^. B B 1 Hawke v. Wedderburn, 37 L.J. P. & M. 33; L.E. 1 r. & D. 594, Probate B 9 . Hawkesley t. Barrow, 35 L.J. P. & M. 67 : L.R. 1 P. &"D. 147, Will, Fomi. 46 Hawkins, ex parte, in re United Englisli and Scottish Life Assurance Co., 37 L.J. Ch. 632; L.E. 3 Ch. 787, Cmnpany E 49 . 154 v. AUen, L.R. 10 Eq. 246, Mortmain 12 377 i V. Carr, and Parsons v. Carr, 35 L.J. Q.B. 81 ; L.R. 1 Q.B. 89, Fr. at Laxo 13 . 439 Pr. at Law 51 {Appeal) . . . 444 V. Maltby, 37 L.J. Ch. 58; L.R. 3 Ch. 188, Stock Exchange 9 . ' . .573 T. (No. 2), 38 L.J. Ch. 313; L.R. 4 Ch. 200, Stock Exctumge 10 . . 574 V , L.R. 6 Eq. 505, Company 'E. 176 146 Hay, A. J., in the goods of, 35 L.J. P. & M. .3 ; L.E. 1 P. & D. 51, Prolate B 17 . 476 Haydbn v. Rose. 39 L.J. Ch. 688 ; L.R. 10 Eq. 224, Will, Construction L 4 . t 625 Haynes v. Barton, 35 L.J. Ch. 233 ; L.R. 1 Eq. 422, Land Clauses Act 58 . . 317 T. Haynes, 35 L.J. Ch. 303, Presump- tionj . ' . . . . 464 Haytor Granite Co., in re, ex parte Bell, 35 L.J. Ch. 29 ; L.E. Eq. 11 ; (L.JJ.) 36 L.J. Ch. 164 ; 1 L.R. Ch. 77, Company G 16 162 Hayward v. Pile, L.E. 5 Ch. 214, Tnst 1) 6 590 V. Stephens, 36 L.J. Ch. 135, Pr. in Eq. V 11 .' . . . .454 Hazelgrove t. House, 35 L.J. Q.B. 1 ; L.E. 1 Q.B. 101, Composition Deed 44 . . 176 Head's case, in re Contract Corporation, 36 L.J. Ch. 121; L.R. 3 Eq. 84, Company E 1S7 . 147 HealT. Heal, 36 L.J. P. & M. 62; L.R. 1 P. & D. 300, Divorce 149 . Haald v. Walls, 39 L.J. Ch. 217, Arrangefunent 2 . -. Healey v. Chichester and Midhurst Rail. Co. 39,L.J. Ch. 387 ; L.E. 9 Eq. 148, Bail- way 44 . Heard v. PiUey, 38 L.J. Ch. 718; L.R. 4 Ch. 548, Frauds, Stat, of & . Heart of Oak, The, 39 L.J. Adm. 15, Bnkcy. 16 Heasman v. Pearse, L.E. 8 Eq. 599, Appor- iioiiment 3 . Heath v. BucknaU, 38 L.J. Ch. 372 ; L.E. 8 Eq. 1, Injunction 11 {lAght) V. Fisher, 38 L.J. Ch. 14, Partner 21 . Heather, in re, 39 L.J. Ch. 781 ; L.E. 5 Ch. 694, Attorney 32 . . Heaton Steel and Iron Co., in re Simpson's case, 39 L.J. Ch. 41 ; L.E. 9 Eq. 91, Com- pany E 193 . t . . PAGE 241 262 607 269 44 21 286 409 35 149 • 123 94 234 473 647 94 468 44 127 137 14 Hebb's case, in re National Savings Biin]c As sociation, 36 L.J. Ch. 748 ; L.R. 4 Eq. 9 Company'^ 10, 12 . Hobbert, in re, Elphinstone v. Purchase, 39 L.J. Eccl. 1-24; L.R. 3P.C. 2i5, Church 38 Hebbletliwaite v. Hebblethwaite, 39 L.J. P. & M. 16; L.R. 2 P. & D. 29, Vivorce 70 Hebe, The, and Singapore, L.R. 1 P.O. 378, Privy Council 19 . Shipping E 6 . Heflfer V. Martyn, 36 L.J. Ch. 372, Auction 38 Heffield v. Meadows, L.R. 4 C.P. 595, Princi- pal and Surety 3 . Heilbut V. Nevill, 38 L.J. C.P. 273 ; L.R. 4 C.P. 354 ; (Ex. Ch.) 39 L.J. C.P. 245 ; L.R. 5 C.P. 478, Bankruptcy 16 Helbert's case, in re Barned's Banlcing Co. L.R. 6 Ecf. 609, Company E 44 . Helby's ease, Stoke's and Horsey's case, in re Portsmouth Banking Co., L.E. 2 Eq. 167, Cmnpany E 118 . Helen, The, 36 L.J. Adm. 2 ; L.R. 1 A. & E. 1, Admiralty A 4 . Hatee, The, 3,5 L.J. Adm. 1; L.R. 1 P.C. 2Zl, Admiralty D b . Hellman's or Illman's Will, in re, 39 L.J. Ch. 760 ; L. R. 2 Eq. 363, Lands CI. Act 46 316 Hemmings V. Maddick, L.R. 9 Eq. 175, "Pr. in Eq. C 6 (Amendment) . . . 446 Henderson V. Bamber, 35 L.J. C.P. 65, County' Court 27 {Appecd) . . . .209 v. Dodds,L.R. 2 Eq. 532, Costs in Eq. 14 203 or Anderson v. London and North- Wes- tern Rail. Co., 39 L.J. Ex. 56 ; L.R. 6 Ex. 90, Carrier 15 . . . .77 . V. Lacon, L.E. 5 Eq. 249, Company E 190 148 V. Mostyn Copper Co., L.E. 3 C.P. 202, Patent 22 [License, Royalties) . ' .413 V. Squire, 38 L.J. Q.B. 73; 10 B. & S. 183 ; L.E. 4 Q.B. 170, Landlord and T. 19 307 Henley Union, Proseeutors,v.Abingdon Union, 39L.J. M.C. 163; L.E. 5Q.B.406, Poor 13 429 Henniker V. Chafy, 35 B. lii,Lands a. Act 6^ 317 Henshaw v. Angell, 39 L.J. Ch. 624 ; L.R. 9 Eq. 451, Pr. in Eq. 1, S . Hensman v. Fryer, 35 L.J. Ch. 745; (L.C.) 37 L.J. Ch. 97 ; L.R. 3 Ch. 420, Will F 8 Administration 18 • . . Hepburn, in re, 36 L.J. Bankr. 48, Bnkcy. 31 Herbert T. Barrett, 37 L.J. Ch. 231 ; L.R.' 6 Eq. 435, Pr. TO ^J. T 2 y. Salisbury and Yeovil Rail. Co., L.E. 2 Eq. 221, Specific Performance 11 . Herbert's Patent, in "re, L.E. 1 P.C. 399, Patent 32 {Prolongation) , Hercules Insurance Co. in re, Lowe's case, 39 X.J. Ch. 458 ; 9 Eq. 689, Company E 86 . Herefordshire Banking Co., in re, 36 L.J. Ch. 806 ; L.E. 4 Eq. 250, Company G 10 . Heritage's case, in re Mercliants' Co., 39 L.J. Ch. 238 ; L.R. 9 Eq. 6, Company E 101 . Herman Wedel, The, 39 L.J. Adm. 30, Admi- ralty A 25 {Jur., Salvage) . Hen-ick v. Franklin, 37 L.J. Ch. 908 ; L.R. 6 Eq. 698, Will, Constr. I 17 450 616 6 46 452 . 564 415 132 161 134 11 622 684 TABLE OF OASES. PAGE Herrick v. Sixty, L.R. 1 C.P. 436, Deed 5 . 222 Herring v. Clarke, L.R. 4 Ch. 167, Trust 10 . 694 Hersee and Smyth,, in re, L.E. 1 Ch. 618, Patent 67 . . . • . ■ *17 Heugh V. London and N.-Western Eail. Co., 39 L.J. Ex. 48 ; L.E. 5 Ex. 81, Carrier 24 80 Hewitson v. Shorwin, L.E. 10 Eq. 63, Debtor and Creditor 11 (Imprisonment) . . 221 Hewitt V. Kaye, 37 L.J. Oh. 633; L.E. 6 Eq. 108, Donatio mortis causa . . 244 and Co. v. Cory, 39 L.J. Q.B. 279 ; L.R. 6 Q.B. 418, Admiralty D 15 . ' .15 Heyford Ironworks Co., in re, Forbes and Judd's case, 39 L.J. Ch. 422 ; L.E. 5 Ch. . 126 122 140 63 581 270; & S. 525 270, Company E 39 in re. Pell's case, 38 L.J. Ch. 564 ; L.E. 8 Eq. 222 ; (L.J.G.) 39 L.J. Ch. 120 ; L.E. 6 Ch. 11, Company E 7 . Heygate v. Thompson, L.E. 8 Eq. 364, FUad- ing in Eq. 14 ... . 425 Heymann v. European Central Eail. Co., L.E. 7 Eq. 194, Company E 133 . Heyne, ex parte, in re Heyne, L.E. 2 Ch. 650, Bankruptcy 8'6 . Heysham v. Heskett, ex parte Arnison, 37 L.J. Ex. 57; L.R. 3 Ex. 56, Tithe 1 Heyworth v. Hutchinson, 36 L.J. Q.B. L.E. 2 Q.B. 447, Sale 3 . Hibbs V. Eoss, 35 L.J. a.B. 193 ; 7 B. 655 ; L.E. 1 G.B. 634, Evidence 5 . Hickie and Co.'s case, in re New Zealand Bank, 36 L.J. Ch. 809; L.R. 4 Eq. 226, Bill of Ex.Zi . Company E 108 ., Hicks, in the goods of, 38 L.J. P. & M. 65 L.R. 1 P. & D. 683, Will, Form. 60 , in the goods of, (No. 2), 39 L.J. P. & M. 52, Frohate B 3 V. Powell, L.R. 4 Ch. 741, Colonial Law, Addenda 12. Hickman, The, 39 L.J. Adm. 7 ; L.R. 3 A. & E. 15, Admiralty D 12 . Hickmott v. Simmon'ds, 35 L.J. Ch. 680 ; L.E. Eq. 462, Composition Deed 42 Hickson t. Lombard, L.R 1 E. & I. App. 324, Annuity, 9 .... Higgs V. Maynard, H. & E. 681, Negligence 1 381 V. Northern Assam Tea Co., 38 L.J. Ex. 233 ;' L.E. 4 Ex. 387, Set-off % Company G 29 . Hill T. Boyle, L.E. 4 Eq. 260, Account 2 V. Browning, L.E. 5 Q.B. 463, Bread 3 V. Curtis, 36 L.J. Ch. 133 ; L.E. 1 Eq. 90, Execution 30 . V. , L.E. 1 Ch. 425, Dr. in Eq. BB 8. V. Einney, 4 F. & E. 616, Attonuy 15 . T. Hibbitt, 38 L.J. Ch. 447 ; L.R. 7 Eq. i1l,Fr.iH Eq.Y i V. Jones, 37 L.J. Ch. 465, Legacy 22 . V. New River Co., 9 B. & S. 303, Master and Servant 9 {Employment) V. Peel, Tamworth Election Petition, 39 L.J. C.P. 89; L.R. 6 C.P. 172, Farliament 14 T. Royds, 38 L 18 . Kettle, ex parte, and ex parte Fleming, in re National Provincial Life Assurance Society, 39 L.J. Ch. 250, Company C 76 . Kettlewell v. Barstow, 39 L.J. Ch. 846 ; L.E. 10 Eq. 210, Practice in Equity, C 11 V. Dyson, 9 B. & S. 300, Practice at Law F 18 . . . Key, in re, ex parte Skinner, 39 L. J. Bkcy'. 28 ; L.E. 10 Eq. 432, Bankruptcy ' 35 . Khine v. Shadden, 37 L.J. P.C. 19; L.R. 2 P.C. 60, Privy Council 6 . Kidston v. Empire Marine Insurance Co., 35 L.J. C.P. 250; L.E. 1 C.P. 536; (Ex. Ch.) 36 L.J. C.P. 166 ; H. & E. 433 ; L.E. 2 C.P. 366, Manne Ins. 34 . Kierzowski v. Dorion, 38 L.J. P.C. 12 ; L.R. 2 P.C. 291, Colonial Law 6 . Kimbray v. Draper, 37 L.J. Q.B. 80 ; 9 B. 6 S. 80; L.E. 3 Q.B. 160, County Court 21 209 Kincaid's case, in re Eussian Vyksounsky Iron Works, 36 L.J. Ch. 499 ; L.R. 2 Ch. 412, Company E 146 . King V. Gillard. 37 L.J. P.M. 4 ; L.E. 1 P. & D. 639, Probate M 13 . King, ex parte, in re Eiohmond Hill Hotel, Co., 36 L.J. Ch. 718 ; L.E. 4 Eq. 566 ; (on App.) 382 ; L.J. Ch. 541 ; L.E. 3 Ch. 10, Com- position Deed, 32 . King's case, in re Financial Corporation, 36 L.J. Ch. 695; L.E. 2 Ch. 714, Company E 102 . King Edward VI.'s Charity Almshouses at Saifron Walden, in re, 37 L.J. Ch. 664, Practice in Equity E- E 1 . King of Hanover v. Bank of England, L.E. 8 Eq. 350, Trust F 12 . . Kinnersley v. Williamson, 39 L.J.' Ch. 788, Tenant for Life 2 .... Kintrea, ex parte, in re Bank of Hindustan, China and Japan, 39 L.J. Ch. 193 ; L.E. 6 Ch. 95, Company E 74 ^ Kirton v. Dear, 39 L.J. C.P. 36 ; L.E. 5 C.P. 217, Parliament 21 . Kirkbride's Trusts, in re, L.E. 2 Eq. 400, Will, C'onstnu>tio7t L 26 . Kirkman v. Lewis, 38 L.J. Ch. 570, Mort- main 13 ■ . , . , 377 506 501 617 375 167 603 447 16 IS 118 447 440 46 471 352 98 141 . 487 172 134 467 694 67 8 130 628 TABLE OF CASES. 691 Kiseh Y. 'Central Bail. Co., of Venezuela, 34 L.J. Ch. 545; 3 De G. J. & S. 122; (H.L. on App.) 36 L.J. Ch. 849 ; L.E. 2 E. & I. App. 99, Company E 128 . Kisto Nauth Eoy, ex parte, Moyee v. Burmo- nia, 38 L.J. P.O. 21; L.E. 2 P.O. 274, Frvuy Council, 18 . Kitchin v. Hawkins, L.E. 2 C.P. 22, Camp. Deed 68 . . Kitton, in re, 35 B. 369, Costs in Eq. 34 Knight's case, in re North Hallenbeagle Tin and Copper Mining Co., 36 L.J. Ch. 317 ; L.B. 2 Oh. 321, Company E 117 . : Trusts,, in re, 37 L.J. Ch. 409, Trust, E 10 . Knights V. Wiffen, 40 L.J. Q.B. 61 ; 5 Q.B. 660, JEsioppel i . Knock V. Metropolitan Bail. Co., 38 L.J, C.P, 78; L.E. 4 C.P. 131, Lands a. Act 22 312 Knowle's Settlement, in re, 37 L.J. Ch. 840, Trust C 1 . . ... Knox V. Turner, 39 L.J. Ch. 207 ; L.E. 9 Bq. 156 ; (on App.) 39 L.J. Ch. 750 ; L.E. 6 Ch. 615, Annuity 10 . . . Ko Khine v. Shadden, 37 L.J. P.O. 19 ; L.E. 2 P.O. 60, Fnvy Council 5 . Kramer v. Waymark, 35 L.J. Ex. 148; 4 H. & 0. 427 ; L.E. 1 Ex. 241, Pr. at Law 37 . 442 Krehl v. Great Central Gas Co., 39 L.J. Ex. 197 ; L.E. 5 Ex. 289, Bkcy., 68 . .49 Kreuger v. Blanck, 39 L.J. Ex. 160 ; L.E. 6 Ex. 179, Sale 11 . . . .627 KynnaiM v. Leslie, 36 L.J. C.P. 226 ; H. & , E. 521 ; L.E. 1 C.P. 389, Descent 1 . 223 139 473 177 205 137 . 593 249 689 471 25; 40; L., falsely caUed H., v. H., 36 L.J. P. & M. 76 ; L.E. 1 P. & D. 293, Divorce 166 La Blache v. Eangel; The Nina, 37 L.J, Adm. 17 ; L.E. 2 P.O. 38, Adm. A 13 La Cloche t. La Cloche, 39 L.tT. P.O. L.E. 3 P.O. 126, Colonial Law, 27 . Lady of the Lake, The, 39 L.J. Adm. L:E. 3 A. & E. 29, Adm. A 7 Laing v. Campbell, 36 B. 3, Partnership 14 . Laing v. Eeed, 39 L.J. Ch. 1 ; L.E. 5 Ch. 4, Friendly Soc. 1 . . . . Laing's Trusts, in re, 35 L.J. Ch. 282 ; L.E. 1 Eq. 416, Settled Estates 2 Lake v. Peisley, 35 B. 125 ; L.E. 1 Eq. 163, Pr. inEq.Y 1 {Evidence) . Lakeman v. Stephenson, 37 L.J. M.C. 57 ; 9 B. &S. 54; L.E. 3a.B. 192, .Pac^o^-y 1 . Lama Coal Co., in re, ex parte Miller, 36 LJ. Ch. 837 ; L.E. 2 Ch. 692, Company F 75 . Lamb T. North Londdn EaiL Co., L.E. 4 Ch. 522, BaHway 17 . Lambe v. Eames, L.E. 10 Eq. 267, WiU I 32 . Lambert v. Thwaites, 36 L.J. Ch. 406 ; L.E. 2 Eq. 151, Power 36 . . . in the goods of, 35 L.J. P. & M. 64 ; L.E. 1 P. & D. 138, Probate H 3 . Lancashire, Justices of, r. Overseers of Cheet- hara, 37 L.J. M.C. 12; 8 B. & S. 548; L.E. 3 Ci.B. 14, Bating 22 242 10 103 408 271 535 : 463 260 156 602 624 436 482 517 Land Credit Co. of Ireland v. Lord Fermoy, L.E. 8 Eq. 7 ; L.E. 5 Ch. 763, Comp. C 62 116 — — V. Lord Fermoy, ex parte Munster, 39 L.J. Ch. 477 ; L.E. 5 Ch. 323,P?-. in % YY'l 463 in re, 39 L.J. Ch. 389, Comp. E 67 . 128 in re, ex parte Overeud, Giirney & Co., 39 L.J. Ch. 27 ; L.E. 4 Ch. 460, Comp. G 40 165 Landell v. Baker, L.E. 6 Eq. 268, Partition 12 405 Lane v. Nixon, 36 L.J. C.P. 243 ; H. & E. 685 ; L.E. 1 C.P. 412, Mar. Ins. 8 . .347 Lanfranchi v. Mackenzie, 36 L.J. Ch. 618; L.E. 4 Eq. 421, Injimction 16 . . 287 Langdale's Settlement Trusts, in re, L.E. 10 Eq. 39, Trust C 4 . . . .589 Langer's case, in re International Contract Co., 37 L.J. Ch. 292, Company E 97 . . 133 Langford, in the goods of, 37 L.J. P. & M. 20 ; L.E. 1 P. & D. 458, Executor 4 . 265 Langham v. East Wheel Eose, Consolidated Silver Mining Co., 37 L.J. Ch. 253, Com- pany, E 130 . . . . 139 Company E 148 . . . . 142 Langley V. Hammond, 37 L.J. Ex. 118; L.E. 3 Ex. 161, Lease 15 . . . 325 Langton v. Waite, 37 L.J. Ch. 345 ; L.E. 6 Eq. 165; (on App.) L.E. 4 Ch. 402, Stock Exchange 17 . . • . 675 Larkins v. Samson and Samson v. Samson, 39 L. J. Ch. 582, Pr. in Eq.DJ) 5 . . 457 Lascelles, in re, L E. 1 Ch. 127, Bkcy. 98 . 64 Latham v. Lafone, 36 L.J. Ex. 97 ; L.E. 2 Sji. 115, Composition Deed 27 . . 171 Lathropp's Charity, in re, 36 B. 297 ; L.E. 1 Eq. 467, Lands CI. Act 56 . . .317 Latymer's Charity, in re, L.E. 7 Eq. 353, Charity, Schefne, Addenda 10 . 646 Laudet v. Prince, 36 L.J. a.B. 196 ; 8 B. & S. 360 ; L.R. 2 CI.B. i06, Practice at Law 35 412 Laurie v. Scholefield, 38 L.J. C.P. 290 ; L.E. 4 C.P. 622. Principal and Surety 1 . .467 Law V. Glen, L.E. 2 Ch. 634, Mortgage 38 . 375 Lawe V. Maillard, 38 L.J. C.P. 179 ; L.E. 4 C.P. 647, Parliament 69 . . .403 Lawes v. Gibson, 36 L.J. Ch. 148 ; L.E. 1 Eq. 135, Vendor and Purchaser 32 . . 603 Lawless v. Anglo-Egyptian Cotton and Oil Co., 38 L.J. Q.B. 129; 10 B. & S. 226; L.E. 4 -Q.B. 262, Company C 6 . . .335 Libel 13 . . . . .109 Lawrence v. Hitch, 37 L.J. Q.B. 209 ; 9 B. & S. 467 ; L.E. 3 Q.B. 521,. Market 4 . 354 . V. King, 37 L.J. M.C. 78 ; 9 B. & S. 325 ; L.E. 3 Q.B. 345, Highway 12 . 279 Lawrence; in re, ex parte M'Kenna, City Bank's case, 3 De G. J. & S. 629, Bkcy . 5 40 Lawrence's case, in re Caehar Co., 36 L.J. Ch. 490 ; L.E. 2 Ch. 412, Company E 144 . 141 Lawton v. Ford, L.E. 2 Eq. 97, Limitations, Stat, of 5 337 V. Price, 37 L.J. Ch. 383 ; L.E. 3 Ch. 304, Costs in Equity 32 . . 20,5 Lawton's Estates, in re, L.E. 3 Eq. 469, Aji- portionment 4 . . . .21 Layard v. Maud, 36 L.J. Ch. 669 ; L.E. 4 Eq. 397, Mortgage 21 . . . 373 4t 2 692 TABLE OF CASES. 595 329 14 209 431 . 211 468 Layard v. Ovey, 37 L,J. M.C. 148 ; L.E, 3 Q.B 415, Turnpike 1 . Leach t. Leach, 35 B. 185, Legacy 32 . Leader, The, 37 L.J. Adra. 57 ; L.R. 2 A. & E. 314, Admiralty D 8 . Lealley v. Veryard, 35 L.J. P. & M. 127, County Cour-t E 24 . Leatham v. Bolton, Le Sands, 35 L.J. M.C. 62, Poor 21 . Leather Cloth Co. v. American Cloth Co., 35 L. J. Ch. 53 ; L.E. 1 Eq. 299, Trade-Mark 8 684 V. LorBont, 39 L.J. Ch. 86 ; L.E. 9 Eq. 345, Covenant 3 . leathly v. Spyer, 39 L.J. C.P, 299 ; L.E. 5 C.P. 595, Principal and Surety 5 Lcbel V. Tucker, 37 L.J. Q.B. 46 ; 8 B. & S. 830 ; L.E. 3 Q.B. 77, Bill of Ex. 10 Lo Blanc v. Grainger, 35 B. 187, Specific Performance 7 Le Blanc, Maria, in re, Williinson v. Schnei- der, 36 L.J. Ch. 410, Power 33 LeCocq V. South-Eastern Eail. Co., 7 B. & S. 415, Costs at Law 26 . . . Leconfield v. Lonsdale, 39 L.J. C.P. 305; L.E. 5 C.P. 657, Salmon 3 . .. , Lord, T. Dixon, 36 L.J. Ex. 102 ; L.E. . 2 Ex. 202 ; (Ex. Ch.) 37 L.J. Ex. 33 ; L.E. 3 Ex. 30, Inclosure I Le Couteur v. London and South-Western Eail. Co., 35 L.J. Q.B. 40 ; L.E. 1 Q.B. 64, .Carrier 9 . . . . Lo G-ros and others. Owners of ' The Obey,' V. the Owners of ' The Arthur,' L.E. 1 A. & E. 102, Shipping E 14 Lee T. Angas, 35 L.J. Ch. 370 ; L.E. 2 Eq. 59, Practice in Equity TT 1 - — - V. Haley, 39 L.J. Ch. 284 155, Trade-Mark 1 . V. Merest, 39 L.J. Eccl. 53, v. Southern Insurance Co., 39 L.J. C.P. 218 ; L.E. 5 C.P. 397, J^ar. Ins. 35 V. Wilmot, 35 L.J. Ex. 178 ; 4 H. & C. 496 ; L.E. 1 Ex. 364, Limitations, Stat, of 16 339 Lee and Moor's ease, in re Shield's Marine As- surance Association, L.E. 5 Eq. 368, Com- pany G 44 . , a Solicitor, in re, ex parte Neville, L.E. 4 Ch. 43, Attorney 28 . . . Lee, in re, ex parte Lee, L.E. 3 Ch. 150, Bank- ruptcy 83 . Leeds Banking Co., in re, 35 L.J. Ch. 311; L.E. 1 Ch. 150, -Pr. in Eq.CG2 . in re, Addinell's case, Dobson's case, Fearnside's and Dean's case, 35 L.J. Ch. 75 ; L.E. 1 Eq. 225 ; (on App.) 35 L.J. Ch, 3u7 ; L.E. 1 Ch. 231, Company E 158 in re, Barrett's case, 3 De G. J. & S. 30, Company E 154 . ■ in re, Jackson v. Turquand, 39 L.J. Ch. 11; L.E. 4 E. & I. App. 305, Company E 163 .... _ — Howard's case. 36 L.J. Ch. 42 ; L.E. 1 Ch. 561, Company E 166 . . Mallorie's case, 36 L.J. Ch. 40 ; (L.JJ.) ibid. 141 j L.E. 2 Ch. 181, Company E 160. L.E. 5 Ch. 64 663 435 201 528 281 76 548 462 583 559 352 165 35 53 456 . 143 143 144 144 143 Leeds Banking Co., Mathewman's case, . 36 L.J. Ch. 90 ; L.E. 3 Eq. 781, Company E 60. 128 , Prange's case, 35 L.J. Ch. 33; L.E. 1 'Eq. I , Bill of Exchange 15 . . ' . Leemau v. George and Eosser, 37 L.J. P. & M. 13 ; L.E. 1 P. & D. 542, Probate M 9 . Lees v. Newton, 35 L.J. C.P. 286 ; H. & E. 734; L.E. 1 C.P. 658, Sheriff Z V. Whiteley, 35 L.J. Ch. 412; L.E. 2 Eq. 143, Bankruptcy 65 . Leete v. Hart, 37 L.J. C.P. 157 ; L.E. 3 C.P. 322, Action 13 ... . Leggottv. Metropolitan Eail. Co., L.E. 5 Ch. 716, Vendor and Purchaser 31 Lehmann v. McArthur, 37 L.J. Ch. 625; L.E. 3 Ch. 496, Spec. Ptrf 19 Leifchild's case, in re British and Foreign Cork Co., L.E. 1 Eq. 231, Company C 46 Company F 31 . Leigh v. Lloyd, 35 B. 455, Mortgage 5 Leighton and Bennett, in re, ex parte Byrne, 36 L.J. Bankr. 43; L.E. 1 Ch. 331, Bank- ruptcy 108 ... . Leite v. Johnston; 37 L.J. Ch. 266 ; L.E. 5 Eq. 266, Practice in Equity T 3 Leith Harbour and Dock Commissioners v. Inspectors of Poor, L.E. 1 Sc. App. 17, Pleading at Law 11 Bates 21 . Lemage v. Goodban, 35 L.J. P. & M. 28; L.E. 1 P. & D. 57, Wm, Form. 49 . Lempriere v. Lempriere and Eoebel, 37 L.J. P. & M. 78 ; L.E. 1 P. & D. 569, Divorce 22 228 Lepine v. Bean, 39 L.J. Ch. 847 ; L.E. 10 Eq. 160, Will, Constr. H 12 Leslie v. Macleod, L.E. 2 Sc App. 44, Scotch Law, Addenda 44 . Letton V. Gooden, 35 L.J. Ch. 427 ; L.E. 2 Eq. 123, Ferry .... Letts v. Letts, L.R. 2 P. & D. 16, Biv. 162 . Leuw V. Dudgeon, 37 L.J. C.P. 5 «., Shipping Ai 541 Leverson v. The Queen, 38 L.J. M.C: 97 ; 10 B. & S. 404; L.E. 4 Q.B. 394, Central ' Criminal Court 1 . Levick's case, in re Bank of Hindustan, China and Japan, L.R. 6 Eq. 69, Company F 83 . Levien v. Tlie Queen, 36 L.J. P.C. 62 ; L.E. 1 P.C. 536, Privy Council 11 Levinger v. The Queen, 39 L.J. P.C. 49; L.E. 3 P.C. 282, Colonial Law 37 . LeKita's case, in re International Contract Co., L.E. 3 Ch. 36, Company E 13 (No. 2), in re International Contract Co.> 39 L.J. Ch. 673 ; L.E. 6 Ch. 489, Company E 18 Levy V. Rice, L.E. 5 C.P. 119, V,nue 3 V. Sanderson, 38 L.J. Q.B. 135; 9 B. & S. 410 ; L.E. 4 Q.B. 330, Costs at Law 10 and Co.'s case, in re New Zealand Bank- ing Corporation, L.E. 7 Eq. 449, BUI of Exchange 35 Levy, in re, 39 L.J. Bkcy. 49 ; L.E. 2 Ch. 293, Bkcy 90 .... . Lewers v. Earl Shaftesbury, L.E. 2 Eq. 270, apecifio Pcrf. 33 . . . . -567 64 486 638 51 . 603 665 114 125 370 56 452 421 617 641 619 650 262 241 82 157 472 . 104 123 124 605 199 68 54 TABLE OF CASES. 693 PAGE lewes V. Cambrian Rail. Co., Prvce v. Cam- brian Rail. Co. .36 L.J. Ch. 565 ; L.E. 2 Ch. 444, Specific Performance 27 Lewes, falsely called Hayward, v. Hayward, 35 L.J. P.& M. 105, Divorci 11 . Divorce 143 ... Lewis V. Fothergill, L.E. 5 Ch. 103, Lease 3 T. McKee, 36 L.J. Ex. 6 ; 4 H. & C. 674 ; L.E. 2 Ex. 37 ; (Ex. Ch.) 39 L.J. Ex. 62 ; L.E. 4 Ex. 68, Shipping A 10 T. Matthews, 35 L.J. Ch. 638 ; L.E. 2 Eq. 177, Will, Constr. F 2 . V. , 38 L. J. Ch. 510 ; L.E. 8 Eq. 277, Executor 16 .... ex parte, in re Lewis, L.E. 3 Ch. 147 m. to Hughes, in re, Bankcy. 105 Ley V. Ley, 37 L.J.Ch. 328 ; L.E. 6 Eq. 174. Marriage Settlement 30 Liddell v. Eainsford,-37 L. J. Eecl. 83, Church 46 V. ^— , 38 L.J. Eccl. 16, Church 21 Lidgett V. Secretan, 39 L.J. C.P. 196 ; L.E. 5 C.P. 190, Mar. Ins. 10 . Lievesley v. GiLnore, 36 L.J. C.P. 351 ; H. & E. 849; L.E. 1 C.P. 670, Arbitration D 17 Lilford, Lord, v. Attorney General, 36 L.J. Ex. 116 ; L.E. 2 E. & I. App. 63, Legacy DutyW 332 XQford, Lord, v. Powys Keck, '35 L.J. Ch. 302; 35 B. 77; L.E. 1 Eq. 347, Adminis- tration 17 . Llllywhite v. Trimmer, 36 L.J. Ch. 625, Nui- sance 2 . . Xincoln, Mayor of, v. Holmes Common, Overseers of, 36 L.J. M.C. 73 ; 8 B. & S. 344 ; L.E. 2 Q.B. 482, Bate 5 Xindsay v. Gladstone, L.E. 9 Eq. 132, Frq- ' dviction 26 . . . Lindsey t. Oswald, L.E. 1 So. App. 68, Scotch Law 13 . Lingwood v. Gyde, 36 L.J. C.P. 10 ; L.E. 2 C.P. 72, Copyhold^ V. Stow Market Co., L.E. 1 Eq. 77, In- junction 23 . : V. , L.E. 1 Eq. 336, Injunction 23 . 288 Xinnell and Walker v. Gunn, 36 L.J. Eccl. 23 ; L.E. 1 A. & E. 363, Church Sate 4 96 Lintott's ease, in re Overend, Gurney & Co. Limited, 36 L.J. Ch. 510; L.E. 4 Eq. 184, Compawy E 176 Lion, The Owners of, v. Owners of the York Town, 37 L.J. Adm. 39 ; L.E. 2 A. & E. 102; (P.C.),38 L.J. Adm. 51; L.E. 2 P.C. 625, Shipping Q 4 . Lipscomb v. Lipscomb, 38 L.J. Ch. 90 ; L.E. 7 Eq. 501, Administration 20 . .7 Lisburn, Earl of, v. Davis, 36 L.J. C.P. 193; • H. & E. 172 ; L.E. 1 C.P. 259, L. # T. 17 307 Lister v. Hodgson, L.E. 4 Eq. 30, Trust A3. 586 V. Ferryman and Ferryman & Lister, 39 L.J. Ex. 177; L.E. 4,E.& L App. 521, False Imprisonment 2' . . • 261 T. Tidd, L.E. 4 Eq. 462, Fr. in Eq. 0,0,1 462 Little, in re, L.E. 7 Eq. 323, Trust F 15 . 594 Littlehampton, Havre and Honfleur Steam- ship Co., in re, Ormrod's case, 37 L.J. Ch. Ill ; L.E. 6 Eq. 110, Company E 26 566 227 240 323 542 616 257 56 359 95 90 347 27 6 514 490 632 194 . 288 14-6 . 656 125 Little Lizzy, The, L.E. 3 A. & E. 56, Ad- miralty C 20 Liverpool, Brazil and Eiver Plate Steam Navigation Co. v. Benham, The Halley, 37 L.J. Adm. 1 ; (P.C.) ibid. 33; L.E. 2 P.C. 193, Shipping 0% . Liverpool, Corporation of, ex parte, in re London & N.W.E. Act, 1861, 35 L.J. Ch. 655 ; L.E. 1 Ch. 596, Lands Clauses Act 44 Liverpool Exchange Co., ex parte, in re Pro- gress Assurance Co., 39 L;J. Ch. 504 ; L.E. 9 Eq. 370, Company G 21 . Liverpool Improvement Act, in re, 37 L.J. Ch. 376 ; L.E. 5 Eq. 282, Lands Clauses Act 9,1 . Liverpool Marine Credit Co. v. Hunter, 36 L.J. Ch. 567 ; L.E. 4 Eq. 62 ; (on App.) 37 L.J. Ch. 386 ; L.E. 3 Ch. 479, Conflict of Laws 5 . Liverpool New Cattle Market Co. v. Hodson, 36 L.J. M.C. 30; 8 B. & S. 184; L.E. 2 Q. 'B. 131, Nuisance 18 Public Health Act 5 . Lizzie, The, L.E. 2 A. & E. 254, Shipping B 1. . . . . . Llanharry Hematite Iron Co., in re, Tothill's case, 36 L.J. Ch. 120 ; L.E. 1 Ch. 86, Com- pany Ell. Llanwarne, in the goods of, 36 L.J. P. & M. 25; L.E. 1 P. & D. 306, Pwiate B 15 Llewellyn v. Eous, L.E. 2 Eq. 27, Apportion- ment 2 . Lloyd V. Banksj 36 L.J. Ch. 761 ; L.E. 4 Eq. 222 ; (on App.) 37 L.J. Ch. 881 ; L.E. 3 Ch. 488, Trust D 13 V. Burrup, 38 L.J. Ex. 26; L.E. 4 Ex. 63, Church 20 . . .* . V. Guibert, 35 L.J. Q.B. 74 ; 6 B. & S. 100 ; L.E. 1 Q.B. 116, Shipping B 10 Shipping K 8 . V. Harrison, 35 L.J. Q.B. 153 ; 7 B. & S. 629 ; L.E. 1 Q.B. 502, Sheriff 7 . V. Jackson, Lloyd v. Jackson, 35 L.J. Q.B. 188 ; 7 B. & S. 683 ; L.E. 1 Q.B. 571 ; (Ex. Ch.) 36 L.J. Q.B. 169; 7 B. & S. 698 ; L.E. 2 Q.B. 269, W^a 17. V. Jones, 7 B. & S. 476, Slander 8 V. Lloyd,- L.E. 2 Eq. 722, Forfeiture 8 . V. , 38 L.J. Ch. 458 ; L.E. 7 Eq. 458, Will, Constr. F 5 . V. , L.E. 1 P. & D. 222, Divorce, Pr., Confrontation, Addenda 24 Lloyd's Banking Co., ex parte, in re Eichards, 38 L.J. Bankr. 9 ; L.E. 4 Ch. 630, Fix- tures 7 . Loch V. Bagley, L.E. 4 Eq. 122, Marriage Settlement 12 Lock V. Furze, 36 L.J. C.P. 141 ; H. & E. 379 ; L.E. 1 C.P. 441, Covenant 25 Locke V. Lamb, L.E. 4 Eq. 372, Will, L 18 . Lockett V. Lockett,- 38 L.J: Ch. 290 ; L.E. 4 Ch. 336, Pleading in Eq. n Loder's Claim, in re Joint-Stock Discount Co., 37 L.J. Ch. 846 ; L.E. 6 Eq. 491, Company ' F 181 13 556 316 162 320 187 391 493 544 123 476 21 592 89 645 552 . 538 621 661 266 616 647 266 . 366 214 627 . 426 146 691 TABLE OF CASES. 162 368 31 491 514 424 315 127 162 122 140 157 FAOE Logan, ex parte, in re London and Scottish Bank, L.E. 9 Eq. 149, Omnpany G 18 Lomax v. Stott, 39 L.J. Ch. 834, Mines 1 1 . London, the Mayor, &o. of, v. Cox, 36 L.J. Ex. 225 ; L.E. 2 E. & I. App. 239, Attaoh- ment 8 .... . London, the Mayor, Commonalty and Citizens of, V. Galloway, and Galloway v. the same, 35 L.J. Ch. 477 ; L.E. 1 E. & I. App. 34, Public Body -1 . . . London, The Mayor, &o.| of, v. St. Andrew's, Holborn, Churchwardens and-Overseers of, 36 L.J. M.C. 95 ; L.E. 2 C.P. 674, Rate 3 . London, the Mayor and Corporation of, v. Sou.thgate, 38 L.J. Ch. 141, Pleading in Equity 6 . . . . ~ . London, Corporation of, ex parte, 37 L.J. Ch. 375 ; L.E. 5 Eq. 418, Lands CI. Act 42 . London and Colonial Co., in re, ex parte Clark, 38 L.J. Ch. 562 ; L.E. 7 Eq. 550, Company E 51 , Horsey's case, 37 L.J. Ch. 393 ; L.E. 5 Eq. 661, Company G 19 . Jjondon and County Coal Co., in re, L.E. 3 Eq. 365, Company E 4 . London and County General Association, in re Hare's case, L.E. 4 Ch. 603, Company E 134 . London and Mediterranean Banking Co., in re, ex parte, in re Birmingham Banking Co., 37 L.J. Ch. 905 ; L.E. 3 Ch. 651, Company F 84 in re Bolognesi's case, L.E. 5 Ch. 667, Company F 1 1 . , ex parte London and South -Western 160 Bank, 36 L.J. Ch. 807, Company E 82 . 187 , ex parte Wright, 37 L.J. Ch. 529, Com- pany F 123 . . . . 138 London and Northern Assurance Association, in re, Stace's and Worth's case, L.E. 4 Ch. 682, Company C 87 . > . .119 London and North-Western Eail. Act, 1861, in re, ex parte Corporation of Liverpool, 35 L.J. Ch. 656 ; L.E. 1 Ch. 596, Lands Clauses Acta . . . . . 316 Londm and North-Western Rail. Co. v. Cannock, Overseers of, 10 B. & S. 334 n. to Eegina v. Llantrissant, Bate 29 . . 519 V. Garnett, 39 L.J. Ch. 25; L.E. 9 Eq. 26, Covenant 7 . . .211 V. Lancasliire and Yorkshire Eail. Co., 36 L.J. Ch. 479 ; L.E. 4 Eq. 174, Injunc- tion 32 . . . . ■ . 289 V. West, 36 L.J. C.P. 245 ; L.E. 2 C.P. 563, Landlord and Tenant C . .305 London and Provincial Starch Co., Gower's case, Ij.E. 6 Eq. 77, Company E 112 . 136 London and Provincial Telegraph Co., in re, 39 L.J. Ch. 419 ; L.E. 9 Eq. 653, Company E 184 . . . . .147 London and Scottish Bank, in re, ex parte Logan, L.E. 9 Eq. 149, Company G 18 . 162 London and South-Western Bank, ex parte, in re London and Mediterranenn Banking Co., 36 L.J. Ch. 807, Company F 82 . . 157 FAOa London and South- Western Eail. Co., Direc- tors, &e. of, V. Blackmore and Clement, 39 L.J. Ch. 713; L.E. 4 E. & L App. 610, Lands- Clauses Act 7 S • v. Myers, 39 L.J. C.P. 67, Carrier 33 . V. Eeeves, 36 L.J. M.C. 239, H. & E. 845, Turnpike 3 . ex parte, 38 L.J. Ch. 627, Lands Clauses Act SO . Lands Clauses Act 59 in re, and in re Ilfracombe Public Con- veyance, &c. Co., L.E. 4 C.P. 161, Costs at Law 36 . . ... London Bank of Mexico and South America v. Hart, L.E. 6 Eq. 467, Pr. in Eq. WW i . London, Bombay and Mediterranean Bank, in re, Drews' case, 36 L.J. Ch. 786, Comr pany C 84 . . . . . in re, L.E. 1 Ch. 625, Company F 68 . Ijondon, Brighton and South Coast Eail. Co., in re, and in re Faithfull, L.E. 6 Eq. 328, Attorney 43 .... in re, ex parte Flower, 36 L.J. Ch. 193 ; L.E. 1 Ch. 599, Lands Clauses Act 82 London, Chatham and Dover Eail. Co. v. Imperial Mercantile Credit Association, L.E. 3 Ch. 231, Pr. in Eq. E 3 in re, in re Edmunds, 36 L.J. Ch. 638, Lands CI. Act 69 . London, Chatham and Dover Eail. Arrange- ment Act, in re, ex parte Hartridge and AUender, L.E. 6 Ch. 671, Injimction 2 London Cotton Manufacturing Company, in re. 35 L.J. Ch. 425 ; L.E. 2 Eq. 63, OrO.- pany F 100 .... London, Hamburg and , Continental Ex- change Bank, v. Henry, L.E. 7 Eq. 334, Company C 19 . , in re, Emmerson's case, and Toomb's case, 38 L.J. Ch. 652 ; 36 B. 518 ; L.E. 2 Eq. 231 ; (on App.) 36 L.J. Ch. 177; L.E. 1 Ch. 433, Company E 72, 78, 79 , in re, Evan's case, 36 'L.J. Ch. 501 ; L.E. 2 Ch. 427, Company E 2 , in re, Ward and Henry's case, 35 L.J. Ch. 662 ; L.E. 2 Eq. 226 ; (on App.) 36 L.J. Ch.462 ; L.E. 2 Ch. 431, Company^Tl 130 Company E 81 . . . . 1-31 , in re, Zulueta's Claim, 39 L.J. Ch. 361 ; L.E. 8 Eq. 270 ; (on App.) 39 L.J. Ch. 598 ; L.E. 5 Ch. 444, Comp. C 66 London India Eubber Co., in re, 35 L.J. Ch. 592 ; L.E. 1 Ch. 329, Company, 'E 2 in re (No. 2), 37 L.J. Ch. 232 ; 5 L.E. S Eq. 519, Company C 70 . London Marine Assurance Associaition, in re Andrew's and Alexander's case. Chat's case. Cook's case, and Crew's case, L.E. 8 Eq. 176 , Smith's case, 38 L.J. Ch. 681 ; L.E. 4 Ch. 61 1 ; Marine Insurance 1 London Mercantile Discount Co., in re, 35 L.J. Ch. 229 ; L.E. 1 Eq. 277, Company F 1 . London, Mexico and South America Banking Co. V. Hart, L.E. 6 Eq. 467, Practice in Eguity W W 4 . . . .463 319 81 696 314 317 203 463 119 155 36 320 452 318 285 169 110 130 122 116 149 117 345 149 TABLE OF CASES. 695 London Quays and Warehouses Co., in re, ex parte Haigh and others, 37 L.J. Ch, 397 ; L.R. 3 Gh. 394, Company F 69 London Wharfing Co., in re, 35 B. 37, CW •pany F 12 . Long's Settlement, in re, 38 L.J. Oh. 125, Ad- vancement 6 . . . Longmore v. Great Western Eail. Co., 35 L.J C.P. 135, NegVigmice 12 . LongbotLom v. Berry, 39 L.J. Q.B. 37 ; 10 B. & S. 854 ; L.R. 5 Q.B. 123, Fixtures 8 Longworth v. Yelverton, L.E. 1 Sc. App. 218, Scotch Law 5 . . . ' . Lord V. Colvin, 36 L.J. Ch. 354; L.E. 3 Eq. 737, Probate N 1 T. Jeflkins, 35 B. 7, Reversion 1. V. Lee, 37 L.J. Q.B. 121 ; 9 B, & S. 269 ; L.E. 3 Q.B. 404, Arbitration D 14 . T. Lord, in re Eleanor Lord's Estate, 36 L.J. Ch. 633 ; L.E. 2 Ch. 782, Leffocy 34 V. , re Lord's Estate, 36 L.J. Ch. 683 ; L.E. 2 Eq. 605, Pr. inEg.WW 6 . V. Midland Eail. Co., 36 L.J. C.P. 170 ; L.E. 2 C.P. 339, Carrier 13 Lord Advocate of Scotland v. Hunt, L.E. 1 Sc. App. 85, Scotch Law 17 V. St. Clair of Forss, L.E. 1 Sc. App. 174, Scotch Law 20 . T. Stevenson, L.E. 1 Sc. App. 411, ie- gacy Duty 6 . Lord -John Eussell, The, 38 L.J. Adm. 39; L.E. 2 A. & E. 354, Shipping Q 12 (nom. The Queen). . . . . Louis V. Louis, 35 L.J. P. & M. 92 ; L.E. 1 P. & D. 230, Divorce 92 . Lovat v. Eraser, L.E. 1 Sc. App. 24, Adminis- tration 5 . Lovell, in re, ex parte Lovel, 3^ L.J. Banlcr. 14 ; L.E. 1 Ch. 134, Bankruptcy 5 . Lovejoy v. Crafter, 35 B. 149, Wiil, Consir. H5. Low V. Eoutledge, 35 L.J. Ch. 114; L.E. 1 Ch. 42. See Eoutledge v. Low, Alien v. Wai-d, 37 L.J. Ch. 841 ; L.E. 6 Eq. 41 5, Copyright 8. . . . . Lowe's case, in re Hercules Insurance Co., 39 L.J. Ch. 458 ; L.E. 9 Eq. 589, Company F 86 {Transfer) . Lowes V. Euniiiey, L.E. 4 Eq. 451, Exor. 9 . Lucas V. Jones, 36 L.J. Ch. 602 ; L.E. 4 Eq. 73, Mortmain 1. . . . V. Eideout, L.E. 3 E. & L App. 153, Lease 7 ■ Ludlow V. Bunbury, 35 B. 36, Will Jj 15 . Lumsdpn's case, in re Blakeley Ordnance Co., L.E. 4 Ch. 31, Company E 63 Lunn V. London and North- Western Eail. Co., 35 L.J. Q.B. 105; L.E. 1 Q.B. 277, Railway 51 . Luscombe v. Steer, 37 L.J. Ch. 119, Produc- tion of whole Docutiwnt 19 . Lush's Trusts, in re, 38 L.J. Ch. 650 ; L.E. i Ch. 591, Saron ^ Feme 27 Lyall V. Jardine and others, 39 L.J. P.C. 43 ; L.E. 3 P.C. 318, Privy Council 15 . 155 160 383 265 531 487 524 26 . 330 463 77 533 533 331 657 236 43 618 18 196 132 266 376 324 626 129 608 489 59 472 Lyde v. Eastern Bengal Eail. Co. 36 B. 10, Company, Change of Business, Addenda 13 646 Lyle V. Eichards, 36 L.J. Q.B. 214; L.E. 1 E. & I. App. 222, Deed 4. . . 222 Lyne v. Fennell, and Lyne v. Leonard, 37 L.J. M.C. 65 ; 9 B. & S. 65 and 66 ; L.E. 3 Q.B. 156, Salmon Fishery 7 . , 529 V. Lyne and Blackney, 37 L.J. P. & M. 9 ; L.E. 1 P. & D. 508, Divm-ce 76 . . 234 Lyne's Estate, in re. Sands v. Lyne, L.E. 8 Eq. 482, Administration 25 . .7 Trusts, in re, 38 L.J. Ch. 471 ; L.E. 8 Eq. 65, Legacy 5 . . . . 326 Lyon V. Home, 37 L.J. Ch. 674 ; L.E. 6 Eq. ~ 665, Voluntary Settlement \\ . ■. 607 Lyon's case, in re English, &c. EoUing Stock Co., ^5 B. 646, -CoOTparey E 138 . . 140 Lys V. Lys, L.E. 7 Eq. 126, Partition 10 .405 Lyster's case, in re Tavistock Iron Works and Steel Ordnance Co., 36 L.J. Ch. 616 ; L.E. 4 Eq. 233, Compa«y E 111 . .136 Maber v. Maber, 36 L.J. Ex. 70; L.E. '2 Ex. 153, Limitations, Stat, of 18 . .339 McAndrew v. Chappell, 35 L.J. C.P. 281 ; H. & E. 746 ; L.E. 1 C.P. 643, Shipping D 9 . . . . . .546 Macartney v. Macartney, 36 L.J. P. & M. 38 ; L.E. 1 P. & D. 269, Divorce 67 . 234 M'Cann v. Borradaile, 37 L.J. Ch. 124, Pr. in Equity A A 1 . . . . 455 McCarrogher v. Whieldon and Whieldon v. MeCarroger, 36 L.J. Ch. 196; L.E. 3 Eq. 236, Marriage Settlement 26 . . 358 McCormick v. Grogan, L.E. 4 E. & I. App. 82, Will, Construction K 3 . . . 624 McCrae v. Clarke,- 35 L.J. C.P. 247 ; H. & E. 479 ; L.E. 1 C.P. 403, Sheriffs . . 538 McCrea V. Holdsworth, 35 L.J. Q.B. 123; 7 B-. & S. 307 ; L.E. 1 Q.B. 264, Copyright 9 196 M'Creight v. Foster, 39 L.J. Ch. 228 ; (on App.) ibid. 792; L.E. 5 Ch. 634, Vendors- Purchaser 37 ... . 604 McDermott v. the Judges of British Guiana, 38 L.J. P.C. 1 ; L.E. 2 P.C. 341, Colonial Law 14 . . . . .99 McDermott, in re, L.E. 1 C.P. 260, Privy Council 6 . . . . . 4^1 Macdonald v. Thompson, 38 L.J. C.P. 364 ; L.E. 4 C.P. 747, Bankruptcy 70 . .52 V. Lambe, 36 L.J. P.O. 70 ; L.E. 1 P.O. 339, Colonial Law 3 . . .97 McDougal V. Colonial Bank of Australasia, L.E. 3 P.C. 24, Company 4 . .108 McDougal's Patent, in re, 37 L.J. P.C. 17; L.E. 2 P.C. 1, Patent 34 . . . 415 McFadzen v. Mayor, &c., of Liverpool, 37 L.C. C.P. 193 ; L.E. 3 Ex. 279, Practice at Law 24 . . . . ' . 441 Macfarlane v. Taylor, L.E. 1 Sc. App. 245r Sale 5 . . . . .626 McGarel v. Moon, 39 L.J. Ch. 267; L.E. 10 Eq. 22, Practice in Eq. X 3. . 454 Pleading in Equity D 18 . . . 426 696 TABLE OF CASES. Macgregor Laird, The, 36 L.J. Adm. 10 ; L.E. 1 A. & E. 307, Admiralty C 10 .13 McHerry v. Davies, 39 L.J. Ch. 866 ; L.E. 10 Eq. 88, Baron # Feme 38 . .61 ^'. , L.E. 6 Eq. 462, Baron ^ F. 37 . 60 Mclmie's Patent, in re, 37 L.J. P.O. 23 ; L.E. 2 P.O. 54, Fateni 31 . . . 415 Mclver's Claim, in re International Life Assurance Society, L.E. 5 Ch. 422, Corn- pant/, Insurance, Addenda 20 . . 647 Mackechnie v. Majoribanks, 39 L.J. Ch. 604, Power 23 {Fraud on) . . . 434 McKenna, ex parte, re Lawrence, City Bank's ' case, 3 De G. F. & J. 629, Bank 5 . .40 Mackenna v. Parkes, 36 L.J. Ch. Z66,Partner- ship 16 (Premium). . . . 408 Mackenzie v. Bradbury, 35 B. 607, Will G 14 617 V. Coulson, L.E. 8 Eq., 368, Mar. Insurance 39 ... . 352 V. Forbes, Forbes v. Steven, 39 L.J. Ch. 485 ; L.E. 10 Eq. 178, Legaci/ Buty 1 . . 330 V. Gear, 36 L.J. Ch. 507 , L.E. 4 Ch. 2 n., Pr. in Eq.llll . . . 458 , ex parte, in re China Steam-ship Co., 38 L.J. Ch. 199 ; L.E. 7 Eq. 240 ; Company F9. . . . ' . 150 Mackenzie's Settlement, in re, 36 L.J. Ch. 320 ; L.E. 2 Ch, 345, Marr. Sett. 16 .357 Mackintosh t. Stuart, 36 B. 21, Voluntary Settlement 13 - . . .607 McLaren v. Baxter, 36 L.J. C.P. 247 '; L.E. 2 C.P. 559, Composition Dfed 22 . .171 Maclaren v. Stainton, L.E. 4 Eq. 448, Tenant for Life 8 . . . .578 McLellan v. Gumm and Hooper v. Gumra, 36 L.J. Ch. 605 ; L.E. 2 Ch. 282, Mortgage 16. 372 Shipping S . 557 Macleur" v. 'Macleur, 37 L.J. P. & M. 68 ; L.E. 1 P. & D. 604, Probate A. 8 . .475 Maclure, in re, ex parte English and Scottish Marine Insurance Co., 39 L.J. Ch. 685 ; L.E. 5 Ch. 737, Company G 22 . . 162 McManus v. Bark, 39 L.J. Ex. 65 ; L.E. 5 'Ex. 66, Bill of Exchange li . . 64 McMurdo, in the goods of, 37 L.J. P. & M; 14 ; L.E. 1 P.& D. 540, Will, Form. 35 . 640 McMiirray v. Spicer, 37 L.J. Ch. 505 ; L.E. 5 Eq. 627, Vendor ^ Purchaser 26 . . 602 Macknee v. Gorst, L.E. 4 Eq. 315, Factor 5 . 260 McNiell's case, in re Estates Investment Co., 39 L.J. Ch. 822 ; L.E. 10 Eq. 503, Com- pany E 135. . . .140 McEae v. London, Brighton and South Coast Eail. Co., 37 L.J. Ch. 267, Injunction 41 290 McVicar, in the goods of, 38 L.J, P. & M. 84 ; L.E. 1 P. & D. 671, Will, Formalities 64 613 Machynlleth Union, Guardians of, v. Pool, Overseers of, 38 L.J. M.C. 148 ; 10 B. & S. 653 ; L.E. 4 Q.B. 592, Poor 11 . .429 Mackle, in re, ex parte Blair, 39 L.J. Bankr. 45 ; L.E. 5 Ch. 482, Bankruptcy 96 . 54 Madan v. Madan and De Thoreu, 37 L.J. P. 6 M. 10, Divorce 87 . . . .235 Madrid Bank v. Bay! ey, 36 L.J. Q.B. 15: 8 B. & S. 29 ; L.E. 2 Q.B. 37, Pr. at Law 14 439 Madrid Bank v. Pelley, L.E. 7 Eq. 442, Com- pany C 20 . , in re, ex parte Williams, 36 L.J. Ch. 474 ; L.E. 2 Eq. 216, Company A 1. , Wilkinson's case, 36 L.J. Ch. 489 ; L.E. 2 Ch. 536, Company's 143. Maguire's Trusts, in re, 39 L.J. Ch. 710; L.E. 9 Eq. 632, Charity 9 . Maillard v. Page, 39 L.J. Ex. 235 ; L.E. 5 'Ej!.. 312, Bill of Exchange, 13 v. Milner, 38 L.J. Q.B. 49 ; 9 B. & S. 1002; L.E. 4 Q,.B. 149, Arrest 2 . Mainwaring's Settlement, in re, L.E. 2 Eq. 487, Marriage Settlement 2. ^ Marriage Settlement 34 . Mair v. Himalaya Tea Co., L.R. 1 Eq. 411 Sp. Perf. 9 . Maitland>'v. Chartered Mercantile Bank of India, China and London, 38 L.J. Ch. 363, Bill of Exchange W . Maitland's case, in re National Provincial Marine Insurance Co., 38 L.J. Ch. 554, Company F 66 Major V. Park Lane Co., L.R. 2 Eq. 453, Metropolitan BuHding 1 . Maiden, Overseers of, v. The Queen, 38 L.J. M.C. 125, Bate 14 . Mali Ivo, The, 38 L.J. Adm. 34 ; L.E. 2 A. & E. 356, Admiralty C 14 . Mallett V. Bateman, 35 L.J. C.P. 40 ; H. & E. 109 ; L.R. 1 C.P. 163, Frauds; Stat, of 2 268 Mallett's Patent, in re, L.E. 1 P.O. 308, Patent 35 -{Prolongatimt) . . .415 Mailing Union, Guardians of, v. Graham, 39 L.J. C.P. 74 ; L.E. 5 C.P. 21, Principal # 110 106 141 84 64 28 355 360 663 67 129 364 516 13 & D. 468 Surety 7 Mallinson v. Mallinson, L.E. 1 P. Divorce 40 (Desertion) . . V. , 35 L.J. P. & M. 84; L.E. 1 P. & D. 221, Divorce 96 . V. Siddle, 39 L.J. Ch. 426, Copyhold 10 . Mallorie's case, in re Leeds Banking Co., 36 L.J. Ch. 40; (on App.) ibid. 141 ; L.R. 2 Ch. 181, Company's. 160 . Malpas V. London and South- Western- Eail. Co., 35 L.J. C.P. 166 ; H. & E. 27 ; L.R. 1 C.P. 336, Carrier 20 . . . -79 Manby v. Eobinson, 38 L.J. Ch. 309 ; L.R. 4 Ch. 347, Interpleader 6 . Manceaux, ex parte, L.E. 6 Ch. 618, Paicni 16 . Manchester, Mayor, &c., of, v. Chapman, 37 L.J. M.C. 173, Public Health Act 19 Manchester Petition, Election, 38 L.J. C.P. 203, Parliament 6 Manchester and London Life Assurance and Loan Association, in re, ex parte Pike, and ex parte Thompson, 39 L.J. Ch. 595 ; L.E. 9 Eq. 643 ; (on App.) L.E. 5 Ch. 640, Company C 91 . Manchester Free Grammar School, in re, 35 L.J. Ch. 46 ; L.R. 1 Eq. 55 ; (on App.) 36 L.J. Ch. 544 ; L.E. 2 Ch. 497, ScJiool 3 530 Mangan v. Athcvton, 35 L.J. Ex. 161 ; 4 H. & C. 388 ; L.E. 1 Ex. 239, Negligence 23 . 386 231 236 194 143 295 412 496 394 120 TABLE OF CASES. 697 201 129 620 237 13 236 556 577 601 165 109 132 44 53 FAQE Mann v. Harbord and another, 39 L.J. Ex. 27 ; L.B. 5 Ex. 17, Costs at Law 29 Mann's ease, in re, Joint-Stook Discount Co., L.E. 3 Ch. 459 n., Compani/ F 61 . Manning y. Taylor, 35 L.J. Ex. 145; 4 H. & C. 382 ; L.R. 1 Ex. 235, WiU I 5 March v. March and Palumbo, 36 L.J. P. & M. 38 ; L.R. 1 P. & D. 437 ; (Ft C. of App.) 36 L.J. P. & M. 65 ; L.R 1 P. & D. 440, Divorce 106 . Margaret Jane, The, 38 L.J. Adm. 38 ; L.II. 2 A. & E. 345, Admiralty C 24 Margotson v. Margetson, 35 L.J. P. & M. 80, Divorce 94 .... Maria, The, L.E. 1 A. & E. 358, Ship. Q 3 . Marie Joseph, The, 35 L.J. P.O. 66 ; L.R. 1 P.O. 219, Stoppage in Transitu 6 . Marine Mansions Co.,- in re, 37 L.J. Ch. 113; L.R. 4 Eq. 601, Vendor ^ Purchaser IS . Company Gr 39 . Marino's case, in re Imperial Mercantile Credit Association, 36 L.J. Ch. 468; L.R. 2 Ch. 596, Company C 14 . Company E 90 {Registration) Marks v. Feldman, 38 L.J. Q.B. 220 ; 10 B. & S. 371 ; L.R. 4 a.B. 481 ; (Ex. Ch.) 39 L.J. as. 101 ; 10 B. & S. 378 ; L.R. 5 Q.B. 275, Bankruptcy 14 . V. Hall, 36 L.J. ft.B. 40; 7 B. & S. 839; L.R. 2 Q.B. 31, Composition Deed 74. 178 , in re, ex parte MarliS, 35 L.J. Bankr. 16; L.R. 1 Ch. 334, Bankruptcy 88 Mark's Trust Deed, in re, 35 L.J. Bankr. 22 ; L.R. 1 Ch. 429, Composition Deed, 108 Marlborough Club Co., in re, 35 L.J. 146 ; L.R. 1 Eq. 216, Company F 31 in re (No. 2), 37 L.J. Ch. 296 ; L.R. 5 - Eq. 365, Company E 34 . in- re, ex parte Percival, L.R. 6 Eq. 519, Company F 91 Marle/s case, and in re James, Kernaghan v. Dublin Connecting Rail. Co., 37 L.J. Q.B. 50 ; L.R. 3 Q.B. 47, Railway 40 . MarUug t. Stonehouse and Nailsworth Rail. Co., ZS L.J. Ch. 306, Parties 7 Marner's Trusts, in re, 36 L.J. Ch. 58 ; L.R. 3 Eq. 43a, Trust E 8 Married Woman, a, in re, 36 L.J. C.P. 233 ; L.R. 2 C.P. 610, Baron ^ Ftme 23 . Marriott v. AbelJ, 38 L.J. Ch. 451 ; L.R. 7 Eq. 478, WiU, Construction M 16 . Marsden v. City and County Assur.mce Co., 35 L.J. C.P. 60 ; H. & R. 53 ; L.R. 1 C.P. 232, Insurance 8 . Marseilles Extension Rail, and Land Co., in re, L.R. 4 Eq. 692, Company F 74 . . Marshall t. Emperor Life Assurance Society, 36 L.J. Q.B. 89; L.R. 1 Q.B. 35, Practice at Law 11. V. Galloway & Co., The Ocean Wave, L.R. 3 P.O. 206, Shipping Q 13 . Glamorgan Iron and Coal Co., 38 L.J. Ch. 69 ; L.R. 7 Eq. 129, Company C 80 . .V. Laverton, 39 L.J. Ch. 166; L.R. 9 Bq. 563, Will, Construction F 4 . Digest, 1865-70. 182 Ch. 162 126 . 158 506 404 . 692 59 630 293 156 . 439 557 114 616 Marshall r. Martin, 36 L.J. Ch. 281 ; L.R. 1 Eq. 369, Infant 1 . . . . 7. Ross, 39 L.J. Ch. 225 ; L.R. 8 Eq. 615, Trade-Mark 10 . . _ . Marson v. London, Chatham and Dover Bail. Co., 37 L.J. Ch. 483; L.R. 6 Eq. 101, Lands Clauses Act 10 . . . V. (No. 2), 38 L.J. Ch. 371 ; L.R. 7 Eq. 546, Lands Clauses Act 13. Martin v. Cooper, L.R. 3 Ch. -17, Power 29 . — — V. Great Indian Peninsular Co., 37 L.J. Ex. 27 ; L.R. 3 Ex. 9, Carrier 10 V. Headon, 35 L.J. Ch. 602 ; L.R. 2 Eq. 426, Injunction 9 . . . V. Holgate, 35 L.J. Ch. 789 ; L.R. 1 175, Legacy 13 . . . V. London, Chatham and Dover Rail. Co., L.R. 1 Eq. 145; (on App.) 35 L.J. Ch. L.R. 795 ; 1 Ch. 601, Lands Clauses Act 27 313 V. Mackonochie, Flamank v. Simpson, 36 L.J.Eccl.25; L.R. 2A.& E. 116, Church33 Y. , 35 L.J. Ch. 679 ; L.R. 2 Eq. 404, WiU, Construction I 20 Will, Construction L 5 . V. Martin, 39 L.J. Q.B. 85; L.R. 5 Q.B. 239, Costs at Law 17 V. , 37 L.J. Eccl. 17 ; (P.O.) 38 L.J. Eccl. 11 ; L.R. 2 P.C. 365, Church29 . V. , 39 L.J. Eccl. 11 ; L.R. 3 P.O. 52, Church 42 . . , . V. Powning, 38 L.J. Ch.-2I2; L.R. 4 Ch. 356, Composition Deed 111 Martin, William, in the goo^B of, 36 L.J. P. & M. 116; L.R. 1 P. & D. 380, WiU C 2 . Martin's Patent Anchor Co. v. Morton, and the Same v. Hewitt, 37 L.J. Q.B. 98; 9 B. & S. 183 ; L.R. 3 Q.B. 306, Company E 180 . ■Mary, The, or Alexandra, 38 L.J. Adm. 29 ; L.R. 2 A. & E. 319, Adtniralty C 7 -, The, L.R. 1 A. &E. 3S5, Admiralty!) i Mary Ann, The, 36 L.J. Adni. 6 ; L.R. 1 A. & E. 13, Shipping B 7 . Shipping K 1 . Mary Joseph, The, Pease v. Gloahec, 35 L.J., P.C. 66; L.R. 1 P.C. 219, Stoppage in Transitu 6 . Mason v. Bennett, 38 L.J. C.P. 48 ; L.R. 4 C.P. 502, Parliament 37 . . . V. Harris, 36 L.J. G.P. 101 ; H. & R. 328;- L.R. 1 C.P. 156, Parliament 41 Mason's Claim, in Te,»in re Drew's Estate, 35 L.J. Ch. 845 ; L.R. 2 Eq. 206 ; 36 B. 443, Land Registry Act 1 Masons' Hall Tavern Co., in re, ex parte Nokes, 37 L.J. Ch. 470; (on App.) ibid, 624, Company B 6 . , Habershon's case, L.R. 5 Eq. 286, Com- pany E 50 . Massey v. Sladen, 38 L.J. Ex. 34 ; L.R. 4 Ex. 13, BiU of Sale 9 .... V. Rowen, L.R. 2 E. & I. App. 288, Willf Construction I 33 . , i , ex parte, in re Freehold Land and Brick- making Co., 39 L.J. Ch. 492 ; L.R. 9 Bq. 367, Company F 93 (Costs). 4U 283 584 310 310 435 76 286 327 93 623 625 200 92 95 183 612 146 12 14 644 651 577 399 . 899 . 308 122 127 70 624 158 698 TABLE OF CASES. Masse/s case, in re Bamed's Banking Co., 39 L.J. Ch. 635, Banking 14 . .42 Mathers v. Green, 35 L.J. Ch. 1 ; L.E. 1 Ch. 29, Patent 19 {Co-patentees) . .413 Mathewman's case, in re Leeds Banking Co., 36 L.J. Ch. 90; L.E. 3 Eq. 781, Co. E 60 . 128 Mathews v. FouLsham, in re Gibson, 35 L.J. Ch. 696 ; L.E, 2 Eq. 669, Lcgactj 28 . 329 T. Keble, 37 L.J. Ch. 8; L.R.4 Eq. 467; (on App.) 37 L.J. Ch. 657 ; L.E. 3 Oh. 691, Thellusson Act .... 580 Mathieson v. Harrod, 38 L.J. Ch. 139 ; L.E. 7 Eq. 270, Copyright 3 . . .195 Matterson v. Elderfield, L.E. 4 Ch. 207, Priendli/ Society 6 . . . .272 Matthews v. Discount Corporation Co., L.E. 4 C.P. 228, Bailment i . . .39 v. Matthews, L.E. 4 Eq. 278, Will E 8 . 614 Mande, ex parte, in re Braginton, L.E. 2 Ch. 550, Bankruptcy 48 . . .48 Maughan V. Blake, 37 L.J. Ch. 109; L.E. 3 Ch. 32, Practice in Equity C 9 . .446 Y. Vinesherg, 37 L.J. C.P. 210; L.E. 3 C.P. 318, Arrest 6 . . .29 Maugher v. De Gallois, 36 L.J. P.O. 68 ; L.E. 1 P.O. 470, Colonial Law 26 . 102 Mauritius. Procureur and Advocate General, v. Yirginie Bruneau, 36 L.J. P.O. 56, Colonial Law 10 . . - . . .99 Maxondoflf's case, in re the Oriental Com- mercial Bank, 37 L.J. Ch. 471 ; L.E. 6 Eq. 582, Company G 1 . . .160 Maxted t. Paine, 38 L.J, Ex. 41 ; L.E. 4 Ex, 81, Stock Exchange 4 . . 572 V, (No. 2), 38 L.J, Ex. 129 ; L.E. 4 Ex. 203, Stock Exchange 5 Mauritz, in re, ex parte Giles, 39 L.J. Bkcy. 66 ; L.E. 5 Ch. 779, Bankruptcy 19 Mawson v. Fletcher, 39 L.J. Ch. 683 ; L.E. 10 Eq. 212, Vendor and Purchaser 21 Maxwell v. Hogg and Hogg v. Maxwell, 36 L.J, Ch. 433; L.E. 2 Ch. 307, Copyright 1 . 194 — — V. , 39 L.J. Ch, 698 ; L,E. E. & L App. 606, Administration 16 . .6 V. Hyslop, L.E. 4 Eq. 407, Administr. 14 6 . T."Wightwick, L.E. 3 Eq. 210, Costs in Equity 9 . . . . .203 May, in the goods of, 37 L.J. P. & M. 68 ; L.E. 1 P. & D. 576, Will, Eormalities 61 . 642 Mayer v. Harding, 9 B. & S. 27 n. a. ; L.E. 3 Q.B, 41 0, Justice cf the Peace 18 . .304 Mayn y. Mayn, L.E. 6 Eq. 150, Marriage > Settlement, Addenda 33 . . . 648 Maynard v. Gibson, and Griggs v. Gibson, 35 L.J. Ch. 457 ; L.E. 1 Eq. 685, Baron and Feme 29 . .60 , V, , and V. (No. 2), 35 L.J. Ch. 468, Power to charge Portions, Addenda S6. . . . - . 648 Meara t. Meara, 35 L.J. P. & M. 33, Divorce 36 . . . . .230, Medwii) V. Streeter, 38 L.J. C.P. 180 ; L.E. 4 C.P. 488, Farliairuni 50 . . . 401 Mee, c'x parte, in re Meo, 35 L.J. Banlir. 41 ; L.E. 1 Oh. 337, Bankruptcy 84 . 53 573 45 601 PAGE ^e, The, L.E. 1 A. & E. 77, Adm. ATG . 9 Mslsom V. Giles, 39 L.J. C.P. 326 ; L.E. 5 C.P. 614, Will M 24 . . .631 Memphis, The, L.E. 3 A. & E. 23, Adm. C 9 . 12 Mendham v. Williams, L.E. 2 Eq. 396, Will, Construction L 3 . . . . 625 Menhennet, Jane, ex parte, 39 L.J. C.P. 40 ; L.E. 6 C.P. 16, Baron and Feme 24 . 59 Mercantile and Exchange Bank v. Gladstone, 37 L. J. Ex. 130; L.E. 2 Ex. 233, Ship- ping A 7 . . . . . 541 Mercantile Credit Association, in re, 37 L.J. Ch. 295, Company F 61 . . .155 , in re Payne's case, L.E. 9 Eq. 223, Com- pany E 75 . . . . . 130 Mercantile Trading Co., in re. Stringer's case, 38 L.J. Ch. 698 ; 1 L.E. 4 Ch. 475, Company C 73 . . . . 117 Mercati's case, in re Accidental and Marine Insurance Co., 37 E.J. Oh. 56 ; L.E. 5 Eq. 22, Company :E j62 . . . .165 Mercer, in the goods of, 39 L.J. P. & M. 43 ; L.E. 2 P. & D. 91, Will, Formalities 16 .638 ¥. Peterson, 36 L.J. Ex. 218 ; L.E. 3 Ex. 304 ; (Ex. Ch.) L.E. 3 Ex. 105, Bank- ruptcy 8 . .. . . .43 V. Woodgate, 39 L.J. M.O. 21; 10 B. & S. 833 ; L.E. 5 Q.B. 26, Highway 6 . 278 Mercers' Co. v. Auction Mart, Pilgrim v. Auction Mart, and Dent v. same, .36 L.J. : Ch. 565 ; 'L.E. 2 Eq. 238, Injunction 14 . 286 Merchants' Co., in re, in re Breech Loading Co., L.E. 4 Eq. 453, Company F 59 . 165 , in re. Heritage's case, 39 L.J. Ch. 238 ; L.E. 9 Eq.'6, Company E 101 . . 134 Merchants' and Tradesmen's Assurance So- ciety, in re, L.E. 9 Eq. 694, Company 77 118 Merivale t. Trustees of Exeter Turnpike Eoad, 37 L.J. M.O. 40 ; 9 B. & S. 70 ; L.E. 3 Q.B. 149, Turnpike 11 . .596 Merrick's Trusts, in re, 36 L.J. Ch. 418 ; L.E. 1 Eq. 561, Will, Constr. M 7 . .629 Merry v. Hill, L.E. 8 Eq. 619, Will L 19 . 627 Merry's Trusts, in re, 36 L.J. Ch. 168, Settled Estates Act 6 . . . . 535 Mersey Docks and Harbour Board v. Camer- on, 35 L.J. M.O. 1, Bate 19 . . 517 V. Gibbs. Same v. Penhallon, 35 L.J. Ex. 225, Negligence 27 . . . 385 Messeena t. Carr, 39 L.J. Ch. 216 ;- L.E. 9 Eq. 260, Trust A 9 . . . .687 Mesnil, Baron De, v. Dakin, L.E. 3 Q,.B. 18, Shenffl . . . . .638 Metropolitan and Provincial Bank, ex parte, in re Blakeley Ordnance Co., L.E. 8 Eq. 244, Company G 3 {Proof) . . .166 Metropolitan Bank v. Oflford, 39 L.J. Ch. 820 ; L.E. 10 Eq. 398, PL in Eq. 12 . 425 Metropolitan Board of Works v. Clever, 37 L.J. M.C. 126 ; L.E. 3 P.O. 531, Metro- politan Buildfing 7 . . . .365 V. Sant, 38 L.J. Ch. 7 ; L.E. 7 Eq. 197, Jurisdiction in Equity 3 . . 299 and Balls, in re, 7 B. & S. 177, Lands Clauses Act 41 . . . 315 TABLE OF CASES. 699 Metropolitan Board of Works v. Mrtropolitan Rail. Co., 37 L.J. C.P. 281 ; L.R. 3 C.P. 612; (Ex. Ch.) 38 L.J. C.P. 172; L.R. i C.P. 192, Sewers 3 . Metropolitan. Bail. Warehousing Co., in re, 36 L.J. Ch. 827, Crnnpany F 43 . Mette's Estate, in re, 38 L.J. Ch. 446 ; L.E. 7 Eq. 72, Lands CI. Act bl. Mexican and South American Co., Shewell's case, ex parte Shewell, 36 L.J. Ch. 353 ; L.E. 2 Ch. 38T -Company E 96 . Meyefstein V. Barber, 36 L.J. C.P. 48; L.E. 2 C.P. ^8; (Ex. Ch.) 36 L.J. C.P. 289^ L.E. 2 C.P. 661. Shipping A 19 . Michael v. Fripp, 38 L.J. Ch. 29; L.R. 7 Eq. 95, Infant 7 . Midland Banking Co. v. Chambers, L.E. 7 Eq. 179; (on App.) 38 L.J. Ch. 478; L.E. 4 Ch. 398, Bankruptcy/ 50 . Midland Eail. Co. v. Checkley, 36 L.J. Ch. 380 ; L.E. 4 Eq. 19, Canal. — V. London and North-Westem Rail. Co., 35L.J. Ch. 831 ; L.R. 2 Eq. 524, Railway bH 609 Migotti's case, in re South Blackpool Hotel Co., 36 L.J. Ch. 631; L.E. 4 Eq. 238, Company E 3 Mildred v. Austin, L.E. 8 Eq. 280, Judgment 17 {Redemption) Miles V. Miles, 35 L.J. Ch. 315; 35 B. 192; L.E. 1 Eq. 462, Will, Constr. ^ 1 . Milford V. Milford, 36 L.J. P. & M. 30 ; L.E. 1 P. & D. 296 ; ' (H. L.) 37 L.J. P. & M. 77 ; L.R. 1 P. & D. 715, Bivorce 28 229 V. , 38 L.J. P. & M. 63, Divorce 93 236 Millard V. Bailey. 36 L.J. Ch. 312; L.R. 1 Eq. 378, Will, Constr. B 1 . Miller T. Cook, 40 L.J. Ch. 11 ; L.R. 10 Eq. 641, Usury. .... T. Huddlestone, 37 L.J. Ch. 421 ; L.R. 6 Eq. 65, Administration 23 V. Marriott, L.R. 7 Eq. 1, Partition 13 . V. Miller, 39 L.J. P. & M. 4 ; L.R. 2 P. &D. 13, Divorce 153 . T. , 39 L.J. P. & M. 38 ; L.R. 2 P. & J). 5il, Divorce 129 . V. , L.R. Eq. 499, Limitations, Stat. ofU Miller, in re, Burke v. Dublin Connecting ■Rail Co., 37 L.J. Q.B. 50 ; L.R. 3 Q.B. 47, Railway 40 . . . . ' . Miller's case, in re Lama Italian Coal Co., 36 - L.J. Ch. 837 ; L.R. 2Ch. 692, Company ¥76 166 Mills V. Borthwiek, 35 L.J. Ch. 31, Limita- tions, Statute of 15 . Mills T. Barlow, Tiel v. same, in re Tiel, 3 De a. F. & S. 426, Pr. inEq.BBlO V. Cobb, 36 L.J. C.P. 76 ; L.E. 2 C.P. 95, ParliaTnent 19 . V. Mayor, &e., of Colchester, 36 L.J. C.P. 210 ; L.E. 2 C.P. 476 ; (Ex. Ch.) 37 L.J. C.P. 278 ; L.E. 3 C.P. 575, Fishery 2 . 263 V. Northern Eail. of Buenos Ayres Co., L.E. 6 Ch. 621, Company C 54 . V. Trumper, L.E. 1 Eq. 671 ; (on App.) L.E. 4 Ch. 320, Apportimiment 1 . 537 153 . 316 133 543 284 48 75 122 298 . 613 612 597 7 405 . 241 239 338 506 338 456 397 115 20 Milnerv. Eawlings, 36 L.J. Ex. 250; L.R. 2 Ex. 249, Composition Deed 75 . . 178 Milton-next-Slttingbourne, Commissioners for Paving, ,&c. v. Faversham District Highway Board, TO B. & S. 548 n., Highway 19 . 280 Milward's Estate, L.E. 6 Eq. 248, Nines 8 . 368 Minerva Lodge v. Gladstone, in re, ex parte O'Donuell, 36 L.J. M.C. 99, Friendly Society 10 . . . . .273 Ming V. Ming, 36 L.J. P. & M. 61, Probate K 13 . . • . .484 Minna, The, L.E. 2 A. &E. 97, .4*)!. C 17 . 13 Minnehaha, The, L.R. 3 A. & E. 148, Adm. C8. . . . . 12 Minton v. Kerwood, L.E. 1 Eq. 449; (on App.) 37 L.J. Ch. 606; L.R. 3 Ch. 614, Deed 8 . . . . .223 Power 2 (Provision for Children). . 432 Specific Performance 17 . . .565 Mirfin V. Attwood, 38 L.J.' Q.B. 181; 9 B. & S. 414 ; L,E. 4 Q,.B.333, CostsatLaw 11 . 199 Mitcalfe v. Hanson, 35 L.J. Q.B. 225 ; L.R. 1 E. & I. App. 242, Bankruptcy 42 . 47 Mitchell, ex parte, in re Hull Forge Co., 36 36 L.J. Ch. 337, Company F 88 . . 158 V. Lee, 36 L.J. Q.B. 154; 8 B. & S. 9 L.R. 2 Q.B. 259, Attachment 1 .' .30 T. Sheward, 35 L.J. Ch. 393 ; L.R. 1 Eq. 541, Covenant 27 . / . .216 Mitchell's case, and Aspinall's ease, in re Bank of Hindustan, China and Japan, 39 L.J. Ch. 530 ; L.R. 5 Ch. 400, Composition Deed 118 . . . . , . 184 , in re Norwegian Charcoal Iron Co., 39 L.J.-Ch. 199;L.R. 9Eq. 363, Company'E.Q^ 129 Patent, in re, in re Brotherton's Patent, L.R. 2 Ch. 343, Pateni! 17 . . 412 Mitford's Estate, in re, see Birmingham Blue Coat School, in re, 35 L.J. Ch. 638 ; L.R. 1 Eq. 632, Pr. in Eq. C G 1 . . 456 Mody V. Gregson, 38 L.J. Ex. 12; L.R. 4 Ex. 49, Sale of Goods 2 . . .525 Moffat V. Bateman, L.R. 3 P.C. 116, Negli- gence 29 (Master) ... 380 Mollett V. Robinson, 3 L.J. C.P. 290 ; L.R. 5 C.P. 646, Principal ^ Agent 6 . .466 Molyneux, in re, ex parte Spencer, 4 De G. F, 6 S. 366, Lunatic 4 . . . 342 Montifiore v. Behrens, 36 B. 95 ; L.R. 1 Eq. 171, Forfeiture 2 . . . .266 V. Enthoven, 37 L.J. Ch. 43 ; L.R. 5 Eq. 35, Forfeiture 9. . 267 T. Eamsgate Victoria Hotel Co., 36 L.J. Ex. 90 ; 4 H. & C. 164 ; L.E. 3 Ch. 493, Company's. 19 . . . 124 Moody V. Corbett, 35 L.J. Q.B. 161 ; 7 B. & S. 644 ; L.E. 1 Q.B. 510, Lands CI. Act 78 . 319 Moon T. Andrew, 38 L.J. C.P. 97 ; L.R. 4 C.P. 461, Parlia?nent 61 . . . 402 Moonev. Rose, 38 L.J. Q.B. 226; 10 B. & S. 421 ; L.E. 4 Q.B. 486, Trespass 2 . 684 Mooney v. Robinson, Connolly v. Lusoombe, L.E. 3 E. & I. App. 139, Appeal, Addenda 3. 645 Moore v. Holgate, 35 L.J. P. & M. 46 ; I,.R. 1 P. & D. -101, Probate K 4 . . 488 4tj2 700 TABLE OF CASES. Moore v. Marrable, L.E. 1 Ch. 217, Specific Verf. 18 . . . . .665 V. Watson, 36 L.J. C.P. 122 ; L.E. 2 QS.%\i:,ArhUrati(m'Si . . .27 7. Webster, 36 L.J, Ch. 429 ; L.E. 3 Eq. 267, Baron ^ Feme 6 . . .67 Mordaunt v. Clarke, 38 L.J. P. & M. 45; L.E. 1 P. & D. 592, Probate K 2i . . 485 , V. Mordaunt, Cole v. Johnstone, 39 L.J. P. & M. 67; L.E. 2 P. & D. 109, Divorce 20 . . . . .228 Mordue v. Palmer, 39 L.J. Ch. 746 ; L.E. 6 Ch. 22, Arbitration C 2, D 2 . .24 Morgan v.'Puller, L.E. 2 Eq. 296, Patent 45 . 416 T. , L.E. 2 Eq. 297, Patent 48 .416 V. Hedger, L.E. 5 C.P. 485, Alhouse 11 18 V. McAdam, 36 L.J. Ch. 228, Trade- Mark 9 . . . . .684 V. Malleson, 39 L.J. Ch. 680 ; L.E. 10 Eq. 475, Trust A 5. . . .586 V. Metropolitan Eail. Co., 37 L.J. C.P. 265 ; L.E. 3 C.P. 563 ; (Ex. Ch.) 38 L.J. C.P. 87 ; L.E. 4 C.P. 97, Lands CI. Act 5 . 309 T. Middlemiss, 35 B. 278, Legacy 21 . 328 Y. Morgan, 39 L.J. Ch. 493 ; L.E. 10 Eq. 99, Deed 1 \ . . .222 Limitations, Stat, of 2 . . . 336 V. Morgan and Porter, 38 L.J. P. & M. 41 ; L.E. 1 P. & D. 644, Divorce 18 . 228 Divorce 154 (Costs) . . .241 V. Nieholl, 36 L.J. C.P. 86 ; L.E. 2 C.P. 117, Evidence 10 . . .251 V. Vale of Neath Eail. Co., 35 L.J. Q.B. ' 23 ; 7 B. & S. 123 ; L.E. 1 Q.B. 149, Master ^ Servant 10 . . . .361 in the goods of Samuel, 35 L.J. P. & M. 98 ; L.E. 1 P. & D. 214, Will, Form. 8 . 636 Morgan, Frances, a married woman, in the^ goods of, 36 L.J. P. & M. 64; L.E. 1 P. & D. 323, Probate B 33 . . 478 Moigan's Settled Estates, in re, L.E. 9 Eq. 587, Settled Estates 13 . . . 636 Moriarty T. London, Chatham and Dover Eail. Co., 39 L.J. Q.B. 109 ; L.E. 6 Q.B. 314, Evidence 3 . . . .250 Morland v. Cooke, 37 L.J. Ch. 825 ; L.E. 6 Eq. 252, Covenant 17 . . 213 Morley v. Saunders, in re Morley, 38 L.J. Ch. 552 ; L.E. 8 Eq. 594, Set-off?, . . 634 Morphettv. Morphett, 38 L.J. P. & M. 23; L.E. 1 P. & D, 702, Divorce 33 . . 230 Morris v. Ashbee, L.E. 7 Eq. 34, Copyright 14, (l) (Works of Reference) . . .197 V. Bethell, 38 L.J. C.P. 377 ; L.E. 4 C.P. 765, Pr. at Law 15 . . 440 V. , L.E. 6 C.P. 47. Estoppel 3 . 248 V. Joflfries, 35 L.J. M.C. 143; L.E. 1 0,3. 251, Turnpike li . . .596 T. Ogden, 38 L.J. C.P. 329; L.E. 4 C.P. 687, Church 36 . . .93 V. Wright, L.E. 5 Ch. 279, Copyright 15 197 ex parte, in re Duke of Newcastle, L.E. 5 Ch. n% Bankruptcy 29, . . . 46 Morri.son, ex parte, in re Sullivan v. Pearson, L.E. 4 Q.B. 153, Attorney 46 . .37 Morrison's Assigns, ex parte, in re State Fire Insurance Co., 36 L.J. Ch. 634, Company A 4 107 Company C Z2 {Directors) . .112 Mortimer v. Bell, 35 L.J. Ch. 25 ; L.E. 1 Ch. 10, Auction 1 (Puffer) . . .38 V. Paul, 39 L.J. P. &'M. 47; L.E. 2 P. & D. 86, Probate D 3 . . .480 Morton v. Woods, 37 L.J. Q.B. 242; 9 3. & S. 632 ; 3 Q.B. ( 58 ; (Ex. Ch.) 38 L.J. Q.B. 81 ; 9 B. & S. 650; L.E. 4 Q.B. 293, Attornment 2 , • ^ .37 Morton, ex parte, in re Oxford and Canter- bury Hall Co., 38 L.J. Ch. 390, Company E 183 ■ . . . .. 147 Moseley v. Cressey's Co., 35 L.J. Ch. 360; L.E. 1 Eq. 406, Company E 30 (Allotment) 126 V. London and Burton Steam Cooperage Co., 35 L.J. Ch. 360, Company E 174 . 145 Moss, ex parte, in re Cooper, 37 L.J. Bankr. 1 ; L.E. 3 Ch. 29, Bankruptcy, Addenda 6 645 in re, 36 L.J. Ch. 654; 35 B. 626; L.E, 2 Eq. 345, Attorney il ■ V. African Steam Ship Co., The Calabar, L.E. 2 P.O. 238, Shipping Q 14 . V. Anglo-Egyptian Navigation Co., 35 L.J. Ch. 179; L.E. 1 Ch. 108, Pl.inEq. ? V. Barton, 35 B. 197; L.E. 1 Eq. 474, Lease 4 . V. Edwards, 37 L.J. Eccl. 89, Church 46 Mostyn v. Mostyn, ex parte Barry, 39 L.J. Ch. 780 ; L.E. 5 Ch. 457, Counsel 2 Motion, in re, ex parte Bass, 36 L.J. Bankr. 39, Bankruptcy 47 ... Moule v. Garrett, 39 L.J. Ex. 69 ; L.E. 5 Ex. 132, iease7_ .... Mouncey v. Eobinson, 37 L.J. Eccl. Church 47 Mounsey V. Earl of Lonsdale, Attorney General V. Earl "f Lonsdale, L.E. 10 Eq. 567, Costs in Eq., Motion, Addenda 22 M6unt V. Taylor, 37 L.J. C.P. 325 ; L.E. 3 C.P. 645, Costs at Law 8 . Statute 8 . Mounstephen v. Lakeman, 39 L.J. Q.B. 275; L.E. 6 Q.B. 613, Frauds, Stat, of 1 Mower's Trusts, L.E. 8 Eq. 110, Mortgage 28 . 374 Moxey V. Bigwood, 4 De G. F. & J. 351, Vendor and Purchaser 34 . Moxon V. Bright, L.E. 4 Ch. 292, Account 3 . Moyee v. Burmonia, ex parte Kigto Nauth Eoy, 38 L.J. P.O. 20; L.E. 2 P.O. 274, Privy Council 18 . Mudge V. Eowan, 37 L.J. Ex. 79; L.E. 3 Ex. 86, Bankruptcy 40 . Muggeridge, in re, Muggeridge v. Sharp, ex parte Bank of London and National Provin- cial Insurance Association, 39 L.J. Ch. 620 ; L.E. 10 Eq. 443, Company E 59 Mulcahy v. The Queen, L.E. 3 E. & I. App. 306, Treason 1 . Mule V. Garrett, 39 L.J. Ex. 69 ; L.E. 6 Ex. 32, Lease 7 .... Mullett V. Mason. 35 L.J. C.P. 299 ; H. & E. 779 ; L.E. 1 C.P. 559, Damages 8 . Mullings V. Trinder, 39 L.J. Ch. 833; li.E. 10 Eq. 449, Specific Performance 16 . 565 36 567 424 323 95 206 48 324 95 647 199 571 . 268 604 2 473 47 128 . 584 324 . 218 TABLE OF -CASES. 701 MuUins V. Hussey, 35 L.J. Ch. 649 ; 35 B. 301 ; L.E. 1 Eq. 488, Compromise 1 . 185 V , 36 L.J. Ch. 348, Costs in Eq. 23 . 204 Mumby v. Mumby, 38 L.J. P. & M. 72 ; L.E. 1 P. & D. 701, Divorce 69 . . 234 Munns v. Isle of Wight Kail. Co., L.E. 8 Eq. 653 ; (on App.) 39 L.J. Ch. 522 ; L.E. 5 Ch. 414, Railway 60 . 510 Munster, ex parte, in re Land Credit Co., &c. V. Lord Fermoy, 39 L.J. Ch. 477 ; L.E. 5 Ch. 323, Practice in Equity Y Y . .463 Munton's Trusts, in re, 39 L.J. Ch. 764, Trust E 13 . . . . .593 Mnntz Metal Co., in re, 39 L.J. Ch. 704, Com- pany C 66 . . . . .116 Murphy v. Glass, L.E. 2 P.C. 408, Pleading at Law, {Equitable Plea) Addenda 34 . 648 Murray v. Burgess, 36 L.J. P.C. 44 ; L.E. 1 P.C. 362, Colonial Law 15 . . . 100 Murray, Grenville, v. Earl of Clarendon, 39 L.J. Ch. 221 ; L.E. 9 Eq. 11, Pleading in Equity 2 . . . . 423 Musgrave's case, in re Overend, Gurney & Co., 37L.J. Ch. 161 ; L.E. 5 Eq. 193, Com- pany E 192 . . ■ . .148 Muskerry, Lord, v. SkeflBngton, L.E. 3 E. & I. App. 144, Practice in Equity C C 4 . 456 Mutusawmy v. Vencataswara Yettia, 35 L.J. P.C. 37 ; L.E. 1 P.C. 1, PHvy Council 3 . 471 Mycock V. Mycofik, 38 L.J. P. & M. 66 ; L.E. 2 P. & D. 98, IHmrce 66 . . 233 Myers v. London and South-Western Eail. Co., 39 L.J. C.P. 57 ; L.E. 5 C.P. 1, Car- rier 33 . . . . .81 V. Veitch, 38 L.J. Q.B. 316; L.E. 4 Q.B. 649, Bankruptcy 78 . . .52 Nanson v. Barnes, L.E. 7 Eq. 250, Descent 2 . 223 Naoroji v. Chartered Bank of India, 3 L.J. C.P. 221 ; L.E. 3 C.P. 444, Bankruptcy 55 49 Nash V. Coombs, 37 L.J. Ch. 600; L.E. 6 Coombes ; L.E. 6 Eq. 61, Land CI. Act 43 316 V. Dickenson, L.E. 2 C.P. 252, Sheriff 14 539 , T. Lucas,, 8 B. & S. 631 ; L.E. 2 Q.B. 590, Landlord and Tenant 14 . . 307 . ... V. Nash, 37 L.J. Ch. 927, L. CI. Act 70. 318 Nash's case, in re National Einaneial Co., 36 L.J. Ch. 811, Company C 85 . . 119 Natal Investment Co., in re, ex parte Finan- cial Corporation, 37 L.J. Ch. 362 ; L.E. 3 Ch. 35'6, Company G il . . .165 in re, Snell's case, L.E. 6 Ch. 22, Com- pany E 8 . . . . .122 Natal, Bishop of, v. Gladstone, 36 L.J. Ch. 2 ; L.E. 3 Eq. 1, Church 1 . . .86 Natal Land and Colonisation Co. v. Good, L.E. 2 P.C. 121, Mortgage 18 ■ . . 372 Nation's case, in re Joint-Stock Discount Co., 36L.J.Ch. 112; L.K. 3Eq.77, Compy.'E.89 132 National Bank, in re, in re Imperial Land Co. of Marseilles, 39 L.J. Ch. 331 ; L.K, 10 Eq. 298, Compani C 5 . . .108 National Bank of Australasia v. Cherry, L.E. 3 P.C. 299, Statute 6 . . .570 National Bank of England, ex parte, in re Van Wart, L.E. 4 Ch. 63, Composition Deed 52 . . , . . .176 National Discount Company -v. Mid -Wales Eail. Co., 35 L.J. C.P. 206 ; H. & E. 508 ; L.E. 1 C.P. 499, BaUway 13 . .502 National Financial Co., in re, ex parte Orien- tal Commercial Bank, L.E. 3 Ch. 791, Company's, 162 ., . . - . 144 , Nash's case, 36 L.J. Ch. 811, Company C 86 . . . . . 119 National Insurance and Investment Associa- tion, Mrs. Davies' case, 4 De G. F. & J. 78, Insurance 1 .... 292 National Permanent Benefit Building Society, in re, ex parte Williamson, L.E. 5 Ch. 309, Friendly Society 18 . . . 274 National Provincial Life Assurance Society, in re, ex parte Fleming and ex parte Kettle, 39 L.J. Ch. 250 ;,L.E. 9 Eq. 306, Comp. C 76 118 National Provincial Marine Insurance Co., in re Maitland's case, 38 L.J. Ch. 554, Company E 66 . . . .129 , in re, ex parte Parker, L.E. 2 Ch. 685, Company's 7S ■ ■ ■ .130 in re, Gilbert's case, 39 L.J. Ch. 837 ; L.E. 5 Ch. 659, Company C 17 . . 108 National Savings' Bank Association v. Tranah, 36 L.J. C.P. 260 ; L.E. 2 C.P. 666, Bill of Exchange 33 . . . .67 in re, 35 L.J. Ch. 808 ; L.E. 1 Ch. 647, Company 'F M . . . • . 150 in re, Hebb's case, 36 L.J. Ch. 748; L.E. 4 Eq. 9, Company E 10, 12 . .123 Nawab Sidhee Nuzer Ally Khan v. Eajah Ooioodhyaram Khan, 36 L.J. P.C. 21 ; L.E. 1 P.C. 8, Privy Council 12 . . . 472 Neam v. Moorsom, 36 L.J. Ch. 274; L.E. 3 Eq. 91, Land Tax 2 . . .320 Needham v. Bremner, 35 L.J. C.P. 313 ; H. & E. 731 ; L.E. 1 C.P. 683, Evidence 17 . 262 Needham's case, in re Blakeley Ordnance Co., 36L.J. Ch. 665;L.E. 4Eq. 135, CoTOp.E41 126 Needham to Johnson, Taylor to Bentley, in re, 8 B. & S. 190, BiU of Sale 7 . .70 Neill V. Whitworth, 35 L.J. C.P. 304 ; H. & E. 832 ; L.E. 1 C.P. 684, Sale 8 . 527 Neill's case, in re Accidental and Marine In- surance Corporation, 38 L.J. Ch. 201 ; L.E. 4 Ch. 266, Company F 36 . . .126 Nelson v. Nelson and Howson, L.E. 1 P. & D. 510, Divorce 186 .. . 242 v. Page, 38 L.J. Ch. 138 ; L.E. 7 Eq. 25, Administration 11 . . .6 Nepoter, The, 38 L.J. Adm. 63 ; L.E. 2 A. & E. 375, Shipping A 13 . . .542 Nesserwanjee, ex parte, Symon's case, in re ' Asiatic Banking Corporation, 39 L.J. Ch. 461 ; Company E 70 . . .1*30 Neville, ex parte, in re Lee, a solicitor, L.E. 4 Ch. 43, Attorney 28 . ' . .35 Nevin v. Drysdale, 36 L.J. Ch. 662; L.E. 4 Eq. 517, Legaey 29 . . . 329 New V. Bonaker, 36 L.J. Ch. 846 ; L.E. 4 , Eq. 658, Charity 12 . . . ^4 702 TABLE OP CASES. 297 . 475 L.E. 3 164 Newall V. Telegraph Construction and Main- tenance Co., 35 L,J. Oh. 827 ; L.R. 2 Eq. 766, Production 7 ■ ■ -488 Newbery, in re. L.E. 1 Eq. 431 ; (on App.) 35 L.J. Ch. 330 ; L.B. 1 Ch. 263, Infant 2 . 283 Newbold, Thomas, in the goods of, 36 L.J. P. & M. 14 ; L.R. 1 P. & D. 285, Probated 25 477 Newcastle, Duke of, in re, ex parte Morris, L.E. 5 Ch. 172; (on App.) snb nom. Duke of Newcastle v. Morris, 40 L.J. Bankr. 4 ; L.E. 4 E. & I. App. 661, Bankruptcy/ 28 . 46 in re, ex parte Padwiek, 39 L.J. Ch. 68 ; L.E. 8 Eq. 700, Judgment 11. Newcombe v. Beloe, 36 L.J. P. & M. 37 L.E. 1 P. & D. 314, Probate B 7 . New Clydach Sheet and Bar Iron Co L.E. 6 Eq. 514, Company G 35 Newell V. Eadford, 37 L.J. C.P. 1 ; C.P. 52, Fraud,s, Stat, o/ 14 Newington v. Levy, 39 L.J. C.P. 334 ; L.E 5 C.P. 607 ; 40 L.J. C.P. 29 ; L.E. 6 C P. 180, Pleaditig at Law 7 . " . .421 Newling v. Dobell, 38 L.J. Ch. Ill, Covnt. 5 211 Newman, in re, 36 L.J. Ch. 843; L.E. 2 Ch. 707, Attorney 40 V. Newman, 39 L.J. P. & M. 36 ; L.E, 2 P. & D. 57, Divorce 3 7. New Quebrada Co. v. Carr, 38 L.J. C.P, 283; L.E. 4 C.P. 651, Bankniptcy^l Set-off i . . . . New Quebrada Co., in re Pontifex's case, 36 L.J. Ch. 903, Company E 98 Newton v. Newton, 37 L.J. Ch. 705 L.E. 6 Eq. 135; (on App.) 38 L.J. Ch 145 ; L.E. 4 Ch. 143, Trust D 8 . Newton's Trusts, in re, 37 L.J. Ch. 23 : L.E. 4 Eq. 171, Will, Constr.B. 20 New Sarum, Election Petition, Eyder Hamilton, 38 L.J. C.P. 260 ; L.E. 5 C.P, 559, Pailiament 17 New Shoreham Harbour Commissioners t, Overseers of the Parish of Lancing, 39 L.J. M.C. 121 ; L.E. 5 Q.B. 489, Rates 9 New Zealand Banking Ctyporation, ex parte re Blakeley Ordnance Co., 37 L.J. Ch. 418 L.E. 3 Ch. 154, Company G 37 in re, 39 L.J. Ch. 128, Company E 106 . in re. Levy & Co.'s case, L.E. 7 Eq. 449, Bill of Exchange, 35 . . in re, ex parte Bank of Hindustan Hickie & Co.'s case, 36 ' L.J. Ch. 809: L.E. 4 Eq. 226, Bill of Exchange 34 in re, SeweU's case, L.E. 3 Ch, Company C 47 . Ney T. Macdonald, 39 L.J. P.C. 34 ; 3 P.C. 311, Conflict of Laws 7 NichoU V. Jones, 36 L.J. Ch. 554 ; L.E. i Eq. 696, Baron and Femje 22 Practice in Equity V V 3 . NichoU's Trust Estates, in re, 35 L.J. Ch SI 6, Lands Clauses Act 66 NichoUs V. Davies, 38 L.J.' C.P. 127; L.E, 4 C.P. 80, Church 9 Nicholson V. Bradfield Union, 36 L.J. Q.B. 176; 7 B, & S. 744; L.E.1 Q.B. 620, Contract 7 189 131 L.E. 270 36 228 49 534 133 591 620 396 515 164 159 114 188 59 453 317 FAQE Nicholson, ex parte, in re Nicholson, L.E. 5 Ch. Wi, Composition Deed \8 . .170 Nicol V. Paul, L.E. 1 Sc. App. 127, Scotch Law 22 . .' . . .533 Nixon V. Albion Marine Insurance Cd., 36 L.J. Ex. 180; L.E. 2 Ex. 338, Jurisdiction at Law 1 . . . . .298 Nina, The, La Blanche, v. Eengel, 37 L.J. Adm. 17 ; L.E. 2 A. & E. 44 and 2 P.C. 28, Admiralty A- IZ . . ■ .10 Noble V. Noble and Godman, 38 L.J. P. & M. 52 ; L.E. 1 P. & D. 691, Divorce 130 . 239 V. Ward, 35 L,J. Ex. 81 ; 4 H. & C. 149; L.E. 1 Ex. 117; (Ex. Ch.) 36 L.J. Ex. 91 ; L.E. 2 Ex. 135, Frauds, Statute o j 15 . . . . . ,270 V. Toysey, 39 L.J. Eccl. 21 ; L.E. 3 P.C. 357, Chm-ch 34 . - . . .93 Noblett V. Noblett, L.E. 1 P. & D. 651, Di- vorce 84. . . . . . 233 Noke's case, in re Mason's HaU Tavern Co., 37 L.J. Ch. 470 ; (on App.) ibid. 624, Company E 6 . . . .122 Norbiirn v. Hilliam, 39 L.J. C.P. 183 ; L.E. 6 C.P. 129, Practice at Law 41 . .443 Normand'.s Patent, in re, L.E. 3 P.C. 193, Patent, 36 . . . . . 415 Normandy, The, 39 L.J. Adm. 48 ; L.E. 3 A. & E. 152, Admiralty 18 . .10 Norris v. Caledonian Insurance Co., 38 L.J. Ch. 721"; L.E. 8 Eq. 127, Mortgage 34 . 375 V. Harris ; Gillam, Mason, Adams, \ Prout, Berry and Hodges v. same, 35 L.J. C.P. 101 ; H. & E. 328 ; L.E. 1 C.P. 155, Parliamsnt il . . . .399 v. Town Clerk of Hastings; Andrews' case, Imeson's case, L.E. 4 C.P. 498, Par- liament 35 . . . . . 399 V. Pilcher, 38 L.J. C.P. 69; L_R. 4 CP. in. Parliament 53 . . .401 Norris, ex parte, in re Biddulph, 38 L.J, Bank. 5 ; L.E, 4 Ch. 280, Trust C 6 . 589 North V. Hoboyd, 37 L.J. Ex. it ; L.E. 3 Ex. 69, Coun/y Court 26 . . . 209 North British Eail. Co. and Trowsdale, in the matter of an arbitration between, 35 L.J. C.P. 262 ; L.E. 1 C.P. 401, Arbitration 1) 8 {Motion to set aside award, time for) . 26 North and South Wales Bank, Claim of, in re Wynn Hall Coal Co., 39 L.J. Ch. 696; L.E. 10 Eq. 515, CoOTpa«y G 48 . , . 166 . North-Eastern Eail. Co. v. Leadgate Local Board, 39 L.J. M.C. 65 ; L.E. 5 Q.B. 157, Public Health Act 23 . . . . 497 V. Mayor, &e. of Tynemouth, 37 L.J. M.C. 183 ; L.E. 3 Q.B. 723, Public Health Actl . .' . . . 492 V. Sandgate Local Board, 38 L.J. Q.B. 135, Eate 25 . . . .518 V. Scarborough Local Board of Health, 38 L.J. M.C. 65 ; L.E. 4 Q.B. 163, Public Health Act, 22 . . ... 496 North Hallenbeagle Tin and Copper Mining Co., ex parte Knight, 36 L.J. Ch. 317; L.E. 2 Ch. 321, Company :E 117 . . 137 TABLE OF CASES. y03 FAQB North Kent Extension Eail. Co., in re, L.R, 8 Eq. 366, BaUway 67 . ■ _ • North of England, &c. Insurance Association, V. Armstrong, 39 L.J. Q.B. 81 ; L.R. 6 Q,.B. 244, Marine Insurance 38 North Staffordshire Eail. Co. v. Tunstal Local Board of Health, 39 L.J. Ch. 131, Nuisance 5 . North Staffiirdshire Steel, Iron and Coal Co., Burslem v. Ward, 37 L.J. Ex. 83 ; L.E. 3 Ex. 172, Company E 54 . . , in re, ex parte Ward, 37 L.J. Ex. 83 ; L.R. 3 Ex. 180, Company E 191 . Northern Assam Tea Co., in re, ex parte Galsworthy, 39 L.J. Ch. 468; L.R. 5 Ch. 644, Company F 71 . . , ex parte ITniTersal Life Assurance Co., 39 L.J. Ch. 829 ; L.R. 10:Eq. 458, Company G32 Set-off9 .... • Northumberland, Duke of, v. Houghton, 39 L.J. Ex. 66 ; L.R. 5 Ex. 127, Fishery 3 Northumbria, The, 39 L.J. Adm. 3; L.R. 3 A. & E. 6, Shipping E 15 . The, 39 L.J. Adm. 4 ; L.R. 3 A. & E. 24, Mmiffalty 19 . Norton, in re, ex parte Todhunter, 39 L.J. Bankr. 17 ; L.R. 10 Eq. 425, Bankruptcy 39 . TTorwegian Titanic Iron Co., 35_ B. 253, Company F 40 . Norwegian Charcoal Iron Co., in re, Mitchell's case, 39 L.J. Ch. 199 ; L.R. 9 Eq. 363, Company F 69 . Norwich, Bishop of, v. Berney, 36 L.J. Eccl. 8; (P.C. subnom. Berney V. Bishop of Nor- wich), ibid. 10, Church 43 . V. Pearse, 37 L.J. Eccl. 90 ; L.E. 2 A. & E. 281, Church 44 Norwich Election Petition, Tillett v. Stracey, 39 L.J. C.P. 93 ; L.R. 5 C.P. 185, Farlia- Tnent 13 . . . . • Norwood, Overseers of, i'. St. Pancras, Over- seers of, 36 L.J. M.C. 91 ; L.R. Q.B. 457, Pour 10 ..... Nosotti V. Hudson, 37 L.J. C.P. 136 ; L.R. 3 C.P. 293, Practice at Law 60 . V. Jefferson, in re De Geyt's Estate, 3 De G. J. & S. 570, Executor 10 N'otara v. Henderson, 39 L.J. Q.B. 167; L.R. 5 Q.B. 346, Shipping K 6 . Notley V. Palmer, L.R. 1 Eq. 241, Pr. in Eq. DD3 . . ' ■ Nott V. Bound, L.R. 1 Q.B. 405, L. # T. 15 . V. Nott, 36 L.J. P. & M. 10; L.R. 1 'P. Si,!). 2bl, Baron and Feme il . Nowell V. Nowell, L.R. 7 Eq. 538, Partner- ship 10 . Nugent V. Vetsera, 35 L.J. Ch. 777; L.E. 2 Eq. 704, Infant 5 . Practice in Equity MM 2 Nunes V. Carter, 36 L.J. P.C. 12; L.R. 1 P.C. 342, Colonial Law 22 . Nunnv. Fabian, 35 L.J. Ch. 140; L.R. 1 Ch. Sb, Frauds., Stat, of, 18 511 352 128 . 148 . 156 164 535 263 548 10 47 153 129 95 . 95 396 429 444 256 551 457 307 . 61 . 407 284 460 102 270 Nunneley, ex parte, in re Times, Life Assu- rance and Guarantee Co., 39 L.J. Ch. 297 ; L.E. 9 Eq. 382; (App. L.J.G.) 39 L.J. Ch. 527 ; L.E. 3 Ch. 381, Company C 89 . 120 Nxirs6,tn re, ex parte Foxley, L.R. 3 Ch. 516, Bankruptcy 12 . . . .44 Nuttall V. Bracewell, 36 L.J. Ex. 1 ; 4 H. & C. 714; L.E. 2 Ex. \, Watercourse I . 608 -, in re, ex parte Eaistrick, 37 L.J. Bankr. 12, Composition Deed 7 . . 169 Nye V. Macdonald, 39 L.J. P.C. 34 ; L.E. 3 F.G. 311, Conflict of Laws, 7 . .188 Oake V. Moorecroft, 39 L:J. Q.B. 18 ; 10 B. & S. 848 ; L.E. 8 Q.B. 76, Pr. at Law 9 . Oakesand Peek's cases, in re Overend, Gurney & Co. 36 L.J. Ch. 233 Company E 127 . No. 2, 36 L.J. Ch. 413 ; L.E. 3 Eq. 576, Company E 127 . Oakes v. Turquand and Peek v. Turquand, 36 L.J. Ch. 949 ; L.E. 2 E. & I, App. 325, Company's 127 . Oakley V. Monck, 35 L.J. Ex. 87; 4. H. & C. 251 ; L.E. 1 Ex. 159, Land, and Tenant 20 V. Wood, 37 L.J. Ch. 28, WUl I 2, I 9 . Obey, The, L.E. 1 A. & E. 102, Shipping E It . O'Brien v. Brodie, 35 L.J. Ex. 188 ; 4 H. & C. 544 ; L.E. 1 Kx. 302, Bankruptcy 63 . V. Maitland, 4 De G. & J. 331, Practice in Equity W 1 . Ocean Wave, The, Marshall v. Galloway, L.E, 3 P.C. 205, Shipping QJ3 . O'Donnell, ex parte, in re Minerva Lodge v. Gladstone, 35 L.J. M.C. 99 ; L.E. i Q.B. 274, Friendly See. 10 . . . Ogilvie V. Currie, 37 L.J. Ch. 541, Company E 151 Oglev. Earl Vane, 36 L.J. Q.B. 175; 7 B. & S. 855; L.E. 2 Q.B. 275; (Ex. Ch.) 37 L.J. Q.B. 77 ; 9 B. & S. 182 ; L.E. 3 Q.B. 272, Damages 4 . . . V. Knipe, 38 L.J. Ch. 692 ; L.E. 8 Eq. 434, Will, Constr. E 10 Oldlield and Grey, ex parte, in re Oldfield, 3 De G. J. & S. 250, Comp. Deed 1 . Oldis V. Armston, 36 L.J. Ex. 181 ; L.R. 3 Ex. 406, Composition Deed 29 Oldham v. Oldham, 36 L.J. Ch. 205 ; L.R. 3 Eq. 40 1, Forfeiture 3 . . ~ Oldreive v. Piickridge, 37 L.J. Ex. 90; L.R. 3 Ex. 148 n.. Costs at Law 8 O'Loughlin, in the goods of, 39 L.J. P. & M. 63 ; L.R. 2 P. & D. 102, Will F 6 . Ord V. Ord, L.R. 2 Eq. 393, Will R 1 Oliver, in re, 36 L.J. Ch. 261, Attorney 33 . Olver V. Johns, 39 L.J. P. & M. 7, Will. 26 . Orient, The, 39 L.J. Adm. 8, Admiralty B 3 , The, 39 L.J. Adm. 10, Admiralty C 5 . Oriental Commercial Bank, ex parte, in re National Financial Co. L.E. 3 Ch. 791, Company E 162 . in re, ex parte European Bank, 39 L.J. Ch. 388 ; L.E. 5 Ch. 358, Company C 35 . 439 139 139 139 307 620 . 648 49 454 557 273 142 217 . 614 168 172 . 266 198 616 633 35 639 11 11 144 113 704 TABLE OF CASES. 119 143 128 160 439 125 . 629 . 405 Oriental Commercial Bank, in re Alabaster's case, 38 L.J. Ch. 32; L.E. 7 Eq. 273, Company C 86 . Company E 165 .... — ^ in re, Barge's case, L.E. 5 Eq. 420, Com- pany^ 63 . in re, Maxondoft's case, 37 L.J. Ch. 471 ; L.E. 6 Eq. 582, Company G 1 Oriental Hotel Co. v. Pelly, 38 L.J. Ex. 39, Practice at Law 7 . Ormrod's case, in re Littlehampton, Havre and Honfleur Steam Packet Co., 37 L.J. Ch. Ill ; L.E. 5 Eq. 110, Company E 26 Orell V. Buach, L.E. 5 Ch. 467, Pr. in Eq. N 2 451 Orton's Trusts, in re, 36 L.J. Ch. 2/9 ; L.E. 3 Eq. 378, Willr; Constr. M 10 Osborn v. Osborn, 37 L.J. Ch. 656 ; L.E. 6 Eq. 338, Partition 5 ' Osgood V. Nelson, 10 B. & S. 119, Lmidon 1 . Orloff V. Briscall, The HdUne, 35 L.J. P.C. 63 ; L.E. 1 P.C. 231, Shipping A 2. Osenton, ex parte, in re Prior, L.E. 4 Ch. 690, Composition Deed, 103 Osprey, The — The Amazon, 36 L.J.Adm. 4, Admiralty D 3 Other T. Surthwaite, L.E. S Eq. 437, Practice in Eguity V 6 . Ottoman Company, in re Hornby's case, 37 L.J. Ch. 929, Company P 8. Otway-Cave v. Ofway, L.E. 2 Eq.* 725, Marriage Sett. 27 . Overend, Gurney & Co., v. GKurney, 39 L.J. Ch. 45 ; L.E. 4 Ch. 701, Company C 22 111 • . V. Mid- Wales Rail. Co., 35 L.J. C.P. 205 ; H. & E. 508 ; L.E. 1 C.P. 499, Rail- way B 13 . ex parte, and ex parte London, Ham- burgh and Continental Exchange Bank, in re Cork and Youghal Eail. Co. 39 L.J. Ch. 277, Railway 32 . in re, Barrow's case, 38 L.J. Ch. 16; L.E. 3 Ch. 784, Company E 177 . in re, Grissell's case, 35 L.J. Ch. 752 ; L.E. 1 Ch. 528, Company E 46 . in re, Lintott's case, 36 L.J. Ch. 610 ; L.E. 4 Eq. 184, Company's 176 '. in re, Oakes and Peek's case (No. 1), 36 L.J. Ch. 233, and Oakes and Peek's case (No. 2), 36 L.J. Ch. 413 ; L.E. 3 Eq. 576 ; (on App.) to H.L. sub nom. Oakes v. Tur- quand and Peek v. Turquand, 36 L.J. Ch. 749 ; L.E. 2 E. & I. App. 325. Company E 127 . ex parte, in re Land Credit Co. of Ireland, 39 L.J. Ch. 27 ; L.E. 4 Ch. 460, Company G 40 . in >e, Musgrave and Hart's case, 37 L.J. Ch. 161 ; L.E. 5 Eq. 193, Company E 192 . • in re, Swann's case, L.E. 6 Eq. 344, Bill of Exchange 23 . in re, Ward and Garfitt's case, 36 L.J. Ch. 416 ; L.E. 4 Eq. 189, Company E 80 . in re Walker's case, 36 L.J. Ch. 826 ; L.E. 2 Eq. 564, Company E 88 . Overman v. Overman, 35 B. 477, Practice in >\ Equity, 112 . . . ,458 541 182 14 453 149 359 602 505 146 127 146 139 165 148 66 131 132 Owen V. London and North- Western Eail. Co., 37 L.J. Q.B. 35 ; 7 B. & S. 768 ; L.E. 3 Q.B. 54, Lands Clauses Act 80 . . 320 — ■— V. Jones, Owens v. Woosman, 37 L.J. a.B. 159; 9 B. & S. 243; L.E. 3 Q.B. 469, County Court 20 . in re, L.E. 4 Ch. 782, Limacy 6 Owens V. Woosman, and Owen v. Jones, 37 L.J. a.B. 169; 9 B. & S. 243; L.E. 3 a.B. 469, County CouH 20. . ' . Oxford V. Provand, L.E. 2 P.C. 138, Juris- diction, in Equity \l . . .300 Oxford and Canterbury Hall Co., in re, ex parte London and County Bank, 38 L.J. Ch. 614 ; L.E. 8 Eq. 691 ; (on App.) 39 L.J. Ch. 775 ; L.E. 5 Ch. 443, Company G 6 .160 ex parte Morton, 38 L.J. Ch. 390, Com-' pany E 183. . . . .147 209 342 209 P. Y. S. and others, 37 L.J. P. & M. 80, Divorce,'! ..... 226 Packer, Hannah, in re, 39 L.J. C.P. 238; L.E. 5 C.P. 424, Baron and Feme 25 . 69 Packer's Settled Estates, in re, 39 L.J. Ch. 220, Settled Estates 9 . . .536 Paddon v. Winch, 39 L.J. Ch. 627 ; L.E. 9 Eq. 666, Production 30 . . . 490 Padwick, ex parte, in re Duke of Newcastle, 39 L.J. Ch. 68 ; L.E. 8 Eq. 700, Judgment 11 297 Pagani v. Pagaui and Vining, 38 L.J. P. & M. 87 ; L.E. 1 P. & D. 223, Divorce 145 . 240 Page V. Cowasjee Eduljee, L.E, 1 P.C. 127, Shipping E 9 • . . . 652 - v. Defries, 7 B. & S. 137, Master and Servant 8 . . . . . 361 Paget V. Grenfell, 37 L.J. Ch. 833 ; L.E. 6 Eq. 7, Marriage ■'Settlement 29 . 359 Paglar and wife v.Tongue, L.E. 1 P. & D. 158, Probate B 1.6 (Will of Feme Covert) . 476 Pahlen's, Count, case, and Kelk's case, in re Cobre Copper Mining Co., 39 L.J. Ch. 231 ; L.E. 9 Eq. 107, Company E 114 . 136 Paice v. Walker, 39 L.J. Ex. 109 ; L.E. 5 Ex. 173, Principal and Agent 13 . . 466 Paiii, ex parte, in re Pain, 38 L.J. Oh. 305 ; L.E. 3 Ch. 639, Bankruptcy 80, Insolvent committed after disiharge on bankruptcy . 63 Paine v. Hutchinson, 36 L.J. Ch. 160 ; L.E. 3 Eq. 257; (on App.) 37 L.J. Ch. 485; L.E. 3 Ch. 388, Stock Exchange . . 673 Paine, in re, 8 B. & S. 319, Justice of Peace 12. 303 Paine and Layton, ex parte, in re South Essex Estuary Eeclamation Co., 38 L.J. Ch. 305 ; L.E. 4 Ch. 216, Company's 66 . , 165 Paley v. Birch, 8 B. & S. 356, Fishery 4 . 263 Palmer v. London and South-Western Eaill Co., 35 L.J. C.P. 289 ; H. & E. 767 ; L.E. 1 C.P. 588, Carrier 29 . . .80 V. AValesby, 37 L.J. Ch. 612 ; L.E. 3 Ch. 732, Practice in Eq. E 12 . . 448 ex piirte, in re-Palmer, 39 L.J. Bankr. 48; L.E. 6 Ch. 470, County Court 31 . 210 Palmer's 'Shipbuilding and Iron Co. v. Chay- tor, 38 L.J. M.C. 63; 10 B. & S. 177; L.E. 4 Q.B. 209, Factory 3 . .260 TABLE OF CASES. 705 5U 163 338 449 210 271 88 586 200 480 Panama, The, Barron t. Stewart, 38 L.J. Adm. 67 ; L.E. 2 A. & E. 390 ; (in P.O.) 39 L.J. Adm. 37 ; L.B. 3 P.O. 199, Shi^- ping, B 2, B 3 . Panama, New Zealand and Australian Boyal Mail Co., in re 39 L.J. Ch. 162; (on App.) ibid. 482; L.E. 6 Ch. 318, Com- pany Gr 38 . Pardo T. Bingham, L.E. 6 Eq. 485 ; (on App.) 39 L.J. Ch. 170 ; L.E. 4 Ch. 735, Limita- tions, Stat, of \2 , Practice in Equity E 19. Parfit V. Hember, L.E. 4 Eq. 443, WUl 131 624 Paik Gate Iron Co. v. Coates, 39 L.J. C.P. 317 ; L.E. 5 C.P. 634, County Court 33 . Parker v. Butcher, 36 L.J. Ch. 552 ; L.E. 3 Eq. 762, Friendly Society 4 ^— V. Leach, 36 L.J. P.O. 26 ; L.E. 1 P.O., Church 14 {Faculty) T. Stone, 38 L.J. Ch. 46, Trust A 4 V. Tootal, 35 L.J. Ex. 53 ; 3 H. & C. 913 ; L.E. 1 Ex. 41, Costs at Law 18 , Samuel, in the goods of, 36 L.J. P. & M. 26 ; L.E. 1 P. & D. 301, Probate E 1 . Parker's case, in re National Provincial Marine Insurance Co., L.E. 2 Ch. 685, Company E 73 130 Parkes v. Prescott, 38 L.J. Ex. 105 ; L.E. 4 Ex. 169, Libel 2 . . . .334 — T. Stephens, 38 L.J. Ch. 627 ; L.E. 8 Eq. 358 ; (on App.) L.E. 5 Ch. 36, Patent 13 412 Parkinson V. Hanbury, 36 L.J. Ch. 292; L.E. 2 E. & I. App. 1, Mortgage 37 . 375 V. Parkinson, 39 L.J. P. & M. 14 ; L.E. 2 F. & B. 253, Saron and Feme 40 . 61 V. , , 37 L.J. P. & M. 21 ; L.E. 2 P. & D. 27, Divorce 57 . . . 233 V. Thornton,37L.J.P.&M.3,Pro6a!!eK23 485 Parry, in re, ex parte Duke of Beaufort, 36 L.J. Ch. 661 ; L.E.,2 Eq. 95, Escheat . 248 Parsons v. Cart, and Hawkins v. Carr, 35 L.J. Q.B. 81 ; L.E. 1 Q.B. 89, Pr. at Law 13, 9 . 439 Practiced Law 61 . . . 444 T. Lloyd, see O'Brien v. Brodie, 35 L.J. Ex. 190 n. ; L.E. 1 Ex. 302 »., Banky. 53 T. Parsons, L.B. 8 Eq. 260, WiU H 22 . V. St. Matthew, Bethial Green, 37 L.J. C.P. 62 ; L.E. 3 C.P. 56, Met. Loc. Man. 5 Parson's and Spong's case, in re European Central Eail. Co., 39 L.J. Ch. 64; L.E. 8 Eq. 656, Company E 68 . Part's case, in re Bank of Loudon Assurance Association, L.E. 10 Eq. 622, Company 79, Partington v. Attorney General, 38 L.J. Ex. 205 ; L.E. 4 E. & I. App. 100, Probate N 3 487 Parton and Page T. Johnson, Johnson and Bills intervening, 37 L.J. P. & M. 67; L.E. 1 P. & D. did, Probate K 12 . Partridge v. Poster (No. 2), 35 B. 545, WiU, Construction N 2 . Paseall, in the goods, of, 38 L.J. P. & M. 3 ; L E. 1 P. & D. 606, Will, Formalities 20 . Patch V. Patch, 38 L.J. P. & M. ^7, Divorce 80 235 V.Ward, L.E. 1 Eq. 436, Production 21 490 V L.E. 3 Ch. 203, Costs in Eq. 1 203 49 620 364 129 118 484 632 638 162 146 694 234 531 16 231 142 404 130 646 Practice in. Eq.BB li Digest, 1865-70. 456 Patent Carriage Company, in re. Gore and Du- rant's case, L.E. 2 Eq. 349, Company E 32 125 Patent Floor Cloth Co., in re, L.E. 8 Eq. 664, Company F 36 ■ . Patent Paper Manufacturing Co., in re, Addi- ■ son's ease, 39 L.J. Cli. 568; L.E. 5 Ch. 294, Company E 172 Paterson v. Paterson, 35 L.J. Ch. 618 ; 35 B. 506; L.E. 2Eq. 31, IVMsiF 11 . Patrickson v. Patrickson, 35 L.J. P. & M. 48 ; L.E. 1 P. & D. 86, Divorce 66 . Pattison V. Henderson, L.E. 1 Sc. App. 392, Scotch Law 2, 1 1 . . , Paul, The, 35 L.J. Adm. 16 ; L.B. 1 A, & E. 67, Admiralty D 11 . Paul V. Paul and Farquhar, 38 L.J. P. & M. 57 ; L.B. 2 P. & D. 93, Divorce 44 Pawle, ex parte, in re Estate's Investment Co., 38 L.J. Ch. 318 ; (on App.) ibid. 412 ; L.E. 4 Ch. 497, Company E 153 . Payne v. Parker, L.E. 1 Ch. 327, Parties 10 . Payne's case, in re Imperial Mercantile Credit Association, L.B. 9 Eq. 223, Company^ 75 {Payment of Freight) Paynterv. James, L.E. 2 C.P. 348, Ship. D 10 . Peachev. Colman, 36 L.J. M.O. 118; L.B. 1 C.P. 324, Alehouse 9 . . . Peacock v. Eastland, 39 L.J. Ch. 534 ; L.B. 10 Eq. 17, Disentailing Deed, 1 and Peake v. Lowe, 36 L.J. P. & M. 91, Probate A 4 (Discovery) ■ V , 36 L.J. P. &M. 46 ; L.B. 1 P. & D. 311, Probate K 6 {Solemn Forms) V. Saggers, 4 De G. F. & J. 406, Practice in Equity D D 1 . PeEike, ex parte, in re Brodie, L.B. 2 Ch. 453, Bankruptcy 49 . Pearce v. Brookes, 35 L.J. Ex. 134; 4 H. & 0. 358 ; L.E. 1 Ex. 213, Contract 4 V. Morris, 38 L.J. Ch. 666; L.B. 8 Eq. 217 ; (L.C. on App.) 39 L.J. Oh. 342; L.B. 5 Ch.227, Mortgage 11 . Pearch v. Justices of Kent, 36 L.J. M.O. 190, Friendly Society 11 Pearse v. Coaker, 38 L.J. Ex. 82 ; L.E. 4 Ex. 92, Evidence 11. Trespass 1 . . . ' . V. Dobinson, 35 L.J. Ch. 110 ; L.B. 1 Eq. 241 ; (on App.) 37 L.J. Ch. 1 ; L.E. 3 Ch. 1, Pleading in Eq. 10 . Sarah, in the goods of, 36 L.J. P. & M. 117; L.E. 1 P. & D. 382, WiU, Form. 40 . Pearse's Claim, in re British and American Steam Navigation Co., L.B. 8 Eq. 606, BUI of Exchange 7 ■ ■ ■ • Pearson v. Commigsioners of Inland Eevenue, 37 L.J. Ex. 171 ; L.E. 3 Ex. 242, Stamp 7 V. Dolman, 36 L.J. Oh. 268 ; L.B. 3 Eq. 316, Legacy 16 . V. Glazebrook, 37 L.J. Ex. 16; L.E. 3 Ex. 27, Coimty Court 8 . V. Kingston-upon-HuU Board of Health, Zb'L.^.'ilL.C.iQ,Ptiblic Health Acft V. Pearson, 36 L.J. Ex. 172 ; 4 H. & 0. 317; L.E. 1 Ex. 308, Comp. Deeddi 4X 17 223 474 483 457 48 189 371 273 261 584 425 640 63 568 . 327 208 493 . 181 706 TABLE OF OASES. PiSB Pearson, ex parte, in re Wiltshire Iron Co., 37 L.J. Ch. 654 ; L.E. 3 Cli. 443, Company F 44 . Pease v. Coates, 36 L.J. Ch. 57 ; L.R. 2 Eq. 688, Covenant 8 {Sale of Beer) V. G-loahec, The Mary Joseph, 35 L.J. P.O. 66 ; L.R. 1 P.O. 219, Stoppage in Tran- situ 6 .... . V. Jackson, 37 L.J. Ch. 725; L.E. 3 Ch. 676, Friendly Soc. 5 . ■ V. Norwood, Hull Election Petition, 38 L.J. C.P. 161 ; L.K. 4 C.P. 235, Parlt. 16 . Peatfleld v. Barlow, 38 L.J. Oh. 310; L.B. 8 Eq. 6, Attorney 51 . ... Peat's Trusts, in re, L.E. 7 Eq. 302, Colonial Law 20 . Pechell v. Hilderley, 38 L.J. P. & M. 66 ; L.E. 1 P. & D. 673, mil, Form. 37 Pedder's Settlement Trusts, in re, L.R. 10 Eq. 585, Marriage Settlement 23 Pedley v. Dodds, Dodds v. Pedley, L.E. 2 Eq. 819, Will, Constr. E 17 . Peek V. Mathews, L.E. 3 Eq. 616, Injunction 29 {Restrictive Covenant) . T. Earl Spencer, 39 L.J. Ch. 227; (L.JJ. on App.)ibid. 538; L.R. 5 Ch.648, Practice in Equity 8 Peek's ease, in re Aberaman Iron Works, L.E, 4 Oh. 632, Company E 23 . , in re Overend, Gurney & Co., 36 L.J. Ch. 233 ; (H.L. on App.) Peek v. Turquand, ibid. 949 ; L.E. 2 E. & I. App. 325, Com- pany's, 127 ..... Peel, in the goods of, 39 L.J. P. & M. 36 ; L.R. 2 P. & D. 46, Executor 2 v. Webster, 36 L.J. Ex. 188, Composition Deed 16 . Peel's case, in re Barned's Banking Co., 36 L.J. Ch. 757 ; L.E. 2 Ch. 674, Company B Company E 147 {Prospectus) Sir R., School at Tamworth, in re, ex parte Charity Commissioners, 37 L.J. Oh. . 473 ; L.E. 3 Oh. 543, Chanty 3 . Pegler v. G-arney, Southampton Election Peti- tion, 39 L.J. C.P. 89; L.E. 6 C.P. 172, Parliament 14 . Peirce v. Jersey Waterworks Co., 39 L.J. Ex. 156 ; L.E. 6 Ex. 209, Company 6 Pell V. Linnel, 37 L.J. C.P. 191 ; L.E. 3 C.P. 441, Costs at Law 19 . . . V. Northampton and Banbury Junction Rail. Co., 36 L.J. Oh. 319>; L.R. 2 Ch>100, Bailway 29 . Pell's case, in re Heyford Co., 38 L.J. Ch. 564; L.E. 8 Eq. 222; (on App.) 39 L.J. Ch. 120; L.E. 5 Ch. 11, Comp. E 7 Company E 37 . Pellatt's case, in re Eichmond Hill Hotel Co., 36 L.J. Ch. 613 ; L.R. 2 Ch. 527, Company E 47 {Set-off) . . Pembroke Election Petition, Hughes v. Mey- ' rick, 39 L.J. C.P. 249, Parliament 15 . 396 Penfold V. Mould, 36 L.J. Ch. 981 ; L.R. 4 Eq. 562, Baron ^ Feme 33 . .60 Practice in Egfiiity D D 6 . . 457 153 212 677 272 37 . 101 640 368 615 288 . 446 124 139 266 169 107 142 396 . 108 200 504 122 126 127 Penhale and Lomax, &c. Mining Co., in re, ex parte Atter, 36 L.J. Ch. 516; L.R. 2 Ch. 398, Company F 37 . - ■ Peninsular, &c. Banking Co., in re, 35 B. 280, Company F 98 . Peninsular, West Indian and Southern Bank, in re, Austin's case, L.R. 2 Eq. 435, Com- pany E 167 Penn v. Bibby, L.R. 1 Eq. 548, Patent 58 _ . V. , Penn t. Jack, Penn v. Feamie, 36 L.J. Ch. 277 ; L.R. 3 Eq. 308 ; (L.C. on motion for N.T.) 36 L.J. Ch. 455 ; L.R. 2Gh. 127, Patent i {Novelty) Patent 9 {Specification) . Patent 61, 52, 63 {New Trial) . Practice in Equity Y 3 {Issues) . V. Bibby, Penn v. Jack, 37 L.J. Ch. 136 ; L.R. 6 Eq. 81, Patent 29 {Damages) V. Jack, L.R. 2 Eq. 316, Patent 46 {Issues) 416 Penny v. Penny, 37 L.J. Ch. 340; L.R. 5 Ex. 227, Lands Clauses Act 26 . Penrhyn Election Petition, Tamworth, do., and Southampton, do., 39 L.J. C.P. 89; L.R. 6 C.P. 172, Parliament 14 Pentilow's case, in re Warren's Blacking Co., 39 L.J. Ch. 8; L.R. 4 Ch. 178, Comp. E. 24 124 Penton's Trust Deed, in re, ex parte Townseud, 35 L.J. Bankr. 17; L.R. 1 Ch. 168, Com- position Deed 97 . Peppercorn, ex parte, 35 L.J. C.P. 239 ; 7 B. & S. 761 ; H. & R. 487 ; L.R. 1 C.P. 473, Attorney 2 . Peplow T. Richardson, L.E. 4 C.P. 168, Ale- house 8 {Traveller) ..... Perceval v. Perceval, L.E. 9 Eq. 386, Will 152 159 144 417 410 411 417 464 415 312 396 . 181 32 17 F9 , 616 158 19 400 487 . 261 , ex parte, in re Marlborough Club Co., L.E. 6 Eq. 519, Company F 91 . Percy v. Percy, 35 B. 295, Annuity 8 Perowu V. Peters, 38 L.J. C.P. 266; L.E. 4 C.P. 539, Parliament 48 . Perry, Exe-cutors, v. The Queen, 38 IxJ. Ex. 5 ; L.R. 4 Ex. 27, Probate N 2 . Ferryman v. Lister, 3? L.J. Ex. 166; L.R. 3 Ex. 197, False Imprisoriment 2 Peruvian Railways Co. v. Thames and Mersey Marine Insurance Co., 36 L.J. Ch. 864; L.E. 2 Ch. 617, Company 34 . . 113 , in re, Crawley's case, Eobinson's case, L.E. 4 Ch. 322, Company E 21 . .124 , in re, Wallis's case, L.E. 4 Ch. 325 »., Company E 21 . . . . 124 Peters v. Bacon, 38 L.J. Ch. 671 ; L.E. 8 Eq. 125, Partition 11 . . . .406 Peterson v. Peterson, 36 L.J. Oh. 101 ; L.R. Zl^.Wl, Administration 27 . . 8 Perie, ex parte, in re Petrie, 37 L.J. Bkoy. 13 ; L.R. 3 Ch. 610, Composition Deed 5 . 168 , in re, 37 L.J. Bkcy. 20 ; L.R. 3 Ch. 232, Bankruptcy 81 . . . .53 Pettinger v. Ambler, and Brinn v. Pettinger, 36 L.J. Ch. 389 ; 36 B. 321 ; L.R. 1 Eq. 510, Power 16 . . . .433 Petty V. Great Western Rail. Co., L.E. 5 C.P. 461 »., Negligence 35 . . ._ 387 TABLE OF CASES. 707 37 594 316 600 567 101 615 . 105 PAGE Petty T. Willson, L.E. i Ch. 574, Leaacff 11 327 Peyton's Settlement Trusts, in re, 38 L.J. Ch. 477 ; L.E. 7 Eq. 463, Trust G 3 . .589 Pfleger, in re, L.E. 6 Eq. 4i!6, L. CI. Act 49 . 316 Phantom, The, L.E. 1 A. & E. 68, Shipp. T 7 658 Phene's Trusts, in re, L.R. 6 Eq. 346; (on App.) 39 L.J. Ch. 316; L.E, 5 Ch. 139, Presumption 5 . . . . 464 Thist A 8 . . . .587 Philip'sWiU, inre, L.E. 7Eq. 151, WillB. 21 620 Philippine, The, LJl. 1 A. & E. 309, Attor- ney 49 .... . Phillips, in re, L.E. 4 Ch. 629, Trust E 16 Phillips's Trusts, in re, L.E. 6 Eq. 250, Lands Clatises Act 50 . T. Caldcleugh, 38 L.J. Q.B. 68 ; 9 B. & S. 967 ; L.E. 4 a.B. 169, V. # P. 14 — — y. Commissioners of Inland Eevenne, 36 L.J. Ex. 199 ; L.E. 2 Ex. 399, Stamp 3 V. Eyre, 38 L.J. Q.B. 113; 9 B. & S. 343 ; L.E. 4 Q.B. 225 ; (Ex. Ch.) 40 L.J. Q.B. 8; lOB. &S. 1004; L.E. 6 Q.B. 1, Colonial Law 21 , — ^ T. Furber, L.E. 5 Ch. 746, Banhrwptcy Jurisdiction, Addenda 12 . V. Hudson, 36 L.J. Ch. 301 ; L.E. 2 Ch 243, Common 2 . V. Im Thurn, 35 L.J. C.P. 220 ; H. & E. 469 ; L.E. 1 C.P. 463, Bill of Ex. & . V. PhiUips, 35 L.J. P, & M. 70; L.E. 1 P. & D. 169, Divorce 23 . V. Poland, 35 L.J. C.P. 128 ; H. & E. 236 ; L.E. 1 C.P. 204, Bankruptcy 74 Picard V. Hine, L.E. 6 Ch. 274, Pr. in Eq. E 15 448 Pickering v. Capetown Eail. Co., L.E. 1 Eq. 84, Injunction 36 . V. , L.E. 7 Eq. 224, Pr. in Eq.T 5 . V. Ilfracombe Eail. Co., 37 L.J. C.P. 118 ; L.E. 3 C.P. 235, Railway 12 . . ex parte, in re Pickering, 38 L.J. Bankr. I ; L.E. 4 Ch. 58, Composition Deed 47 Pieroy V. Maclean, 39 L.J. C.P. 114; L.E. 5 C.P. 262, Parliament 40 . . . 399 Pickett V. Packham, L.E. 4 Ch. 190, Tenure . 680 Pierce T. Worth, 39 L.J. Ex. 156 ; L.E. Ex. 209 (sub nom. Pierce v. Jersey Waterworks ' Co.) Company 6 . . . . i08 Piffar V. Beeby, 35 L.J. Ch. 268 ; L.E. 1 Eq. 623, Production 6 . Pigott V. Pigott, 37 L.J. Ch. 116 ; L.E. 4 Eq, 649, Land Tax 3 . Pike v. Nicholas, 38 L.J. Ch. 529 ; (on App.) 39 L. J. Chi 436 ; L.E. 6 Ch. 251, Copyright 1 1 Pike, ex parte, and ex parte Thompson, in re Manchester and London Life Assurance and Loan Association, 39 L.J. Ch. 595 ; L.E. 9 Eq. 643 ; (on App.) L.E. 6 Ch. 640, Com- pany C 91 . Pilgrim v. Auction Mart Co., Mercers' Co. v, same and Dent v. same, 38 L.J. Ch. 655 L.B. 2 Eq. 238, Jnjumction 14 Pilkington, ex parte, in re Webster, L.E. 3 Ch 404, Composition Deed 92 . Pillar V. Llanvi Coal, &c. Co., 38 L.J. C.P. 294 L.E. 4 C.P. 752, Truck Act 2 63 228 62 289 452 502 175 488 321 196 120 286 181 685 Pilling, in re, ex parte Delaunay, L.E. 3 Ch. 2Q8, Compositio7i Deed 100 . . .183 Pine, A.A., in the goods of, 36 L.J. P. & M. 96; L.E. 1 P. & D. 388, Probate B 19 . 476 Pitt V. Pitt, 37 L.J. P. & M. 24 ; L.E. 1 P. & D. 464, Divorce 50 . . . 232 Pittman, in re, Dodd v. Holbrook, 35 L.J. Ch. 175, Attorney 8 . . . .32 Plas-yn-Mhowys Coal Co., in re, L.E. 4 Eq. 689, Company F 103 . . . 159 Piatt V. Walter, 36 L.J. Ch. 728 ; L.E. 1 Ch. 471, Pr. inEg.VV 1 . . . 462 Playford v. United Kingdom Telegraph Co., 38 L.J. Q.B. 249; 10 B. & S. 759; L.E. 4 Q.B. 706, Action 6 . . - . 3 Pollard's Estate, in re, 3 De G. J. & S. 841, Will, Construction 18 . . .621 , in re, L.E. 2 P.O. 106, Pr. in Eq. 6 .451 Poland, in re, 36 L.J. Bankr. 19; L.E. 1 Ch. 366, Arrest 4 . . . .28 Polden V. Bastard, 35 L.J. Q.B. 92 ; 7 B. & S. 130; L.E. 1 Q.B. 156, Easement 3 , 244 Poltimore, Lord, in re, Ilfracombe Eail. Co. y. Devon and Somerset Co., L.E. 2 C.P. 15, Company, Addenda 18 . . . 646 Pousford V. Walton, 37 L.,r. C.P. 113; L.E. 5 C.F. 167, Composition Deed 89 . .180 Pontifex's case, in re, New Quebrada Co., 36 ' L.J. Ch. 903, Company E 98 . . 133 Poole, an Attorney, ex parte, 38 L,J. C.P. 216 ; L.E. 4 C.P. 350, Attorney 6 . .32 V. Canning, 36 L.J. C.P. 166 ; L.E. 2 C.P. 241, Arrest 12 . . .29 . V. Wilats, 38 L.J. Q.B. 265 ; 9 B. & S. ,957 ; L.E. 4 Q.B. 630, Comp. Deed 71 . 178 Poole's Patent, in re, 36 L.J. P.C. 76 ; L.E. 1 P.C. 514, Patent 8 . . .411 Patent 38 . . . .415 Pool, in the gifods of, 35 L.J. P. & M. 97 ; L.E. 1 P. & D. 206, Will, Eormaliiies 3 . 636 Pooley, in re, ex parte Eussell, L.E. 5 Ch. 722, Bankr.36 {Liquidation by Arrangement) 46 Poor Law, Ireland, Commissioners of, v. Vestry of Liverpool, 39 L.J. M.C. 25; 10 B. & S. 921 ; L,E. 5 Q.B. 79, Poor 14 . . 430 Pope V. Great Eastern Eail. Co., 36 L.J. Ch. 60; L.E. 3 Eq. 171, Sp. Perf. 26 . 566 Popplewell V. Hodgkinson, 38 L.J. Ex. 126 ; L.E. 4 Ex. 248, Action 8 . . .4 Portalis v. Tetley, 37 L.J. Ch. 139 ; L.E. 6 Eq. 140, Factors 2 . . . .259 Porter, in the goods of, 39 L.J. P. & M. 19 ; L.E. 2 P. & D. 22, Will, Constr. G 3 .612 V. Kirkhus, 36 L.J. C.P. 311 ; L.B. 2 CS. 590, Comp. Deed ^i . . .181 Portland, Duke of, v. Hill, 36 L.J. Ch. 439 ; ■ L.E. 2 Eq., 765, Copyhold 1 . .192 Portsmouth Banking Co., in re, Helby's, Stoke's and Horsey's cases, L.E. 2 Eq. 167, Comr- parly's 118. . . . . 137 Portugil V. Poitugal, 36 L.J. P. & M. 103, Divorce 97 (Alimony) , . . 236 Potter V. Eankin, 37 L.J. C.P. 257 ; L.E. 3 C.P. 562; (Ex. Ch.) 39 L.,L C.P. 147; L.E. 6 C.P. 341, Marine Ins. 20 . . 349 4x2 708 TABLE OF CASES. 441 202 60 628 510 244 19 497 614 Potter V. Eankin, 38 L.J. C.P. 130 ; L.E. 4 C.P. 76, Practwe at Law 31 V. , 39 L.J. a.B. 147, L.E. 5 C.P. 518, Costs at Law 33 - . Potter, in re, L.E. 7 Eq. 484, Baron ^F. 34. Potter's Trusts, in re, 39 L.J. Ch. 102; L.E. 8 Eq. 52, WiU, Constr. Ml Potteries, Shrewsbury and North Wales Eail. Co., in re, 39 L.J. Ch. 77 ; (on App.) ibid. 273 ; L.E. 6 Ch. 76, Bailway 62 . Potts V. Smith, 38 L.J. Ch. 68 j L.E. 6 Eq. 311, Easement 6 . y (No. 2), 39 L.J. Ch. 131 ; L.E. 8 Eq. 683, Annmty 7 ■ ■ ■ , in re, ex parte Hindmarsh, 37 L.J. Q.B. 58 ; 8 B. & S. 642; L.E. 3 Q.B. 12, Quo Warranto 1. Poulett, Eail, v. Hood, 35 L.J. Ch. 253 ; 35 B. 234 ; L.E. 5 Eq. 115, Will E 1 2. V. (No. 2), 37 L.J. Ch. 224, Cov. 20 213 Poulsum V. Thirst, 36 L.J. C.P. 225 ; L.E. 2 C.P. 449,^oi;tt)» 10. . . .4 Poulton r. London and South- Western Eail. Co., 36 L.J. Q.B. 294 ; 8 B. & 8. 616 ; L.K 2 Q,.B. 53i, Bailwai/ 70 . .511 Pound T. Wilson, 4 P. &F.301, Pr. otLawiS 441 Powell V. Boggis, 35 L.J. Ch. 472 ; 35 B. 535, Wai, Constr. 1. — — V. Howell, 37 L.J. Q.B. 294 ; 9 B. & S. 704 ; L.E. 3 Q.B. 654, Will, Constr. L 14 . ■ V. , 35 L.J. P. & M. 5 ; L.E. 1 P. & D. 6, Probate I . V. , 35 L.J. P. & M. 100 ; L.E. 1 P. & D. 209, Will, Formalities 51 . -- — V. Eoberts, 39 L.J. Ch. 44 ; L.E. 9 Eq. 169, Coimti/ Court 11 . PoweU's Trusts, in re, 39 L.J. Ch. 188; Power 26 . . . . . ^uu Power, in re, L.E. 1 Ch. 163, Comp. Deed 55 . 176 V. Hayne, L.E. 8 Eq. 262, Annuity 2 . 18 Poyser v. Harrison, and Alton v. Harrison, 38 L.J. Ch. 669 ; L.E. 4 Ch. 622, Deed 2 . 221 Pratt V. Jenner, ex parte Jenner, 35 L.J. Ch. 682 ; L.E. 1 Ch. 493, Divorce 107 . . 237 Prager v. Bristol and Exeter Bail. Co., L.E. 5 C.P. 460 n. (1), Negligence 85 Prance, in re, in re Gregg, 39 L.J. Ch. 107 ; L.E. 9 Eq. 137, Attorney 13 ex parte, in re Kemp, L.E. 5 Ch. 16, Bankfwptcy 100 . Prange, ex parte, in re Leeds Banking Co., 35 L.J. Ch. 33 ; 35 B. 34 ; L.E. 1 Eq. 1, Bill of Exchange 15 . Prehn t. Eoyal Bank of Jjiverpool, 39 L.J. Ex. 41 ; L.E. 6 Ex. 92, Damages 2. Press and Inskip, in re, 35 B. 34, Attorney 36 Prendeville v. National Steam Navigation Co., The England, 38 L.J. Adm. 9; L.E. 2" P.C. 253, Admiralty C 3 . Prescott v. Wood, 37 L.J; Ch. 691, Lands Glauses Act 62 . Preston v. Buckley, 39 L.J. M.C. 105 j L.E. 6 Q.B. 391, Alehouse 5 . . . , ex parte, in re General Exchange Bank, 37 L.J, Ch. 618, CoTOpa«y A.5 632 626 . 483 642 208 435, 387 33 55 216 36 12 317 17 107 Price, in re, ex paite Bank of England, 36 L.J. Bankr. 24 ; L.E. 2 Ch. 662, Com/position Deed 93 . . . • . • , in re, and in re Financial Corporation China Steamship and Labuan Coal Co. Gar- nishaes, L.E. 4 C.P. 165, Attachment 3 V. Denbigh, -Euthin and Corwen Eail. Co., 38 L.J. Ch. 461, BaOway 30 . V. Hall, 36 L.J. Ch. 191 ; L.E. 5 Eq. 399, Will, Constr. L 8 T. Hutchinson, L.E. 9 Eq. 534, Practice . 181 30 605 626 451 9 452 593 66 60 52 116 176 472 12 10 '04 BSckards, 39 L.J. Ch. Ill; L.E. Eq. 35, Practice in Equity T 6 Price's Trust Deed, in r^, L.E. 6 Eq. 460, Trust's 3 ..... Prideaux v. Criddle, 38 L.J. Q.B. 232; 10 B. & S. 615 ; L.E. 4 Q.B. 456, BiU of Ex- change 22 . Priestley t. Pratt, 36 L.J. Ex. 89 ; L.B. 2 Ex. 101, Bankruftcy 89 . Prince, in re, ex parte Graves, L.E. 3 Ch. 642, Bankruptcy 77 . Prince v. Prince, 36 L.J. Ch. 290 ; 36 B. 386 ; L.E. 1 Eq. 490, Company C 59 Pritchard v. "Rmothy, 35 L.J. Ex. 166 ; 4 H. & C. 393, CoTOD. Deed 61 . . Princess Alice, The, and The Alice, Eeid t. Aberdeen, &c.. Steam Co., 38 L.J. Adm. 5 ; L.E. 2 P.O. 245, Priv. Go. 16 . Princess Eoyal, The, 39 L.J. Adm. 29 ; L.B, 3 A. & E. 27, Admiralty C 6 , The, 39 L.J. Adm. 43; L.E. 3 A. & E. M, Admiralty K\^ . Prioleau v. XJnited States of America and Andrew Johnson, and United States of America V. Prioleau, 36 L.J. Ch. 36; L.E. 2 Eq. 659, Parties 3 Prior, in re, ex parte Osenton, L.E. 4 Ch. 690, Composition Deed 103 . PrisciUa, The, L.E. 3 A. & E. 125, Shipp. E 3 547 Pritchard v. Pritchard and. Bean, 39 L.J. P. & M. 46 ; L.E. 2 P. & D. 53, Divorce 137 Probart, Ellen, in the goods of, 36 L.J. P. & M. 71, Probate B 20 Proctor V. Eobinson, 36 B. 329, Deed 1 . Procureur and Advocate General for Mauritius V. Virginie Bruneau, 36 L.J. P.C. 66, Col. Law 11 . . Professional Life Insurance Co., in re, 36 L.J. Ch. 442 ; L.E. 3 Eq. 688 ; (on App.) 3 Ch. 167, CompanyG i9. Progress Assurance Co., in re, ex parte Bates, 39 L.J. Ch. 496, Company G 31 . -, ex parte Liverpool Ejohange Co., 39 L.J. Ch. 504 ; L.E. 9 Eq. 370, Vompany G 21 . Prole V. Soady, 37 L.J. Ch. 246; L.B. 3 Ch. 220, Baron # Feme 3 . . . Prothero, ex parte, in re Barfoot, L.E. 8 Ch, 823, Bankruptcy 107 . Proud V. Bates, 36 L.J. Ch. 341, Costs in ,Eqmty 22 . . . ■ Costs in Fquity 33 i Prondfoot v. Barnes, 36 L.J. C.P. 68 ; L.E 2 C.P. 88, Parliament 64 . . 403 182 240 477 221 99 166 164 162 66 65 204 205 402 TABLE OF CASHS. 709 Proudfoot v.Montefiore, 36LJ.Q.B. 225 ; 8 B. & S. 510 ; L.R. 2 a.B. 511, Mar. Ins. 2 . 345 Prout V. Harris, 36 L.J. C.P. 101 ; H. & E. 328; L.E. 1 C.P. 155, Parliammt 41 . 399 Provincial Bank Corporation, ex parte, in re East of England Banking Co., 38 L.J. Ch. 121 ; L.E. 4 Ch. 14, Company G 12 . 161 Prowae v. Spurgin, 37 L.J. Ch. 251; L.E. 5 Eq. 99, Administration 26 . . .7 Prudential Assurance Co. v. Thomas, 37 L.J. Ch. 202 ; L.E. 3 Ch. 74, Interpleader 3 . 295 Pryse v. Cambrian Eail. Co., and Lewes v. Cambrian Eail. Co., 36 L.J. Ch. 565 ; L.E. 2 Ch. 444, Special Performance 27 . . 666 Pryse's Settled Estates, in re, 39 L.J. Ch. 760; L.E. 10 Eq. 531, Mines 9 . .368 Prytherch, in re, ex parte Edwards, 35 L.J. Bankr. 11, Bankruptcy 44 . . .48 Puddephat, in the goods of, 39 L.J. P. & M. 84; L.E. 2 P. & D. 97, WiU, Form. 32 . 640 Pl^h V. Arton, 38 L.J. Ch. 619 ; L.E. 8 Eq. 626, Fixtwes 2 . . . .264 Pulbrook, ex parte, in re Union Cement and Brick Co., L.E. 4 Ch. 627, Company F 94 . 159 Pullen, ex parte, in re Williams, 39 L.J. Bankr. 1 ; L.E. 10 Eq. 57, Comp. Deed 30 . 172 Quebec Marine Insurance Co. v. Commercial Bank of Canada, L.E. 3 P.C. 234, Mar. Ins. 9 347 Queen of Spain v. Parr„ 39 L.J. Ch. 760, International Law 3 . . . 294 Queen, The, The Hannibal, 37 L.J. Adm. 12; L.E. 2 A. & E. 53, Shipping T 5 .558 , The, The Lord John Eussell, 38 L.J. Adm. 39 ; L.E. 2 A. & E. 354, Shipp. Q 12 . 657 Queensbury Industrial Society v. Pickles, 35 L.J. Ex. 1 ; 3 H. & C. 857 ; L.E. 1 Ex. 1, Friendly Society 7 . ■ • -272 Quinn T. Butler, L.E. 6 Eq. 225, Power 11 .433 260 K 's Trusts, in re,.39 L.J. Ch. 192, Evid. 1 Eailway Finance Co., in re, 35 B. 473, Com- pany F 67 . Eaiatrick, ex parte, in re Nuttal, 37 L.J. Bankr. 12, Comp. Deed 7 . Ealston v. Smith, 35 L.J. C.P. 49, Patent 1 . Patent 14 (Declaimer) . Eamsbotham v. Senior, L.E. 8 Eq. 676, Attorney 9 . Eamsden t. Dyson, L.E. 1 E. & I. App. 129, Acquiescence .... Eamsey v. Skelmerdine, L.E. 1 Eq. 129, Will, Formalities 60 . Eamsgate Victoria Hotel Co. v. &oldsmid. Same V. Montifiore, 35 L.J. Ex. 90 ; 4 H. & 0. 164 ; L.E. 1 Ex. 109, Company E 19 . 124 Eamshire v. Bolton, 38 L.J. Ch. 694 ; L.E. 8 Eq. 294, Jwr. in Equity 4 Eandegger v. Holmes, L.E. 1 C.P. 679, Arbi- tration A 6 . Eandolph v. Milman, 86 L.J. C.P. 28 ; L.E. 2 C.P. 60; (Ex. Ch.) 38 L.J. C.P. 81; L.E. 4 C.P. 107, Church 3 . 165 169 410 412 33 642 299 310 366 368 . 500 593 23 Eangeley r. Midland Eail. Co., 37 L.J. Ch. 313 ; L.E. 3 Ch. 306, ian& C^.^ci 14 Eanking's Settlements Trusts, in re, L.E. 6 Eq. 601, Marr. Settlement 10 . ' . Eansome y. Burgess, 36 L.J. Ch. 84; L.E. 3 Eq. 773, Marr. Settlement 24 Eaphael y. Thames Valley Eail. Co., 35 L.J. 659 ; L.E. 2 Eq. 37 ; (on App.) 36 L.J. Ch. 209 ; L.E. 2 Ch. 147, Railway 6 . Eaphael's Trust Estate, in re, 39 L.J. Ch. 200 ; L.E. 9 Eq. 233, Trust F 8 . Eappahannook, otherwise Beatrice, The, 36 L.J. Adm. 9, Admiralty A3 , otherwise Beatrice, The (No. 2), 36 L.J. Adm. 10, Admiralty D 1 . Easoh, ex parte, in re Accidental and Marine Insurance Co., 36 L.J. Ch. 75, Comp. F 32. 152 Eashdall v. Ford, 35 L.J. Ch. 769 ; L.E. 2 Eq. 750, Company C 38 . Bathbone v. Munn, 9 B. & S. 708, County Court A3. Eawlings v. Metropolitan Eail. Co., 37 L.J, Ch. 824, Lands Clauses Act 8 Eawlins' Estate, in re, L.E. 1 Eq. 286, Settled Estates 5 . Eawstorne v. Backhouse, 37 L.J. C.P. 26 ; L.E. 3 C.P. 67, Sahtwn 6 . Eayment y. Minton, 35 L.J. Ex. 153 ; 4 H. & C, 371 ; L.E. 1 Ex. 244, Apprentice 2 Eayne, in re, ex parte Eayne, L.E. 3 Ch. 152, Bankruptcy 83 . Rayner v. Ritson, 35 L.J. Q.B. 69, Produc- tion 1 . . . . Eayson y. Parton and Page, Johnson inter- yening, 39 L.J. P. & M. 20 ; L.E. 2 P. & D. 36, Probate M 4 Eead v. Great Eastern Eail. Co., 37 L.J. Q.B. 278; 9 B. & S. 714; L.E. 3 Q.B. 855, Pleading at Law 5 . , ex parte, in re Joint-Stock Discount Co., 36 L.J. Ch. 472, Company E 91 . Eeadhead v. Midland Rail. Co., 36 L.J. Q.B. 181 ; 8 B. & S. 971 ; L.R. 2 Q.B. 412 ; (Ex. Ch.) 38 L.J. Q.B. 169; 9 B. & S. 519; L.E. 4 Q.B. 379, Carrier 1 . Keoife and San Francisco Eail, Co., in re, and in re Bahia, &c., Eail. Co., and in re Trittin and others, 37 L.J. Q.B. 183; 9 B. & S. 844 ; L.E. 3 Q.B. 684, Company E 104 . Eed Rose, The, L.E. 2 A. & E. 80, n. to the Feronia, Shipping K 3 . Eedmayne y. Forster, 35 L.J. Ch. 847; 36 B. 529 ; L.E. 2 Eq. 467, Partnership 19 . Eedpath v. Wigg, 35 L.J. Ex. 211 ; 4 H. & C. 432 ; L.E. 1 Ex. 336, Compo. Deed 123 . 184 Eedway y. Sweeting, 36 L.J. Ex. 186 ; L.R. 2 Ex. 400, Practice ai Law 34 . . 442 in re, ex parte Eedway, 35 L.J. Bankr. ' 20, Composition Deed 106 . . . 182 Eeece's Estate, in re, Gould y. Gould, 35 L.J. Ch. 794 ; L.E. 2 Eq. 609, Costs in Eq. 36 205 Eeed V. Fenn, 36 L.J. Ch. 464, Limitations, Statute of, 9, . , . . 337 Eees' case, Chorlton v. Johnson, 38 L.J. C.P. 39; L.E. 4 C.P. 400, Parliament 65 . 401 9 14 113 207 309 535 529 21 63 487 486 420 132 76 134 551 408 710 TABLE OF CASES. 520 30 Eeese Eiver Silver- Mining Co. v. Smith, 39 L.J. Ch. 849 ; L.E. 4 E. & I. App. 64, Company E 188 . . . . 147 , in re, ex parte Smith, M.E. 36 L.J. Ch. 385; (L.JJ.) ibid. 618; L.E. 2 Ch. 604, ^'ompanyE 188 . . .147 V. Atwell, L.E. 7 Eq. 347, Pr. in Eg. K 2 460 Eeevea v. Watts, 35 L.J. Q.B. 171 ; 7 B. & S. 523 ; L.E. 1 Q.B. 412, Compo. Seed 25 . 171 Eeffall V. Eeffell, 35 L.J. P. & M. 121 ; L.E. 1 P. &D.' 139, Will, Formalities 38 . 640 Eegina v. Abingdon Union, 39 L.J. M.C. 153 ; L.E. 5 ft.B. 406, Poor 13 . . 429 V. Allen, 7 B. & S. 902, Justices 13 .303 T. Anderson, 38 L.J. M.C. 12, Adm. A 8 9 r. Ashby Folville, 36 L.J. M.C. 164; 7 B. & S. 277 ; L.E. 1 a.B. 213, Highway 1 277 V. Backhouse, 36 L.J. Q.B. 7 ; 7 B. & S. 911 ; L.E. 2 O.B. 16, PuUio Health Act 4 . 493 . y. Baker, 36 L.J. Q.B. 242; L.E. 2 a.B. 621, Sewers 4 . . . .537 V. Barnes, 36 L.J. M.C. 204 ; L.E. 1 C.C.E. 45, Larceny 9 . . .322 V. Barrow, 38 L.J. M.C. 20; 10 B. & S. 674; L.E. 1 C.C.E. 166, Bape 2 . 513 V , L.E. 4 Q.B. 677, Vestry . 605 V. Battle Union, 36 L.J. M.C. 1 ; 8 B. & S. 12 ; L.E. 2 a.B. 8, Sate 37 . T. Beale, Frederick, 35 L.J. M.C. 60; L.E. 1 C.C.E. 10, Assault 2 V. Bertrand, L.E. 1 P.C. 620 ; 36 L.J. P.C. 61 (sub nom. Attorney General of N. S. Wales v. Bertrand), Privy Council 10 471 V. Bilston, Orerse'ers of, 35 L.J. M.C. 73; L.E. 1 a.B. 18, Sate 31 . . 519 r. , 35 L.J. M.C. 97, Sate 30 . 519 V. Blizard, 36 L.J. Q.B. 18; 7 B. & S. 922; L.E. 2 Q.B. 56, Quo Warranto 2 . 497 V. Bolton, the Mayor, &e. of, 39 L.J. Q.B. 77 ; L.E. 5 Q.B. 251, Mandamus 1 . 344 Municipal Corporation 11 . . 379 T. Bolton Le Sands, 35 L.J. M.C. 64, Poor 9 (Bemoval) .... 429 V. Bowers, 35 L.J. M.C. 206; L.E. 1 C.C.E. 41, Embezzlement 3 . . . 248 T. Brackenridge, 37 L.J. M.C. 86 ; L.E. 1 C.C.E. 133, Forgery 1 . . .267 V. Brown, in re Midland and South- western Junction Eail. Co., 36 L.J. Q.B. 322; 8 B. & S. 466; L.E. 2 Q.B. 630, Lands Clauses Act 31 V. Brown, Elizabeth, 39 L.J. M.C. 94 ; L.E. 1 C.C.E. 244, Concealment of Birth . V. Brown and Hedley, 36 L.J. M.C. 59 ; L.E. 1 C.C.E. 70, Evidence 7 V. Bullock, 37 L.J. M.C. 47; L.E. 1 C.C.E. 115, Maliciously Wounding Cattle 2 343 V. Buttle, 39 L.J. M.C. 115; L.E. 1 C.C.E. 248, Perjury 3 . . . V. Carmarthen, Justices of, 38 L.J. M.C. 129; 10 B. & S. 586; L.E. 4 Q.B. 686, Justice of the Peace 4 V. Cambrian Eail. Co., 38 L.J. Q.B. 198; 10 i. & S. 316; L.E. 4 Q.B. 320, Lands Clauses Act 37 . . , 315 314 186 250 418 . 302 Eegina v. Carlin, The Salvador, 39 L.J. Adm. 33 ; L.E. 3 P.C. 218, Foreign Enlistment Act 1 266 V. Carpenter, 36 L.J. M.C. 169; L.E. 1 C.C.E. 29, Embezzlement 5 . . 248 V. Castleview, Leicester, 36 L.J, M.C. 192 ; B. & S. 636 ; L.E. 2 Q.B. 493, Bate 21 517 V. Chart, and Longbridge Upper Half Hundred, Inhabitants of, 39 L.J. M.C. 107; L.E. 1 C.C.E. 237, Highway 3 . .277 V. Chivelstone, 36 L.J. M.C. 113; 8 B. 6 S. 596, Bate 36 . . . .520 V. Chorlton-on-Medlock, Overseers of, 35 L.J. M.C. 66, Sate 40 . . . 621 V. Clark, 36 L.J. M.C. 16 ; L.E. C.C.E. 54, Crown Cases Seserved V. Cooper, 39 L.J. Q.B. 273; L.E. 5 Q.B. 457, Quo Warranto 6 . V. Cutbush, 36 L.J. M.C. 70 ; L.E. 2 ; Q.B. 179, Justice of the Peace 8 V. Curgerwen, 35 L.J. M.C. 68 ; L.E. -1 C.C.E. 1, Biyamy 2 V. Dallimore, L.E. 1 C.P. 13, Colonial Law 35 . V. Damerell, 37 L.J. M.C. 21 ; 8 B. & S. 669 ; L.E. 3 Q.B'. 60, Bastardy 2 V. Darlington Local Board of Health, 35 L.J. Q.B.' 46, Public Health Act 12 . V. Davis, 39 L.J. M.C. 135; L.E. 1 C.C.E. 272, Eeceiving Stolen Goods 6 V. Diplock, 38 L.J. Q.B. 297; 10 B. & S. 613; L.E. 4 Q.B. 649, Coroner . Quo Warranto 6 . V. Dorset, Justices of, 36 L.J. M.C. 210 ; 7 B. & S. 654 ; L.E. 1 Q.B. 558, Highway 4 278 V. Dowey, 37 L.J. M.C. 52, False Pre- tence 4 . V. Dowlais Iron Co., 10 B. & S. 208, Sate 34 . V. Eaves, 39 L.J. M.C. 70 ; L.E. 6 Ex. 76, Excise 2 . . . . v. Elworthy, 37 L.J. M.C. 3 ; L.E. 1 C.C.E. 103, Perjury 6 . . . V. Exeter, Governors and Guardians of, 38 L.J. Ch. 126; 10 B. & S. 433; L.E. 4 Q.B. 341, Poor 6 . V. Exeter, Mayor, &o., of, Dipstale's case, L.R. 4 Q.B. 110, Municipal Corporation 2 . 378 — — V. , Wescombe's case, L.E. 4 Q.B. 110, Municipal Corporation 3 V. Eyre, 36 L.J. M.C. 159; L.E. 3 Q.B. 487, Justice of the Peace 3 V. Falkingham, 39 L.J. M.C. 47 ; L.E. 1 C.C.E. 222, Misdemeanor 3 Parent and Child 2 . . . V. Farrer, 36 L.J. M.C. 210 ; 7 B. & S. 654 ; L.E. 1 Q.B. 668, Highway 4 . V. Firth, 38 L.J. M.C. 54, Larceny 8 . . V. Fisher, 36 L.J. M.C. 57; L.E. 1 C.C.E. 7, Malicious Injury 1 V.Fletcher, 35 L.J. M.C. 172; L.E, C.C.E. 39, Bape 1 . V. French, 39 L.J. M.C. 58; L.E. C.C.E. 217, Forgery 3 V. Garland, "39 L.J. Q.B. 86; L.E. 6 Q,S. 169, • Copyhold & . . 193 216 497 . 303 62 104 61 495 521 198 498 262 620 265 419 428 378 302 369 392 278 322 .-343 1 . 613 1 . 267 TABLE OF CASES. 711 FA.OE Eegina v. Gaunt. See Eeg. v Staffordshire V. Glossop Union, Guardians of, 35 L.J, M.C. US ; L.R. 1 Q.B. 227, Poor 23 , 431 V. Gloucestershire, Justices of, 38 L.J. M.C. 73; 10 B. & S. 42; L.E. 4 Q.B. 285, Justice of the Peace 6 . . . 302 V. Glyde, 37 L.J; M.C. 107; L.E. 1 C.C.E. 139, iareeny 2 .. . .321 T. Godmanchester Local Board of Health, 35 L.J. Q,B. 125 ; 7 B. & S. 307 ; L.E. 1 a.B. 328, Public Health Act 21 . . 496 V. Grant. See Eeg. v. Staffordshire V. Great Western Eail. Co., Cliureh- wardeus of St. Mary, Cardiff, prosecutors, 38 L.J. M.C. 89 ; 10 B. & S. 318 ; L.E. 4 Q.B. 323, Sate 39 . . . .520 —1— V. Gregory, 36 L.J. M.C. 60 ; L.E. 1 C.C,E. 77, Feloni/ 1 . ■ . Solicitation .... V. Grey, Sir George, 35 L.J. M.C. 171 ; B. &S. 434; L.E. 1 a.B. 469, Salmon 1 V. Greenland, 36 L.J. M.C. 37 ; L.E. 1 C.P. 65, Justice of the Peace 11. T. Guthrie, 39 L.J. M.C. 96; L.E. 1 C.C.E. 241, Assault 1 . . . T. Hadfield, 39 L.J. M.C. 131; L.E. 1 C.E. 253, Bailway 74 / . T. Hall, 35 L.J. M.C. 251 ; 7 B. & S. 642 ; L.E. 1 a.B. 632, Ghva-oh 19 . Justice of the Peace 17 . V. Hamilton, 37 L.J. M.C. 181 ; L.E. 3 Q.B. 718, Justice of the Peace 6 V. Hapgood & Wyatt, 38 L.J. M.C. 83 ; L.E. 1 C.C.E. 221, Indictment 5 . V. Hardy, 38 L.J. Q.B. 9; 9 B. & S. 926 ; L.E. 4 Q.B. 117, Public Health Act 3 492 . V. Heath, 35 L.J. M.C. 113 ; 7 B. & S. 285 ; L.E. 1 Q.B. 218, Rate 26 . .518 T. Hereford, Dean and Chapter of, 39 L.J. Q.B. 197 ; 10 B. & S. 996 ; L.E. 5 Q.B. 196, Church 4 . . , . 86 V. HicHin, 37 L.J. M.C. 89 ; L.E. 360, Obscene Book 1 . . . .391 V. Hilbert, 38 L.J. M.C. 61 ; L.E. 1 C.C.E. l&i,' Abduction 1 . . .1 V. Hodgkiss, 39 L.J. M.C. 14; L.E. 1 C.C.E. 212, Perjury 1 . . ' .418 V. Hughes, 35 L.J. P.O. 23 ; L.E. 1 V.C.il, Colonial Law ZS . . .104 V. Hulme, 39 L.J. Q.B. 149 ; L.E. 6 Q.B. 377, Parliament 10 . . .395 I V. Huntingdonshire, Justices of, L.E. 1 Q.B. 36, Highway 10 . . .279 V. Ipstones, Inhabitants of, 37 L.J. M.C. 37; 9 B. & S. 106; L.E. 3 Q.B. 216, Highway 20 . . . .280 V. Ireland, 37 L.J. Q.B. 73 ; 9 B. & S. 19; L.E. 3 Q.B. 130, Mun. Corp. 6 . 379 V. Jari-is, 37 L.J. M.C. 1; L.E. 1 C.C.E. 96, Emdence 25 . . • 213 T. Jenkins, 38 L.J. M.C. 82; L.E. 1 C.C.E. 187,' Evidence 24 . . . 253 V. Kay, 39 L.J. M.C. 118; L.E. 1 C.C.E. 257, Forffery 4 . . .267 262 562 527 303 30 512 304 302 283 Eegina v. Keena, 37 L.J. M.C. 43 ; L.E. 1 C.C.E. 113, Embezzlement 1 . .248 V. Kennet, Eeg. v. Wood, Eeg. v. Saunders, 38 L.J. M.C. 144 ; 10 B. & S. 634 ; L.E. 4 Q.B. 565, Bread 4 . .73 V. Kent, Justices of, 35 L.J. M.C. 201 ; 7 B. & S.. 394 ; L.E. 1 Q.B. 385, Poor 24, {Eemoval of Lunatic, Appeal from Order) . 431 T , 36 L.J. M.C. 130 ; 8 B. & S. 343, Mandamus 2 . . . . 344 V , L.E. 1 Q.B. 388, Friendly So- ciety. See Eeg. v. Lambarde. V. Kilham, 39 L.J. M.C. 109 ; L.E. 1 C.C.E. 261, False Pretence 3 . .261 T. Lambarde, and others. Justices of Kent, L.E. 1 Q.B. 388, Fnendly Society 12. 273 V. Lapley, and Penkridge Union. 9 B. & S. 668, Bate 33 . . . .519 V. Lee, Inhabitants of, 35 L.J. M.C. 105; 7B.&S. 188;L.E. 1Q.B.241, Bate 12 516 V. Lindsev, Justices of 'the parts of, 36 L.J. M.C. 90"; L.E. 1 Q.B. 68, Highway 7 . 278 v. Llantrissant, 38 L.J. M.C. 93; 10 B. & S. 328 ; L.E. 4 Q.B. 354, Bate 29 . 619 V. Lofthouee, 35 L.J. Q.B. 145 ; 7 B. & S. 447 ; L.E. 1 Q.B. 433, Quo Warranto 4 497 V. London, Chatham and Dover Eail. Co., 37 L.J. Q.B. 75 ; L.E. 3 Q.B. 170, Costs at Law 32 . . . .202 V. London, Mayor of, L.E. 2 Q.B. 292, Statute 7 . . . . .570 V. London, Lord Mayor of, sub nom. Walker v. same, 38 L.J. M.C. 107 ; 10 B. & S. 341 ; L,E. 4 Q.B. 371, Jur. at Law 2. 298 V. Lowrie, 36 L.J. M.C. 24 ; L.E. 1 C.C.E. 61, Larceny 7 . . .322 V. Lumley, 38 L.J. M.C. 86 ; L.E. 1 C.C.E. 196, Presumption 4 . . .464 V. M'Cann, 37 L.J. M.C. 25 ; 9 B. & S. 33 ; L.E. 3 Q.B. 141 ; (Ex. Ch.) 37 L.J. M.C. 123; 9 B. & S. 44; L.E. 3 Q.B. 677, Bate 23 . . . .518 T. M'Grath, 39 L.J. M.C. 7; L.R. C.C.E. 206, Larceny 4 . . .321 V. McKale, 37 L.J. M.C. 27 ; L.E. 1 C.C.E. 125, Larceny 3 . . .321 V. Maopherson, 39 L.J. P.C. 59, Colonial Law 30 . . . . .103 v. Maiden, OverseerB of, 38 L.J. M.C. 125; 10B.&S.323;L.E.4Q.B.326,i?a!;el4 516 . V. Manchester, Sheffield and Lincoln- shire Eail. Co., 36 L.J. Q.B. 171 ; L.E. 2 Q.B. 336, Lands CI. Act 34 . . 314 V. Marsden, 37 L.J. M.C. 80 ; L.E. 1 C.C.E. 131, Arrest 10 . . .29 T. Masters and others. Justices of Glou- cestershire, 38 L.J. M.C. 73 ; L.E. ,4 Q.B. 285; 10 B. & 8. 42, Justice ofthePeaceS . 302 V. Martin, 36 L.J. M.C. 20 ; L.E. 1 C.C.E. 56, False Pretence 2 . / . 261 V. , 39 L.J. M.C. 31 ; L.E. 1 C.C.E. 214, Coining 1 . . .96 V. Maryleboue, Justices for, 37 L.J. M.C. 181 ; L.E. 3 Q.B. 718, Justice of the Peace 5 302 712 TABLE OF CASES. 61; 314 344 380 282 471 262 261 Eegina r. Medway tTnion, 37 L.J. M.C. 100 ; 2 B. & S. 349 ; L.E. 3 Q.B. 383, Voor 22 . 431 V. Metropolitan Board of Works (Bat- stone Claimants), 38 L.J. M.C. 201 ; 10 B. & S. 391 ; L.E. 4 Q.B. 358, Lands CI. Act 23 312 V. , Greenwich ease, 38 L.J. M.C. 24; 9B.&S.739; L.R. 4 Q.B. 15, Rate 1% 517 V. Metropolitan District Eail. Co. See Eeg. V. Vaughan and Same V. Metropolitan Rail. Co. and Stone. See Eeg. T. Stone^and Same v. Midland and South-Western Junc- tion Eail. Co., 36 L.J. Q.B. 322 ; 8 B. & S. 456, Lands CI. Act 31 T. Monmouth, Mayor, &c., of, 39 L.J. Q.B. 77 ; L.E. 6 Q.B. 251, Mandamus 1 Mimicipal Corporation 11 v. Morris, 36 L.J. M.C. 84; L.E. 1 C.C.E. 90, Indictment 3 V. Murphy, 37 L.J. P.C. 21 ; L.E. 2 P.C. 35, Privi/ Council 7 . V , 38 L.J. P.C. 531 L-Ji- 2 P.C. 535, Feloni/ 2 . . . T. Naylor, Francis, 35 L.J. M.C. L.E. 1 C.C.E. 4, False Pretence 1 . . V. Newborough. See Eeg. v. Carmarthen V. Northowram, and Clayton Eatepayers, 35 L.J. Q.B. 90; 7 B. & S. 110; L.E. 1 Q.B. 110, Public Health Act 2 V. Northwich Union, Guardians of, 36 L.J. M.C. 67 ; 8 B. & S. 364 ; L.E. 2 a.B. 383, Poor 18 . — ■ — V. Norwood, Overseers of, 36 L.J. M.C. 91; 2 L.E. G.B. 467, Poor 10 V. Oldham, a Baptist Minister, 38 L.J. a.B. 125; 10 B. & S. 193; L.E. 4 Q.B. 290, Municipal Corp. 4 V. Oldham, Mayor, &c., of, 37 L.J. M.C. 169; 9 B. & S. 202; L.E. 3 Q.B. 474 Hate 24 v. Parker, 39 L.J. M.C. 60 ; L.E. 1 C.C.E. 225, Evidence 28 . . . 254 V. Parkinson, 37 L.J. Ex. 62 ; 8 B. & S. 769 ; L.E. 3 Q.B. 11, Mun. Corp. 7 , T. Parsons,. 36 L.J. M.C. 167; L.E. C.C.E. 24, Evidence 15 V. Payne, 35 L.J. M.C. 170; L.E. C.C.E. 27, Prison 1 V. >Pearson, 39 L.J. M.C. 76 ; L.E. 6 Q.B. 237, Assault 3 . . . V. Penkridge Union Assessment Com- mittee. See Eeg. v. Lapley V. Phillips, 36 L.J. M.C. 217; 7 B. & S. 593 ; L.E. 1 Q.B. 648, Highway 8 V. Plenty, 38 L.J. Q.B. 205 ; 9 B. & S. 386 ; L.E. 4 Q.B. 346, Mun. Corp. 8 . 379 V. Pratt, 37 L.J. M.C. 23 ; L.E. 3 Q.B. 64 ; L.E. 6 Q.B. 176, Highway 16 . . 280 V , 39 L.J. M.C. 72; L.E. 5 QB. 176; 4F. &F. 316, Ddtor and Creditor 10 221 V. Prince, 39 L.J. M.C. 8, Larceny 6 . 322 V. Proud, 36 L.J. M.C. 62 ; L.E. 1 C.C.E. 71, Apprentice 4 . . .22 . V. Eand, 35 L.J. M.C. 157 ; 7 B. & S. 297 ; L.E. 1 Q.B. 230, Justice of the Peace 1 301 492 430 . 429 378 618 379 1 251 470 30 278 223 267 S8 321 621 PAQE Eegina v. Eeardon and Bloor, 35 L.J. M.C. 171; L.E. 1 C.C.E. 31, Beoeiving Stolen Goods 2 . , . . . .821 V. Eedman, Henry, 36 L.J. M C. 89 ; L.E. 1 C.C.E. 12, Threats 1 . .581 V. Ehymney Eail. Co., 38 L.J. M.C. 76 ; 10 B. §; S. 198 ; L.E. 4 Q.B. 276, Bate 6 614 V. Eice and Wilton, 36 L.J. M.C. 93 ; L.E. 1 C.C.E. 21, Disorderly Mouse 1 T. Eitson, 39 L.J. Ch. 10 ; L.E. 1 C.C.E. 200, Forgery 2 . . . V. Eobinson, 36 L.J. M.C. 78 ; 4 F. & F. 43; L.E. 1 C.C.E. 80, Baron and Feme 16 V. Eogers, 37 L.J. M.C. 83 ; L.E. 1 C.C.E. 136, Larceny 1 Beceiiring Stolen Goods 3 V. Eussell, 10 B. & S. 91, Cao Warranto 5 498 V. Eyland, 37 L.J. M.C. 10 ; L.E. I C.C.E. 99, Child 3 . . • .392 V. St. George-in-the-East, 39 L.J. M.C. 90 ; L.E. 8 Q.B. 364, Poor 17 . -. 430 T. St. Leonard's, Shoreditch, InhabitantB of, 36 L.J. M.C. 48 ; L.E. 1 Q.B. 21, Poor 12 429 V. St. Martin's, Leicester, 36 L.J. M.C. 99 ; 8 B. & S. 536 ; L.E, 2 Q.B, 493, Bate 21 ... , V. St. Mary's, Islington, 39 L.J. M.C. 13 7; L.E. 5 Q.B. 448, Poor IS V. St. Thomas's Union, Co. Devon, 39 L.J. JVI.C. 83 ; L.E. 6 Q.B. 371, Poor 7 V. Saunders, Eeg. v. Kennett, Reg. v. Wood, 38 L.J. M.C. 144 ; 10 B. & S. 534 ; L.R. 4 Q.B. 666, Bread 4 . V. Saunders, or Sanders, 36 L.J. M.C. 87.; L.R. 1 C.C.R. 75, Constable . Warrant ..... V. Schmidt, 35 L.J. M.C. 94 ; L.R. 1 C.C.E. 15, Beoeiving Stolen Goodsl r. Sculcoates, Inhabitants of, 38 L.J. M.C. 33; 9 B. & S. 911; L.E. 4 Q.B. 33, Poor 19 (Bemoval) V. Seberg, L.E. 1 C.C.E. 264, Shipp. 1 655 V. Shaw, 37 L.J. M.C. 112; L.E. 1 C.C.E. 145, Lunatic 1 . . . V. Shepherd, 37 L.J. M.C. 45; L.E. 1 C.C.E. 118, Trees .... V. Sherford, Inhabitants of, 36 L.J. M.C. 113; 8 B. & S. 596; L.E. 2 Q.B. 603. i?afe35 .... V. Sherlock, 35 L.J. M.C. 92 ; L.R. 1 C.C.E. 20, Indictment 1 . V. Shickle, 38 L.J. M.C. 21, Larceny 6 . 322 V. Smith, 37 L.J. M.C. 6; L.R. 1 C.C.E. 110, Perjury 5 . . .419 V. Smith, Jesse, 39 L.J. M.C. 112; L.E. 1 C.C.E. 266, Beoeiving Stolen Goods i 621 ' V. Southampton Port and Harbour Com- missioners of, 39 L.J. Q.B. 263; L.R. 4 B. & I. App. 449, Statute 3. V. Spurrell, 35 L.J. M.C. 74 ; L.R. 1 Q.B. 72, Poor 4 . . V. Stephens, 35 L.J. Q.B. 261 ; 7 B. & S. 710 ; L.E. 1 Q.B. 702, Nuisance 17 V. Stainer, 39 L.J. M.C. 54; L.E. 1 1 C.C.E. 2ZQ, Embeeslemmt 2 . . 248 517 430 428 73 188 607 621 430 341 584 520 282 569 428 391 TABLE OF CASES. 713 61 . 620 309 313 & Eegina v. Staffordshire, Justices of, 36 L.J. M.G. 89 ; 8 B. & S. 365 ; L.E. 2 Q.B. 466, Bastardy 1 . ... • V. Stokenham, Inhabitants of, 36 L.J. M.C. 113; 8 B. & S. 896 ; L.R. 2 Q.B. 603, Bate 35 . V. Stone an4 the Metropolitan Rail. Co., 36 L.J. M.C. 208; 7 B. & S. 769; L.E. 1 Q.B. 529, Lands CI. Act 2 . ^ Lands Clauses Act 26 . -: — v.Strugnell, 35 L.J. M.C. 78; 7 B. S. 124;-L.K. 1 Q.B. 93, Theatre 1 . v. Summers, 38 L.J. M.C. 62 ; L.R. C.C.E. 182, Conviction 1 . Misdemeanor 2 . V. Surrey, Justices of, 39 L.J. M.C 49 ; L.E. 5 Q.B. 87, Highway 11. V. _— , 39 L.J. M.C. 146; L.R. 5 QJB. 466, Highway 9 . . . V. Taylor, 38 L.J. M.C. 106; L.R. 1 C.C.R. 194; 4 F. & F. 511, Indictment 4 . Misdemeanor 2 .... T. Tewkesbury, Mayor, Aldermen and Burgesses of, 37 L.J. Q.B. 288 ; 9 B. & . L. 683 ; L.R. 3 Q.B. 629, Mun. Corp. 10 . 379 V. Tomlinson, 56 L.J. M.C. 41 ; L.R. 'l C.C.R. 49, Fetyury 2 . . . T. Tugwell, 37 L.J. Q.B. 276 ; 9 B. & S. 367 ; L.E. 3 Q.B. 704, Mun. Corp. 9 . V , 38 L.J. Q.B. 12; 9 B. & S. 669, Municipal Corporation 6 V. Twiss, Sir Travers, 38 L.J. Q.B. 228; 10 B. & S. 298; L.R. 4 Q.B. 407, Prohibition 2 . . . . V. Tyree, 38 L.J. M.C. 68 ; L.R. 1 C.C.R. 177, Embezzlement 4 V. Tyson, 37 L.J. M.C. 7 ; L.R. 1 C.C.R. 107, Perjury 4 . . . V. Vaughan and Metropolitan District Rail., Co., 38 L.J. M.C. 49 ; 9 B. & S. 892 ; L.R. 4 Q.B. 190, Lands CI. Act 17 v. Von Seberg, 39 L.J. M.C. 133, Evid. 13 251 v. Wallasey Local Board of Health, 38 L.J. Q.B. 217; 10 B. & S. 428; L.R. 4 Q.B. 351, Puhlic Health Act 14 T. Watson, 37 L.J. M.C. 163 S. 219 ; L.R. 3 Q.B. 762, Rate 38 T. Wells, 36 L.J. M.C. 109; 8 B. & S. 607 ; L.R. 2 Q.B. 642, Bate 32 . V. Western, 37 L.J. M.C. 81 C.C.R. 122, Indictment 2 . , v.West Riding, Justices of, Drake's case, 39 L.J. M.C. 17 ; 10 B. & S. 840 ; L.R. 5 Q.B. 33, Alehouse 1 . , V. Westmoreland, Justices of, 37 L.J. M.C. 115; 9 B. & S. 288; L.R. 3 Q.B. 467, Prison 2 . . ■ . V. Whitby Union, 39 L.J. M.C. 97 ; L.E. 5 Q.B. 325, Poor 20 . V. White, 36 L.J. Q.B. 267 ; 8 B. & S. 687 ; L.R. 2 Q.B. 857, Mun. Corp. 1 T. Whitehead, 35 L.J. M.C. 186 ; L.R. 1 1 C.C.R. 33, Euidence 2 . ... ■ V. Wigan, Mayor of, 39 L.J. M.C. 68 ; L.R. 6 Q.B. 267, Prison 3 . Digest, 1865-70. 680 . 192 279 279 283 369 418 379 379 491 . 248 418 310 9 B. & 475 620 819 L.R. 1 . 282 17 470 431 378 250 470 Regina v. Wood, Reg. v. Kennett, Reg. v. Saunders, 38 L.J. M.C. 144 ; 10 B. & S. 534 ; L.E. 4 Q.B. 559, Bread 2 . V. Woodhani Walter, Lord of the Manor of, 10 B. & S. 439, Copyhold 3 V. Wyatt, 39 L.J. M.C. 83 ; L.R. 1 C.C.R. 221, Indictment 6 . V. Wycoijibe Rail. Co., 36 L.J. Q.B. 121; 8 B. & S. 269; L.R. 2 Q.B. 310, Eailway 47 . Eeid, David Alexander, in the goods of, 36 L.J. P. & M. 43 ; Lda. 1 P. & D. 74, Will, Formalities 10 . V. Aberdeen, Newcastle and Hull Steam Co., The Princess Alice, and The Alice, 38 L.J. Adm. 8 ; L.R. 2 P.C. 246, Privy Council 16 . , Mary,' in the goods of, 38 L.J. P. M. 1, Will,' Formalities 638. Reigate, Mayor of, v. Hart, 37 L.J.' M.C, 70; 9 B. & S. 129; L.R. 3 Q.B. 244, Justice of the Peace 16 Rein v. Lane, 36 L.J. Q.B. 81 ; 8 B. & S, 83 ; L.R. 2 Q.B. 144, Stamp 1 Renaud v. Guillet, dit Tourangeau, 37 L.J P.C. 1 ; L.R. 2 P.C. 4, Colonial Law 2 Eendle v. Metropolitan Provincial Bank, 36 L.J. Ch. 789. Practice in % W W 1 Rennie v. Massie, 36 L.J. P. & M. 124 L.R. 1 P. & D. 118, Probate M 1 . Renshaw's Trusts, in re, L.R. 4 Ch. 783 D-ust F 4 . Restall V. London and South-Western Rail Co., 37 L.J. Ex. 89 ; L.R. 3 Ex. 141, Costs at Law 6 . • . Reus V. Picksley, 35- L.J. Ex. 218 ; 4 H. & C. 688 ; L.R. 1 Ex. 342, Frauds, Stat, of 10 269 Reynolds v. Bowley, 36 L.J. Q.B. 1 ; 7 B. & S. 67; L.R. 2 Q.B. 41; (Ex. Ch.) 36 L.J. Q.B. 247 ; 8 B. & S. 406 ; L.R. 2 Q.B. 474, Bankruptcy 61 V. Jex, 7 B. & S. 86, 5'A»>;)ra^ K 7 Ehoads, in the goods of, 36 L.J. P. & M. 125 ; L.E. 1 P. &D. 119, Probate C 2 Ehodes v. Bate, 36 L.J. Ch. 267; L.R. 1 Ch. 262, Undue Influence I . V. Ehodes, 36 L.J. Ch. 729 ; lIe. 1 Ch. 483, Practice in Eq.Tul Rhys and Richard's, and The Dare Valley Rail. Co., in re, 37 L.J. Ch. 719; L.R. 6 Eq. 429, Arbitratioii D 9 , in re, L.E. 4 Ch. 554, Arbitration D 15 Eicardo Schmidt, The, 36 L.J. P.C. 1 ; L.E. , 1 P.C. 115, Admiralty A 1 . Eich T. Whitfield, L.R. 2 Eq. 683, Conversion 1 192 Richards v. Harper, 35 L.J. Ex. 130 ; 4 H. & C. 65 ; L.R. 1 Ex. 199, Covenant 13 . 213 V. James, and Sharpe v. James, in re Spark V. HoUingsworth, 36 L.J. Q.B.- 116 ; 8 B. & S. 302 ; L.R. 2 Q.B. 285, Bill of Sale 1 . . . . .69, in re, L.R. 8 Eq. 119, Legacy 36 . 330 , in re, ex parte Astbury, ex parte Lloyd's Banking Co., 38 L.J. pankr. 9 ; L.E. 4 Oh. 630, ^Fixtures 7. ■ , . ,286 4Y 73 192 28S 607 637 472 19 304 667 97 462 485 593 198 50 551 4f9 597 450 26 25 8 714 TABLE OF CASES. PAGE Eichards, Elizabeth, in the goods of, 36 L.J. P. & M. 544 ; L.R. 1 P. & D. 156, Probate C 6 479 Eichardson v. Ardley, 38 L.J. Ch. 608, Fix- tures 3 . . V. Du Bois, 39 L.J. Q.B. 69 ; 10 B. & S. 830 ; L.E. 5 Q.B. 61, Baron ^ Feme 18 . v. Metropolitan Eail. Co., 37 L.J. C.P. 300, Negligence 32 . . T. Power, 33 B. 163; 35 L.J. C.P. 44; Will, Construction L 23 _:— V. Eichardson, 36 L.J. Ch. 653; L.E. 3 Eq. 686, Vol. Settlement 1. V. Smith, 39 L.J. Ch. 877; L.E. 5 Ch. 648, iSpecific Performance 6 T. Younge, 39 L.J. Ch. 475; L.E. 10 Eq. 275, Limitations, Stat, of 17 . Eiches V. wen, L.E. 3 Ch. 820, Pr. in Eq.B.B.2 457 Eiehmond v. North London Eail. Co., 37 L.J. Ch. 273 ; (on App.) ihid; 886; L.E. 3 Ch. 679, Lands Clauses Act 84 . Eailway 16 . Eiehmond Hill Hotel Co., Elkington's case, 36 L.J. Ch. 593 ; L.E. 2 Ch. 511, Company E 168 , . . in re, King's case, 36 L.J. Ch. 718; L.E. 4 Eq. 566 ; (on App.) 38 L.J. Ch. 541 ; L.E. 3 Ch. 10, Comp. Deed 32 _ , Pellatt's case, 36 L.J. Ch. 613; L.E. 2 Ch. 627, Company E 47 Eickards v. Eickards, 36 L.J. Ch. 176, Par- tition 6 . Eicket v. Metropolitan Eail. Co., 36 L.J. a.B. 205 ; L.E. 4 E. & I. App. 175, Lands Clauses Act 20 . . Eicketts v. Eicketts, 35" L.J. P. & M. 92, Divorce 125. Eickman v. Johns, Eyton v. Denbigh, Euthyn and Corwen Eail. Co. 38 L.J. Ch. 74 ; L.E. 6 Eq. 488, Lands CI. Act 72 Eideout's Trusts, in re, 39 L.J. .Ch. 192 ; L.E. 10 Eq. 41, Evidence 9 . . . Eigby V. Publin Trunk, &e., connecting Eail. Co., in re Butler, 36 L.J. C.P. 282; L.E. 2 C.P. 686, Eailway 39 . Eighton V. Eighton, 36 L.J. Ch. 61, Lands Clauses Act S . . . . Eigley's Trusts, in re, 36 L.J. Ch. 147, Mort- main 6 . Eiley T. Paekington, 36 L.J. C.P. 204; L.E. 2 C.V. 551, Company A3 . Eippin Y. Bastin, 38 L.J. Ecol. 22 ; L.E. 2 A. & E. 386, Church Bate 2 V. , 38 L.J. Eccl. 33, Church Rate 5 Eippon, ex parte, in re Andrew, L.E. 4 Ch. 639, Bankruptcy 51 . ' . Eisdoa, ill the goods of, 38 L.J. P. & M. 40 ; L.E. 1 P. & D. 637, Baron ^ Feme 14 Eishtonv. Grissell, L.E. 6 Eq. 326; L.E. 10 Eq. 393, Master ^ Servant 4 Partnership 11 . Eitchings v. Cordingly, L.E. 3 Church 11 . Eixon, oxeciitovs of Farncombe. A. & E. 113, 264 58 386 . 628 605 . 563 339 320 602 144 172 . 127 405 311 . 239 318 251 506 309 377 107 96 96 48 ' 57 361 407 L.J. C.P. 243; Deed 62 L.E.-3 C.P. 546, Emary, 37 tvyii PAGE Eoberts v. Bury Improvement Commissioners, 38 L.J. C.P. 367 ; L.E. 4 C.P. 755 ; (Ex. Ch.) 39 L.J. C.P. 129; L.E. 5 C.P. 310, Contract 13. V. Hughes, L.E. 6 Eq. 20, Costs in Fkjuity 10 . ' . . , T. Eose, 35 LJ. Ex. 62 ; 4 H. & C. 103 ; L.E. 1 Er. 82, Nuisance 15 . Eoberts, in re, 39 L.J. Ch. 888, L.E. 10 Eq. 402, Declaration of Title 1 . . _ . Eobert's Trusts, in re, 38 L.J. iCh. 488 ;"L.E. 4 Ch. 561, Practice in Eq. E 9, E 1,0 , in re, 38 L.J. Ch. 708, Trust E 3 Eobertshaw v. Bray, 35 L.J. Ch. 844, Spe- cific Performance 25 . . . Eobertson v. Goss, 36 L.J. Ex. 351 ; L.E. 2 Ex. 396, Composition Deed 66 V. Smith and Lawrence, 39 L. J7 P. & M. 41 ; L.E. 2 P. & D. 43, Probate H 8 Eobinson v. Ainge, L.E. 4 C.P. 429, Parlia- ment 26 . T. Chartered Bank, 36 B. 79 ; L.E. 1 Eq. 32, Company C 8 . V. Emerson, 4 H. & C. 352, Poor 2 V. Great Western Eail. Co., 35 L.J. C.P. 123 ; H. &E. 97, Carrier 18 V. Nesbitt, Crown approver, Eeeves Gar- nishee, 37 L.J. C.P. 124; L.E. 3 C.P. 264, Attachment 2 ... V. Wray, L.E. 1 C.P. 490, Inclosure 5 . , in the goods of, 36 L.J. P. & M. 93 ; L.E. 1 P. & D. 384, Will, Form. 11 , in re, ex parte Graham, 36 L.J. Q.B. 203 r L.E. a.B. 387, Arrist 5 Psnalty ..... , an Attorney, 10 B. & S. 75, Attortiey 24 , an Attorney, in re, 37 L.J. Ex. 11; L.E. 3 Ex. 4, Attorney 35 . ' . and the Alliance Bank v. The Chartered Bank of India, 36 B. 79 ; L.E. 1 Eq. 32, Company C 8 . , . Eobinson's case, Crawley's case, in re Peru- vian Eail. Co., L.E. 4 Ch. 322, Company E 21 . #. . Eobson V. Dodds, 38 L.J. Ch. 547 ; L.E. 8 Eq. 301, Pj-. iwEy. G 6 . V. Whittitigham, 36 L.J. Ch. 227; L.E. 1 Ch. 442, Injunction 7 Eoche, ex parte, in re Bickerstaff, 37 L.J. Bankr. 16 ; L.E. 3Ch. 238, Bankruptcy Qi Eodger v. Comptoir d'Escompte de Paris and the Chartered Bank of India, Australia and China, 38 L.J. P.C. 30 ; L.E. 2 P.O. 393, Stoppage in Transitu, 7 . Eodhouse v. Mould, 36 L.J. Ch. 67, Adminis- tration 10 . . .. - . Eoe V. Bradshaw, 35 L.J. Ex. 71 ; 4 H. & C. 178^; L.E. 1 Ex. 106, BUI of Sale, 6 . Eoebuck v. Chadebet, 38 L.J. Ch. 488 ; L.E. 8 Eq. 127, Partition 9 . . . Eoebuck's case, 35 B. 467, Company E 186 . Eoecliff, The, 38' L.J. Adm. 56; L.E. 2 A. & E. 363, Shipping H 4 . Eoffey V. Bent, L.E. 3 Ex. 759, Forfeiture 4 190 203 390 221 448 692, 566 . 177 482 398 108 428 78 30 282 637 28 418 34 108 124 450 286 54 677 70 406 147 549 266 177 Eogers v. Powell, 38 L.J. Cb. 648, Evidence 8 251 TABLE OF CASES. 713 . 178 33 145 Eogers v, Roberts, 36 LJ. Ex. 40 ; 4 H. & C. 639 ; L.K. 2 Ex. 35, Comp. Deed, 73 ex parte, in re Bookham and Potter, 37 L.J. C.P. 276 ; L.R. 3 C.P. 490, Attorney 11 . . . Rogers' case and Harrison's case, in re Univer- sal Banking Co., L.R. 3 Ch. 663, Company E 169 Rogers, Alice, in re, 35 L.J. C.P. 71 ; H. & R. 86 ; L.R. 1 C.P. 47, Baron and Feme 10 Roleb V. Tiie Queen, L.R. 1 P.C. 198, Admi- ralty E . . . . . Rolfe T. Flower, L.R. 1 P.C. 27, Partner.sUp 20 409 Rolling Stock Co. of Ireland, in re Shackle- ' ford's case, 35 L,J. Ch. 818; L.R. 1 Ch. 567, Company E 165 RoUe V. Whyte, 37 L.J. Q.B. 105 ; 8 B. & S. 116 ; L.R. 3 Q.B. 286, Salmon 2 T. Whyte, Garnet and Backhouse, 9 B, & S. 306 ; L.R. 3 Q.B. 699, Salmon 4 ' . Rolphv. Crouch, 87 L.J. Ex. 8.; L.R. 3 Ex. -li. Damages 9 . . • . Rolt T. Whyte, 3 De G. J. & S. 360, Bank- ruptcy 106 . . ' . •Romney Marsh, Bailiffs of, v. Corporation of Trinity House, 39 L.J. Ex. 163 ; L.R. 5 Ex. 204, Damages 13 Eooth T. North-Eastern Rail. Co., 36 L.J. Ex. 83 ; L.R. 2 Ex. 173, Carrier 12 Roots, ex parte, in re Roots, 36 L.J. Bankr. 38 ; L.R. 2 Ch. 569, Composition Deed 80 . Roper V. Roper, 36 L.J. C.P. 270: L.R. 3 C.P. 32 ; (Ex. Ch.) 37 L.J. C.P. 7, Will I 25. Rose T. Rogers, 39 L.J. Ch. 791, Legacy 26 Rose, ex parte, in re Rose, Jj.R. 4 Ch. 648, County Court 17 . Rosita, 'The, and The Alice, Fairfoot v. Chal- win, 38 L.J. Adm. 20 ; L.R. 2 P.C. 214, Admiralty B 6 . Roskell V. Whitworth, 39 L.J. Ch. 765; L.R. 5 Ch. 459, Practice hi Eq^.Y & Ross V. Adcock, 37 L.J. C.P. 290 ; L.R. 3 C.P. 656, Church 6 V. Estates Investment Co., 36 L.J. Ch. 45 ; L.R. 3 Eq. 122; (on App.) 37 L.J. Ch. 873; L.R. 3 Ch. 682, Company E 126 . V. Gibbs and Gibbs v. Ross, 39 L.J. Ch. 61 ; L.R. 8 Eq.'522, Production 28 V. Ross, 38 L.J. P. & M. 49 ; L.R. 1 P. & D. 734, Divorce 46 (Connivance), and see 38 L.J. P. & M. 33 ; L.R. 1 P. & D. 629, Witness . . V. Tatham, 38 L.J. Ch. 577, Exor. 18 . Rossi V. Bailey, 37 L.J. Q.B. 204 ; 8 B. & S. 748 ; L.R. 3 Q.B. 621, Comp. Deed 84 . Rontledge v. Low, 37 L.J. Ch. 464; L.R. 3 E. & I. App. 1 00, Copyright 6 . Royal Liver Friendly Society, in re, and in re the Commissioners of Inland Revenue, 39 L.J. Ex. 37 ; L.R. 5 Ex. 78. Stamp 6 . Row V. Row, L.R. 7 Eq. 414, Costs in Eq. 15 V. Tonkin, 35 L.J. Ch. 4; 35 B. 115; L.:p,. 1 Eq. 9, Pr.js %R 1 Rowe V. Hopwood, 38 L.J. Q.B. 1 ; 9 B. & S. 881 ; L.R. 4 aB. 1, Lifant 3 57 15 144 528 528 218 55 219 77 179 623 329 208 11 465 87 138 . 490 23 257 180 . 196 568 204 462 284 PAQB Rowlan and Cranljshaw, in re, L.R. 1 Ch. 421, Bankrupti^ 99 . . . Rowland v. Cuthbertson, L.R. 8 Eq. 466, Dower ..... Rowley v. Rowley, 35 L.J. P. & M. 110; L.R. 1 Sc. App. 63, Divorce 15 ... Royal Bank of India case, in re Asiatic Bank- ing Corporation, L.R. 7 Eq. 91 ; (on App.) L.R. 4 Ch. 252, Company C 11 Royal Charter, The, 38 L.J. Adm. 36 ; L.R. 2 A. & E. 362, Admiralty D 14 ~. Royal Copper Mines of Cobre Co. in re, ex parte Kelk and ex parte Count Pahlen, 39 L,J. Ch. 231 ; L.R. 9 Eq. 107, Company E 114 in re, Weston's case, 39 L.J. Ch. 753 ; L.R. 5 Ch. 614, Company E 77 . Royal Hotel Co. of Great Yarmouth, in re, L.R. 4 Eq. 244, Com,pany C 29 . Royes v. Birley, Manchester case, 38 L.J. C.P. 203 ; L.R. 4 C.P. 296, ParUaTnent 5 Ruck V. Barwise, 35 L.J. Ch. 16, Will I I , Rudd V. Rowe, 39 L.J. Ch. 846 ; L.R. 10 Eq. 610, Annuity 14 Practice in Equity PP 7 . Rudge V. Bowman, 37 L.J. Q.B. 193 ; 9 B, & S. 864; L.R. 3 Q.B. 689, Company E 85 132 Rugg V. Kingsmill, 36 L.J. Eccl. 17'; L.R. 1 A. & E. 343 ; (P.C.) 37 L.J. Eccl. 132 ; L.R. 2 P.C. 59, Church 15 . . . V. Bishop of Winchester, 38 L.JrEccl. 23 ; L.R. 2 P.C. 223, Church 27 . Rusden v. Pope, 37 L.J. Ex. 137; L.R. 3 Ex. 269, Shipping M 2 . Rush, in re, 39 L.J. Ch. 769; L.R. 10 Eq. 442, Judgirwnt 12 . Practice in Eq. 00 2 . — — , a Solicitor, in re, L.R. 9 Eq. 147i At- torney 23 . Rushbrook v. Lawrence, L.R. 8 Eq. 25 ; (on App.) 39 L.J. Ch. 93 ; L.R. 5 Ch. 3, Mort- gage 7 .... . Rushton V. Crawley, L.R. 1 Eq. 522, Patent 6.4)0 Russell V. Harford, L.R. 2 Eq. 507, V. ^ P. 1 598 , Andrew, in the goods of, 38 L.J. P. & M. 31 ; L.R. 1 P. & D. 634, Prdbate F 3 . Russell, in re, ex parte Pooley, L.R. 6 Ch. 722, Bankruptcy 36 . . . Russell's Estate, in re, 30 L.J. Ch. 461, Trust F6. Russian, Vyksounsky, Iron Co., Stewart's case, 35 L.J. Ch. 738 ; L.R. 1 Ch. 674, ~ E 140 , . , —, in re, Kincaid's case, 36 L.J. Ch. 499 L.R. 2 Ch. 412, Company E 145 . . in TO, Talte's case, 36 L.J. Ch. 475 L.R. ? Eq. 795, Company E 146 . , in re, Webster's case, L.R. 2 Eq. 741 Compan,, E 140 Whitehouse's case, L.R. 3Eq. 790, Conl- pany E 146 Rutty V. B.'nthal, 36 L.J, C.P. 194 ; L.R. 2 C.P. 488, Comp. Deed 12 . Ryalls V Leader, 36 L.J. Ex. 185; 4 H. & , a 6">6 ; I .R. 1 Ex. 296, Libeli . . 384 4 y2 64 244 228 108 15 136 130 112 394 620 20 461 89 91 553 297 461 34 371 4&,i 46 . 593 1401 141 141 ■. 14fll 141 169 716 TABLE OF CASES. PA8E Byan V. Thompson, 37 L.J. C.P. 134; L.E. 3 C.P. 144, Met. Loc. Man. i . .364 Eyde, in the goods of, 37 L.J. P. & M. 49 ; L.E. 2 P. & D. 86, Probate K 7 . .483 Eyder v. Hamilton, New Sarum ease, 38 L.J. C.P. 260 ; L.E. 5 C.P. 559, Parlt. 17 • 396 — — V. Wombwell, 37 L.J. Ex. 48 ; L.E. 3 Ex. 90 ; (Ex. Ch.) 38 L.J. Ex. 8 ; L.E. 4 Ex. 32, Infant 4 (Necessaries^ . . 284 Eyland v. Delisle, 38 L.J. P.C. 67 ; L.E. 3 F.G.n, Coloniai Laws . . .99 Eylands v. Eletcher, 37 L.J. Ex. 161 ; L.E. 3 E. & I. App. 330, Negligence 11 . .383 Eyves v. Attorney General, 35 L.J. P. & M. 6; L.E. 1 P. & D. 23; (H.L.) 37 L.J. P. & M. 75, Legitimaey Declaration Act 4 . 333 632 295 159 24 34 646 . 428 . 389 '548 Sackville-West and others v. Viscount Holmes- dale, 39 L.J. Ch. 505 ; L.E. 4 E. & I. App. 643, Will, Construction Q 1 Sablieioh v. Eussell, L.E. 2 Eq. 441, Inter- pleader 4 . Sablonier Hotel Co., in re, L.E. 3 Eq. 74, Company E 102 . Sadler v. Smith, 38 L.J. Q.B, 91 ; 10 B. & S. 17 ; L.E. 4 a.B. 214; (Ex. Ch.) 39 L.J. Q.B. 17 ; 10 B. & S. 29 ; L.E. 5 Eq. Q.B. 40, Arbitration C 4 St. Aubyn v. Smart, L.E. 3 Ch. 646, Attornet/ 21 . St, Cuthbert Lead Smelting Co., 35 B. 384, Company, Addenda 19 . - St. George, Hanover Square, Union, v. Cam- bridge Union, 37 L.J. M.C. 17 ; 8 B. & S. 764 ; L.E. 3 Q.B. 1, Poor 8 St. Helen's Smelting Co. v. Tipping, 35 L.J. Q.B. 66, Nuisance 9 St. Olaf, The, 38 L.J. Adm. 41 ; L.E. 2 A. & E. 360, Shipping E 17 . St. Pancras Burial Ground, in re, 36 L.J. Ch. 52 ; L.E. 3 Eq. 173, Burial 3 St. Paul V. St. Paul and Earquhar, 38 L.J. P. & M. 57 ; L.E. 1 P. & D. 739, Divorce 44 . 231 V , 39 L.J. P. & M. 60, Div. 109 . Saffron Walden, in re the Charity of King Ed- ward Vl.'e Almshouses at, 37 L.J. Ch. 644, Pr. in Eq.EEl . Sahlgreen and Carral's ease, in re Anglo- Danish, Baltic and Steam Navigation Co., L.E. 3 Ch. 323, Company E 14 . Salisbury v. Metropolitan Eailway Co., 38 L.J. Ch. 249 ; (on App.) 39 L.J. Ch. 567, Com- pany C 72 . V , 39 L.J. Ch. 429, Injunction 47 . Saloon Steam Packet Co., in. re Eleteher's case, 37 L.J. Ch. 49, Company E 16 Salter v. Metropolitan District Eail. Co., 39 L.J. Ch. 567; L.E. 9 Eq. iZ2, Lands Clauses Act 11. Salvador, The, Eegina v. Carlin, 39 L.J. Adm. ■ 33 ; L.E. 3 P.C. 218, Foreign Enlistment 1 265 Salvin v. Weston, 35 L.J. Ch. 552, Annuity 4, 19 Samson v. Samson, and Larkins v. Samson, 39 L.J.Ch. 582, Pr. in Kq.DJ) 5 . . 457 74 237 457 123 117 291 123 310 Sampson, ex parte, in re Cobham, L.E. 1 Ch. 476, BnJccy. 30 {Adjudication) V. Mackay, 38 L.J. Q.B. 245 ; 10 B. & S. 694; L.E. 4 Q.B. 643, Costs at Law 14 . 200 V. Sampson, L.E. 8 Eq. 479, Will E 16 . 615 Samuel Laing, The, 39 L.J. Adm. 42 ; L.E. 3 A. & E. 284, Admiralty C 2 Sandeman v. Scurr, 36 L.J. Q.B. 58 ; 8 B. & S. 50 ; L.E. 2 Q.B. 86, Shipping K 8 . Sanders v. Baldy, 35 L.J. M.C. 71; L.E. 1 Q.B. 87, Game 3 . Sanders's Trusts, in re, L.E, 5 Eq. 675, Will, Con.ttruction li 25 . Sands v. Lyne, in re Lyne's Estate, L.B. 8 Eq. 482, Administration 25 Sankey Brook, Coal Co., in re, 39 L.J. Ch. 223 ; L.E. 9 Eq. 721 ; see also L.E. 10 Eq. 381, Company C 41 (Borrowing on Calls) . Sanson! v. Vestry of St. Leonardje, Shoreditch, as L.J.C.P. 286 ; L.E. 4 C.P. 654, Action 14 4 Sappho, The, L.E. 3 A. & E. 142, Ship. T 10 558 Saunders v. Melsome, L.E. 2 Eq. 573, Debtor and Creditor 1 (Specialty Debt) V. Merryweather, 35 L.J. Ex. 115; 3 H. & C. 902, Mortgage 32 . ' V. Vautier, 38 L.J. Ch. 42, Pr. in %. IL 21 . , in the goods of, 35 L.J. P. & M. 26 : L.E. 1 P. & D. 16, Will, Formalities 34 , Saunder's Estate, in re, L.E. 5 Eq. 681, Metropolis Management Act 8 Savage v. Madder, 36 L.J. Ex. 178, Gaming 2 275 V. Eobertson, L.E. 7 Eq. 176, WUIB. 11 619 , in the goods of, 39 L.J. P. & M. 25 ; L.E. 2 P. & D. 78, Probate B 32 . . 477 Savin v. Hoylake Eail. Co., 35 L.J. Ex. 52 ; 4 H. & C. 67 ; L.E. 1 Ex. 9, PI. at Law 18 422 Company A 2 (Promoters) . . 107 in re, ex parte Savin, 35 L.J. Bankr. 37 ; L.E. 1 Ch. 616, Cmnposition Deed 67. 176 Sawyer v. Goodwin,' 36 L.J. Ch. 578, Attorney 20 .... Saxby V. Manchester, Sheffield, &c., Eail. Co., 38 L.J. C.P. 153; L.E. 4 C.P. 198, Watercourse 3 . Saxby's Patent, in re, L.E. 3 P.C. 292, Patent, Prolongation, Addenda 34 . Sayer v. Hughes, 37 L.J. Ch. 401 ; L.E. 5 Eq. 376, Advancement 3 . Sayer's Trusts, in re, 36 L.J. Ch. 350 ; L.E. 6 Eq. 319, Will, Construction S 2 . Scarth v.Eutland,L.E. 1 C.P. 642, Attorney 33 Schira v. Schira and Sampajo, L.E. 1 P. & D. i66. Divorce 113 . Scholefield v. Lockwood, 38 L.J. Ch. 232; L.E. 7 Eq. 83, Attorney 48 Scljoley r. Central Eail. Co. of Venezuela, ex parte Ashley,, 39 L.J. Ch. 354; L.E. 9 Eq. 266 «., Company E ^32 Schotsmans v. Lancashire and Yorkshire Eail. Co., 35 L.J. Ch. 100 ; L.E. 1 Eq. 349 ; (on App.) 36 L.J. Ch. 361 ; L.E. 2 Ch. 332, Stoppage in Tran.jwce 115 . Steele v. Cobham, in re Johnson, L.E. 1 Ch. 325, Parties 10 (Suit in Chancery . V. Liverpool, Mayor, &c. of, 7 B. & S. 261, Lands Clauses Act 1 . v. Midland Eail. Co., L.E. 1 Ch. 275, Lands Clauses Act 9 . . . V. North Metropolitan Eail. Co., 36 L.J. Ch. 540 ; L.E. 2 Ch. 237, Injunction 1 V. Stuart, L.E. 2 Eq. 84, Partner 25 . , in the goods of, 37 L.J. P. & M. 72 n. ; L.E. 1 P. & D. 575, Will, Form. 61 Stein V. Eitherdon, 37 L.J. Ch. 369, Will, Con- struction L i, Ij 11 . . .613,614 Stella, The, 36 L.J. Adm. 13; L.E. 1 A. & E. 340, Admiralty A 23 . Stephens v. Br'omfield, The Great Pacific, 38 L.J. Adm. 45 ; L.E. 2 P.C. 516, Shipping B 9 (Bottomry Bond, Loss of Ship) Stephens' case, in re Barned's Banking Co., L.E. 3 Ch. 753, Company a 46 . Stephenson v. Biney, L.E. 2 Eq. 303, Pr. in Eq.\ 2 . , in the goods of, 36 L.J. P. & M. 20 L.ai 1 P. & D. 287, Probate BIS. Stepney Union, G-uardians of. Prosecutors, Eeginav. Whitby Union, Guardians of, 39 L.J. M.C. 97 ; L.E. 5 Q.B. 325, Poor 20 . Sterbini v. Sterbini, 39 L.J. P. & M. 82, Di- ' vorce 14 . . . . ^ . Stevens v. Copp, 38 L.J. Ex. 31 ; L.E. 4 Ex. 20, Game 1 . v. Eobertson, 37 L.J. Ch. 499, Trust C 5 Stevens' Will, in re, L.E. 6 Eq. 597, Will F 3 615 Stevenson v. Marriott, 39 L.J. Ch. 568, Ad- ministration 6 . . ' . .5 Steward v. Blakeway, L.E. 6 Eq. 479 ; (on App.) L.E. 4 Ch. 603, Partner 18 . . 408 V. Young, 39 L.J. O.P. 85; L.E. 5 C.P. 122, Slander 5 . . . .561 Stewart, in re, 37 L.J. P.C. 25 ; L.E. 2 P.C. . 88, Attorney 25 . . . .34 V. Austin, 36 L.J. Ch. 162 ; 3 L.E. 3 Eq. 299, Company E 141 , . . 141 PiQEST, 1865-70, 633 596 293 508 628 168 480 311 107 112 238 404 308 309 285 409 642 11 544 166 453 476 431 227 275 589 Stewart v. Sanderson, 39 L.J. Ch. 337 ; L.E. 10 Eq. 26, Lmaoy 37 . . . 330 V. Smith, L.E. 2 C.P. 293, Pr. at L. 16 400 Stewart, ex parte, in re Eussian Vyksounsky Ironworks Co., 35 L.J. Ch. 738 ; L.E. 1 Ch. 574, Company E 140 . . . 140 , in the goods of, 38 L.J. P. & M. 39 ; L.E. 1 P. & B. 727, Probate C 5 . .479 Stewart's Executors' case, in re Agricidturists' Cattle Insurance Co., 35 L.J. Ch. 750; L.E. 1 Ch. 511, Company's, 115 . . 130 Stinson v. Browning, 35 L.J. M.C. 152 ; H. & E. 263 ; L.E. 1 C.P. 321, Highway 16 . 280 Stockbridge Eail. Bill, ex parte, L.E. 2 Eq. 364, Parliament 2 . . . .393 Stockdale v. Nicholson, 36 L.J. Ch. 793 ; L.E. 4 Eq.,359, Will, Construction H 15 .619 Stocken's case, in re Blakeley Ordnance Co., 37 L.J. Ch. 5 ; L.E. 5 Eq. 6 ; (on App.) 37 L.J. Ch. 230 ; L.E. 3 Ch. 412, Co. E 119 . 137 Stoffell, ex parte, in re Stoffell, 37 L.J. Bankr. 4 ; L.E. 3 Ch. 240, Bankruptcy 79 52 Stokes' case, Helby's and Horsey's cases, in re Portsmouth Banking Co., L.E. 2 Eq. 167, Company's, ll8 . . . 137 Stone v. Stone, 39 L.J. Ch. 196 ; L.E. 5 Ch. 74, Trust and Trustee D 2 . .590 V. Thomas, 39 L.J. Ch. 168; L.E. 5 Ch. 219, Composition Deed 110 . . 183 Stooks V. Stocks, 35 B. 296, Legacy 10 . 327 Storey v. Ashton, 38 L.J. C.B. 223; L.E. 4 a.B. 476, Master and Servant 6 . -361 Stourtonv. BurreU, and Dickinson v. Burrell, 35L.J.Ch. 371, Champerty 2 . . 83 Stowev. Querner, 39 L.J. Ex. 60; L.E. 5 Ex. 156, Evidence 21 . . .252 Straker v. Wilson, 39 L.J. Ch. 463, Tenant forlAfe 16. . . . .579 Strand Music Hall, in re, ex parte European * and American Finance Co., 30 B. 153, Com- pany C 36 . . . . . 113 Strang, ex parte, in re Universal Banking Corporation, 39 L.J. Ch. 644 ; L.E. 5 Ch. 492, Cowjpajty E 185 . . .147 Stranks v. St. John, 36 L.J. C.P. 118 ; L.E. 2 C.P. 376, Action 3 . . .3 Stratford V. Baker, L.E. 4 Eq. 246, Practice in Equity II 19 . . . . 459 Straus V. Francis, 35 L.J. Q..B. 163 ; 7 B. & S. 366 ; L.E. 1 Q.B. 379, Counsel 1 . 206 Stray, ex parte, in re Stray, 36 L.J. Bankr. 7; L.E. 3 Ch. 374; Composition Deed 67 . 177 Street, in re, a Solicitor, 39 L.J. Ch. 495 ; " L.E. lOEq. 165, ^Worac^ 37 . . 36 Stretton v. Great Western and Brentford Eail. Co.,' L.E. 6 Ch. 761, Eailway 1-6 . 602 Strickland v. Cholmley, 39 L-J. Ch. 814, Will, Construction I 22 . . . . 623 Stringer v. English and Scottish Marine In- surance Co., 38 L.J. a.B. 321 ; L.E. 4 Q.B. 676 ; (Ex. Ch.) 39 L.J. a.B. 214 ; 10 B. & S. 770 ; L.E. 5 Q.B. 599, Marine Insurance 33 ... . 361 Stringer's case, in re Mercantile Trading Co., 38 L,J. Ch. 698 ; L.E. 4 Ch. 475, Co. C 73. 117 425 722 TABLE OF CASES. PAGE Stuai't V. Cockerell, 38 L.J. Ch. 473; L.E. 7 Eq. 363 ; (on App.) 39 L.J. Ch. 739 ; L.E. 5 Ch. 713, WUl, Construction S 3 (No. 2), 39 L.J. Ch. 127 ; L.E. 8 Eq. 607, Practice in Equity QQ 3 V. McBarnet, L.E. 1 Sc. App. 387, Scotch Law 21 . Stubley v. London and North-Western Eail. Co., 35 L.J. Ex. 34 ; 4 H. & C. 83 ; L.E. 1 Ex. 13, Eailway 49 . . ' Stubba V. Holywell Eail. Co. 36 L.J. Ex. 166 ; L.E. 2 Ex. 311, Actixm i V. Horn, H. & E. 89 ; L.E. 1 C.P. 66, Banlcrwptcy 102 . Stucley's Settlement, in re, 39 L.J. Ex. 86 ; L.E. 5 Ex. 85, Stamps i . . Suburban Hotel Co., in re, 36 L.J. Ch. 710; L.E. 2 Ch. 737, Company E 48 . Suffolk, Earl of, v. Cox, 36 L.J. Ch. 591, Army 1 Suggett's Trusts, in re, 37 L.J. Ch. 426 ; L.E. 3 Ch. 215, Baron and Feme 30 Sulliran v. Pearson, ex parte Morrison, 38 L.J. Q.B. 65 ; 9 B. & S. 960 ; L.E. 4 Q.B. 153, Attorney 46 . in re, ex -parte Sullivan, 36 L.J; Bankr. 1, Composition Seed 82 Summers v. Griffiths, 35 B. 27, Vendor and Purchaser 28 . . . Sumner, Bishop of Wirichester, v. Wis, 39 L.J. Eccl. 25 (and see Winchester, Bishop of, V. Wix, ibid. 22) ; L.E. 3 A. & E. 58, Church 28 . * . Sunderland, in the goods of, 35 L.J. P. & M. 82 ; L.E. 1 P. &i). 198, TVill, Form. 17 Siirr V. Walmesley, L.E. 2 Eq. 439, Practice in Equity V 8 . , . Surteea y. Hopkineon, 36 L.J. Ch. 305 ; L.E 4 Eq. 98, Will, Construction E 9 . Suteliffe v. Howard, 38 L.J. Ch. 472, Will I 4 620 Sutton V. Great Western Eail. Co. and Sutton v. South-Eastern Eail. Co., 35 L.J. Ex. 18 ; 3 H. & C. 800, Carrier 31 V. South-Eaatern Eail. Co., 35 L.J. Ex. 38 ; 4 H. & C. 326 ; L.E. 1 Ex. 32, Carrier 31 . Swan's ease, in re Bank of Hindustan, China, and Japan, L.E., 10 Eq. 676, Com- pany, Winding-up, Practice, Addenda 16 . Swann's case, in re Overend, Gurney & Co., L.E. 6 Eq. 344, Company 23 Swansea Canal Company v. Great Western Eail. Co., 37 L.J. Ch. 238 ; L.E. 5 Eq. 444, Bijunction 6 . Swansea Vale Eail. Co. v. Budd, 35 L.J. Ch. 631 ; L.E. 2 Eq. 274, Production 15 Sweeny v. Smith, 38 L.J. Ch. 446 ; L.E. 7 Eq. 324, Tender . . . .580 Sweetman v. Guest, 37 L.J. M.C. 69 ; L.E. 3 Q.B. 262, Jmtice of the Peace 9 . .303 Swift V. Wenman, 39' L.J. C.P. 336; L.E. 10 Eq. 16, Marriage Settlement 2 . .355 Swinford, in the goods of, 38 L.J. P. & M. 38 ; L.E. 1 P. & D. 630, Will, Form. 23 . 639 V. Keble, 35 L.J. Q.B. 185 ; 7 B. & S. 573 ; L.E. 1 Q.B. 649, Pithlic Health Act 8 . 494 635 462 633 508 65 667 164 "28 60 37 . 179 603 91 638 463 634 81 81 646 65 285 489 Sykes v. Dyson, 39 L.J. Ch. 288 ; L.E. 9 Eq. 228, Practice in Equity 00 1 . V. Sykes, 36 L.J. Ch. 938 ; L.E. 4 Eq. 200 ; (on App.) 37 L.J. Ch. 367 ; L.E. 3 Ch, 301, Legacy 24 . V. , 38 L.J. C.P. 281 ; L.H. 4, C.P. 645, Costs at Law 22 . V. , 39 L.J. C.P. 179; L.E. 5 C.P. 113, Executor 29 . * . V. and Smith, 39 L.J. P. & M. 12, Divorce 66 (Petition) Divorce 126 (Confrontation) y , 39 L.J. P. & M. 52, Divorce 105 Sylph, The, 39 L.J. Adm. 14 ; L.E. 2 A. & E. 24, Admiralty A 5 . Symes v. Hughes, 39 L.J. Ch. 304 ; L.E. 9 Eq. 476, Fraud 2 . Symon's case, in re Asiatic Banking Corpora- tion, 39 L.J. Ch. 461 ; L.E. 6 Ch. 298, Company E 70 . 461 328 200 268 233 239 237 9 268 130 T. y. D., falsely called T., 35 L. J. P. & M. 51 L.E. 1 P. & M. 127, Divorce 12 . 227 T. V. M., falsely called T., 35 L.J. P. & M. 10; L.E. 1 P. &D. 31, Divorce 9 . .227 Tait V. Lathbury, 35 B. 112; L.E. 1 Eq. m, Marriage Settlement \l . . 366 Taite's case, in re Eussian Vyksounsky Iron Works Co., 36 L.J. Ch. 476 ; L.E. 3 Eq. 195, Company J, UQ . . .141 Talargoch Lead Mining Co. v. St. Asaph Union, 37 L.J. M.C. 149 ; 9 B.' & S. 210 ; L.E. 3 Q.B. 478, Bate 36 . . . 520 Talbot T. Keay, L.E. 8 Eq. 610. Fr. in Eq.TS 452 V. Marshfield, 37 L.J. Ch. 52 ; L.E. 4 Eq. 661 ; (on App.) L.E. 3 Ch. 622, Trust A 7 . . . . .687 y. , L.E. 1 Eq. 6, Production 13 .489 Tamyaco V. Simpson, 35 L.J. C.P. 196; H. 6 E. 374 ; L.E. 1 C.P. 363, Shipping H 6. 650 Tamworth Election Petition, Hill y. Peel, 39 L.J. C.P. 89; L.E. 6 C.P. 172, Parlia- ment 14 . . . . .396 School case, ex parte Charity Commis- sioners for England and Wales, 37 L.J. Ch. 473 ; L.E. 3 Ch, 543, Charity 3 .83 Tann, in re, Tann v. Tann, Grayat y. Tann, 38 L.J. Ch. 459 : L.E. 7 Eq. 436 and L.E. 7 Eq. 434, Partition 14 . . . 405 Tanner v. European Bank, 35 L.J. Ex. 161 ; 4 H. & 0. 398 ; L.E. 1 Ex. 261, Bitcr- pleader 1 . . . . . 294 Tanner's Trusts, in re, 35 L.J. Ch. 689, Trust El ' . . . . .592 Tamer v. Walker, 35 L.J. Q.B. 179; 6 B. & S. 871; (Ex. Ch.) 36 L.J. Q.B. 112; 8 B. & S. 314, Reward . . .524 Tarsey's Trusts, in re, 35 L.J. Ch. 4,62 ; L.E. 1 Eq. 561, Legacy 12 . . . 327 Tata V. Williamson, L.E. 1 Eq. 528 ; (on App.) L.E. 2 Ch. 55, Fraud 3 . . .268 Tatton y. London and Lancashire Eire Insui'- anee Co., 38 L.J. Ch. 448; L.E. 8 Eq. 460, Practice in Equity NN 2 . .461 TABLE OF CASES. 723 Taunton .Election Petition, Waygood v. James, 38 L.J. C.P. 195; L.R. i C.P.,o61, Parliament 12 . . , ' . 395 Tavernor v. Ditchfield, 35 L.J. P. & M. 51 ; L.E. 1 P. & D. 127, mvorce 12 . .227 Tavistock Iron Works Co., in re, Lyster's ease, 36 L.J. Oil. 616; L.R. 4 Eq. 233, Compawy^ 111 . . . .136 Tayleur V. Wildin, 37 L.J. Ex. 173; L.R. 3 Ex. 303, Landlord and Tena)it 4 . . 305 Taylorv. Cass,L.R. 4 C.P. 614, County Courts 208 T. Chester, 38 L.J. Q.B. 225 ; 10 B. & S. 237 ; L.R. 4 Q.B. 309, Contract 5 . 189 , Sir Charles, v. Chichester and Midhurst Rail. Co., 4 H. & 0. 409 ; (Ex. Ch.) 36 L.J. Ex. 201; L.R. 2 Ex. 356; (H.L.) 39 L.J. Ex. 217; L.R. 4 E. & I. App. 628, Railvoay 2 . . . . . 500 T. Dowlen, 38 L.J. Ch. 680 ; L.R. 4 Ch. &^T,Fractke in Equity "E 11 . .448 r. Dunbar, 38 L.J. C.P. 178 ; L.R. 4 C.P. 206, Marine Insurance 25 . . 350 v. Great Northern Rail. Co., L.R. 1 C.P. 385; H. & R. 471, Carrier 27 . .80 V. Manners, 35 L.J. Ch. 128 ; L.R. 1 Ch. 48, Debtor and Creditor 7 . .220 V. Metropolitan Board of Works, Sfi L.J. M.O. 53 ; L.E. 2 Q.B. 213, Metro- politan Building Acts 6 . . . 365 T. Pillow, L.R. 7 Eq. 418, Copyright 18 197 V. Shafto, 8 B. & S. 318, Mines 4 . 367 v. Taylor, 39 L.J. Oh. 676; L.R. 10 Eq. 477, Executor 24 . . . 253 T and Wolters, 39 L.J. P. & M. 23, Divorce 135 . . . .240 T. Wemyss, 39 L.J. Ch. 65; L.R. 8 Eq. 512, Pleading in Equity 8 . . 424 Taylor, in re, Daubney v. Leake, 35 L.J. Ch. 347 ; 35 B. 311 ; L.E. 1 Eq. 495, Costs in Equity 12 . . . . .204 in re, ex parte Barnet, 38 L.J. Bankr. 14 ; L.R. 4 Ch. 68, Bankruptcy, Choice 0/ Assignee, Addenda 5 . . . 645 -, L.R. 4 Ch. 352, Bankruptcy, Appeal, Addenda 9 . , 615 Taylor to Bentley, Needham to Johnson, in re Bflls of Sales Act, 1866, 8 B. & S. 190, Bill of Sale 7 . ■ ■ . 70 Taylor's Charities, in re, and in re Duncan, 36 L.J. Ch. 513 ; L.R. 2 Ch. 356, Charity 2 . 83 Teague's Settlement, in re, L.R. 10 Eq. 564, Power 27 (Bemoteness) . . . 435 Tebb V. Hodge, 38 L.J. C.P. 217; (Ex. Ch.) 39 L.J. O.P. 56 ; L.R. 5 C.P. 73, Fixtures 4 264 Telegraph Construction and Maintenance Co., in re, ex parte Enberby's Trust, 39 L.J. Ch. 723 ; L.E. 10 Eq. 384, Company C 67 116 Tempest v. Camoys, 35 B. 201, Admon. 31 . 8 , in re, 35 L.J. Oh. 632 ; L.E. 1 Oh. 485, Trust F 2 . . . .593 Tennant v. Trenchard, 38 L.J. Ch. 169 ; L.R. 4 Oh. 537, Practice in Eq. B B 15 . 456 Trust D 4 . . . . S90 T. (No. 2), 38 L,J. Ch. 661, Practice in Egmty E K 4 . . . 460 Tennents v. Tonnents, L.E. 2 Sc. App. 6, Voluntary Deed 15 . . .607 Terry v. Hutchinson, 37 L.J. Ex. 257; 9 B. & S. 487 ; L.E. 3 Q.B.- 699, Seduction 533 Tetley v. Wanless, 36 "L.J. Ex. 25; 4 H. & C. 613 ; L.E. 2 Ex. 21j (Ex. Oh.) 36 L.J. Ex. 153 ; L.E. 2 Ex. 275, Composition Deed2Q . . . . .171 Thacker v. Key, L.E. 8 Eq. 408, Power 34 . 436 Thackway y. Pilcher, 36 L.J. CP. 73 ; L.R. 2 C.P. 100, Parliament 60. . . 402 Thames Iron AVorks Co. and Shipbuilding Co. V. The Queen, 10 B. & S.' 33, Arbitra- tion D J . . . . , .25 , ConsKrvators of, v. Hall, 37 L.J. C.P. 163, Shipping Q 11 . . .557 Thatcher, ex parte, in re Thatcher, 36 L.J. Bankr. 14 ; L.R. 2 Ch. 93, Composition Deed 64 . . . . .177 Thetis, The, 38 L.J. Adm. 42 ; L.R. 2 A. & E. 365, Shipping K 10 . . .552 Thew v^Wingate, 10 B. & S. 714, Inclosiire 4 281 Thexton v. Edmonston, 37 L.J. Ch. 329; L.R. 5 Eq. 373, Practice in Equity V 5 .453 Thomas v. Alsop, 39 L.J. M.O. 43; L.E. 5 Q.B. 151, Poor 1 . . . .427 T. Buxton, 38 L.J. Ch. 709 ; L.E. 8 Eq. 120, Vendor and Purchaser 19 . 601 V. , L.R. 3 Ch. 407, Pr. in Eq.IIS 458 V. Daw, 36 L.J. Oh. 201 ; L.R. 2 Oh. 1, Sewers 1 . . . . . 536 V. Hayward, 38 L.J. Ex. 175 ; L.R. 4 Ex. 311, Cuoenant 14 . . . 212 , . Nokes, L.R. 6 Eq. 521, Pr. in 'Eq. 1 451 r. Nurse, 39 L.J. P. & M. 80, County Count 18 . . . . .208 V. Rymney Rail. Co., 39 L.J. Q.B. 141 ; L.E. 5 Q.B. 226, Carrier 22 . 79 v. Welch, 35 L.J. C.P. 200 ; L.R. 1 CP. 192, Pa^OTi 11 . . .411 Thomas Lea, The, 38 L.J. Adm. 37, Admi- ralty C 15 . . . • .13 Thompson v. Dallas, 37 L.J. Q.B. 133 ; 9 B. & S. 193 ; L.R. 8 Q.B. 358, Costs at LawW 200 T. Dunn, L.R. 5 Ch. 573, Fl. in Eq. 19 426 v. Fisher, L.E. 10 Eq. 207, WillQ, 2 . 633 y. Hakewell, 35 L.J. O.P. 18, Cove- nant 18 . . . . .213 y. Hill, 39 L.J. CP. 264; L.E. 6 C.P. 564, Metropolitan Building 3 . . 365 - y. Hudson, 36 L.J. Oh. 388; L.E. 2 Ch. 255 ; (on App. H.L.) 38 L.J. Ch: 431 ; L.E. 4 E. & I. App. 1, Debtor and Creditor 5 . ■ . ■ .220 T. Knight, 36 L.J. Ex. 30 ; 4 H. & 0. 622 ; L.E. 2 Ex. 42, Co7nposiiion Deed 28 . 171 V. Lapworth, 37 L.J. C.P. 74 ; L.E. 3 CP. 149, Lease 9 . . . .324 , V. Simpson. See Thomson v. Simpson V. Thompson and Johnson, 37 L.J. P. & M. 33 ; L.E. 1 P. & D. 553, Divorce 78 235 in re, ex parte Wilmott L.R. 2 Ch. 795, - - 19 . . 181 4z2 724 TABLE Ol' CASES. PAGE Thomson y. Anderson, 39 'LJ. Ch. 468 ; L.E. 9 Jlq. 523, Arbitration A 8 . . .23 :.' V. Simpson, L.E. 9'Eq. 497 ; (on App.) 39 L.J. Ch. 857 ; B.E. 5 Ch. 659, Bill of Exchange 38 . . . .68 V. Waterlow, 37 L.J. Oh. 495 ; L.E. 6 G Eq. 36, Easement 1 . . ' . 244 Thomson, in the goods of, 35 L.J. P. & M. 17 ; L,E. 1 P. & D. 8, Pruhate H 7 .482 Thorburn v. Barnes, 36 L.J. C.P. 184; L.E. 2 C.P. 384, Arbitration A 2 . .22 Tliorild, Catherine, in the goods of, 36 L.J. ' P. & M. 119, Probate B 16 . .. 476 WiU, Formalities 48 . . . 641 Thorn v. Croft, 36 L.J. Ch. 68 ; L.E. 3 Eq. 193, Friendly Society 3 . . .271 Thornton, ex parte, in. re Barned's Banking Co., 36 L.J. Ch. 190; L.E. 3 Ch. 171, Covipany 'E 28 . . . .152 Thorp V. Browne, L.E. 2 E. & I. A^jp. 220, Judgment 4 {Eegistration) . . . 296 V. Facey, 36 L.J. C.P. 349 ; H. & E. 678, Limitations, Stat, of 3 . .336 V. Sutolifie, 39 L.J. Ch. 712, Production 8 488 Thorpe v. Holdsworth, 38 L.J. Ch. 194; L.E. 7 Eq. 139, Mortgage 22 . . 373 Threxton v. Edmonston, 37 L.J. Ch.-329; L.E. 5 Eq. 373, Pr. in Eq. Y 5 . . 453 Throckmorton v. Crowley, L.E. 3 Eq. 196, - Set-off 6 . . . . .534 Thrupp V. Goodrich,39L.J. Ch. 656, Annuity 3 18 Thurlow V. Maekeson, 38 L.J. Q.B. 57; 9 , B. & S. 975 ; L.E. 4 Q.B. 97, Mortgage 6 370 Tiarks and Penning v. Hutton, 35 L.J. Eccl. 11 ; L.E. 1 A. & E. 270, Church Bate 1 . 95 Tichborue v. Tichborne, the "Echo," article in, 39 L.J. Ch. 398, Pr. in Eq. 5 . 451 V. , in the goods of Lady Tichborne, 38 L.J. P. & M. 55 ; L.E. 1 P. & D. 730, Probate D 5 . . . .480 V. , in the goods of same, S8 L.J. P. & M. 70, Probate D 5 . . .480 , V. , in the goods of same, 39 L.J. P. & M. 22 ; L.E. 2 P. & D. 41, Probate D 6 480 Tichener, in re, 35 B. 317, Trust D 10 . 591 Tidswell t. Witsworth, 36 L.J. C.P. 103 ; L.E. 2 C.P. 326, Lease 8 . . .324 Tiel V. Barlow, in re Tiel, 3 .De G. J. & S. 426, Practice in Equity B B 10 . .456 Tillett V. Stracey, Norwich Election Petition, 39 L.J. C.P. 93 ; L.E. 5 C.P. 185, Parlia- ment 13 . . . . .396 Tilley v. Thomas, L.E. 3 Ch. 61, V. # P. 10 600 Tilston, ex parte, in re TilsLon, L.E. 2 Ch. 199, Bankruptcy 82 . . .53 Times Life Assurance and Guarantee- Co., in re, ex parte Nunneley, 39 L.J. Ch. 297 ; L.E. 9 Eq. 382; (on App.) 39 L.J. Ch. 527 ; L.E. 5 Ch. 381, Company C 89 . 120 Tin,son, in re, 39 L.J. M.C. 129 ; L.E. 5 Ex. 257, Vagabond . . .598 Tippett V. Tippett, 35 L.J. P. & M. 41; L.E. 1 P. & D. 51, Probate Mo. .486 Tipping V. St, Helen's Smelting Co., L.E. 1 Ch. 66, Injunction 21 . . . 287 PAGE Todd T. Todd, 35 L.J. P. & M. 34 ; L.E. 1 P. & D. 121, Divorce 47 , . • • 232 Todhunter, in re, ex parte Norton, 39 L.J. Bkey. 17 ; L.E. 10 Eq. 425, Bankruptcy S9 47 Toleman v. Portbury, 39 L.J. Q.B. 136; L.E. 5 a.B. 288, Covenant 24 . .214 Toler V. Slater, 37 L.J. Q.B. 33 ; L.E. 2 Q.B. 42, Lease 10 . . ■ .324 Tomlin V. Dutton, 37 L.J. Q.B. 153 ; 9 B. & S. 261 ; L.E. 3 Q.B. 466, Composition ■ Seed 59 ; . . • -176 Tomlinson v. Goatly, 35 L.J.- C.P. 183 ; L.E. 1 C.P. 230, Practice at Law 1 . 438 Tondeur, ex parte, in re Agra and Masterman's Bank, 37 L.J. Ch. 121 ; L.E. 5 Eq. 160, Company G 43 . . . . 165 Toomb's case, 35 B. 618, Company 'E 78 . 13^1 Toomer v. Eeeves, 37 L.J. M.C. 49 ; L.E. 3 C.P. 62, Turnpi/ce 4 . . .595 Tooth V. Hallett, 38 L.J. Ch. 396 ; L.E. 4 Ch. 242, Contract 11 . . . 190 Topham v. Duke of Portland. 38 L.J. Ch. 513; (App. P.C.) 39 L.J. Ch. 259; L.E. 6 Ch. 40, Power 21 . , . 434 Topper V. Topper, 38 L.J. P. & M. 36, Divorce 122 , . . .238 Torrington, Lord, v. Lowe, 38 L.J. C.P. 121 ; L.E. 4 C.P. 26, Stock Exchange 15 . 875 Tothill's case, in re Llanharry Hematite Iron Ore Co., 35 L.J. Oh. 120 ; L.E. 1 Ch. 85, Company Ell. . . .123 Totterdell v. Fareham Blue Brick and Tile Co., 35 L.J. C.P. 278 ; L.E. 1 C.P. 674, Company 7. . ■ . 108 Townend v. Toker, 36 L.J. Ch. 608 ; L.E. 1 Ch. 446, Vol. Settlement 6 . .606 Townley t. Oliver, ex parte, in re Estates In- vestment Co., L.E. 8 Eq. 227, Cmnpany F 46 1 53 Townsend, ex parte, in re Penton's Trust Deed, 35 L.J. Bankr. 17 ; L.E. i Oh. 158, Composition Deed 91 . . .181 Trappes v. Meredith, 39 L.J. Ch. 366 ; L.E. 9 Eq. 229, Forfeiture 10 , . . 267 (No. 2), 39 L.J. Oh. 727; L.E. 10 Eq. 604, Forfeiture 11 . . . .267 Treadwin v. Great Eastern Eail. Co., 37 L.J. C.P. 83 ; L.E. 3 C.P. 308, Carrier 14 . 77 Trench v. Semple, 35 B. 376 Trenfield v. Lowe. 38 L.J. C.P. 191 ; L.E. 4 C.P. 454, Parliament 27 .■ . 398 Trent and Humber Ship Building Co., in re Bailey and Leatham's case, 38 L.J. Ch. 485; L.E. 8 Eq. 94, Company F 92 . 158 , ex parte Cambi:ian Steam Packet Co., 37 L.J. Ch. 686 ; L.E. 6 Eq. 396 ; (on App.) 38 L.J. Ch. 38; L.E. 4 Ch. 112, Company Or 20 . . . .162 Tresider, in re, ex parte Somerville, 35 L.J.- Bankr. 1 ; L.E. 1 Oh. 21, Comp. Deed 21 . 170 Composition Deed 81 . . .179 Trevilian v. Knight, L.E. 1 30, Trust E 14 . 593 Trick's Trusts, in re, ex parte WiUoby, 39 ■ L.J. Ch. 201 ;-L.E. 5 Ch. 170, Trust E 5 . 592 Triclcett v. Green, 35 L.J. C.P. 69; H. & E. 63, Arbitration B 1 . . .23 TABLE OF CASES. 725 PAGE Triggs v. Lester, L.R. 1 Q.B. 269, UarM 5 354 Trimingham v. Maud, 38 L.J. Oh. 207; L.R. 7 Eq. 201, BW, of Exchange 39 . 68 Trinder v. Trinder, L.E. 1 Eq. 695, Legacy 8 326 Tripp, ex parte, in re Tripp, 35 L.J. Bankr. 5, Bankm/ptcy 104 . . . .55 Trittin, in re, and in re Bahia and San Fran- cisco Eail. Co., and in re Eeife, &o. Rail. Co., 87 L.J. as. 176; 9 B. & S. 844; L.R. 3 Q,B. 684, Company E 104 . . 134 Trotman's Patent, in re, L.R. 1 P.O. 118, i Patent 39 . . . . .416 Trotter v. TreTor, 38 L.J. O.P. 51 ; L.R. 4 C.P. 502, Parliament 38 . . . 399 V. Watson, 38 L.J. C.P. 100; L.E. 4 C.P. 434, Parliatnent 30 . . . 398 Troubadour, The, L.R. 1 A. & E. 302, Adim- rcUty B 2 {Pleading) . . .11 Troup V. Troup, 37 L.J. Oh. 390, Practice in Equity 11 18 . . . . 459 Ti'outbeck v. Boughey, 85 L.J. Ch. 840; L.R. 2 Eq. 53, Will, Construction 111 .622 Trowsdale, in re, and in re North British Rail. Co., in the matter of an arbitration between, 35 L.J. O.P. 262 ; L.R. 1 C.P. 401, Arbitra- tion P 8 . . . . .26 Trowsdale and Wansbeck Eail. Co., in the arbitrations between, L.R. 1 C.P. 269, Arbi- ' tration A 4 . . . . .23 True Blue, The, L.R. 1 P.O. 250, Admiralty C4 12 Truro, Lady, in the goods of, 35 L.J. P. & M. 89 ; L.R. 1 P. & D. 201, Will, Form. 15 637 Tubb V. Good, 39 L.J. ]\t.C. 135; L.R. 6 Q.B. 443, Metropolitan Building 8 . 365 Turner v. Burkinshaw, L.R. 2 Oh. 488, Prin- cipal and Agent 10 , . . ■ 466 V. Cameron, 39 L.J. Q.B. 125; 9 B. & S. 931 ; L.R. 5 Q.B. 306, Fixtures 1 .264 V. Marriott, L.E. 3 Eq. 744, Sp. Per/. 31 . . . . . .566 V. Eingwood Highway Board, L.R. 9 Eq. 418, Highway 18 . . . . 280 Turner, in the goods of, 36 L.J. P. & M. 82, Probate HI . . . .481 Tulk V. Metropolitan Board of Works, 37 L.J. Q.B. 11 ; L.R. 3 Q.B. 94; 8 B. & S. 777 ; (Ex. Oh.) 37 L.J. Q.B. 272 ; 8 B. & b. 813; L.E. 3 Q.B. 682, Metropolis Local Manageinent 1 . . .363 Tullock V. Tullock, L.E. 3 Eq. 574, Practice in Equity KK 1 . . . .459 Tunney v. Midlard Eail. Co., L.E. 1 C.P. 291, Master and Servant 11 . * . 361 Turnbull v. Garden, 38 L.J. Oh. 331, Prin- cipal and Agent & .... 465 Turnley and Oliver, ex parte, in re Estates Investment Co., L.R. 8 Eq. 227, Company E46 . . . • -153 Turnley's Trusts, in re, 35 L.J. Ch. 313, L.R. 1 Oh. 152, Trust E 7 . . -592 Turnock v. Tumock, 36 L.J. P. & M, 85, ^ Parent and. Child, 4 . . ■ 392 Turquand v. Kirby, 36 L.J. Ch. 570 ; L.E. i 'E^. 123, Company Ti 81 . . .157 Turquand V.Marshall, 37 L.J, Oh. 582 ; L.R. 6 Eq. 112 (App.) 38 L.J. Oh. 639 ; L.R. 4 Oh. 376, Company C 21 . . .110 V. Rhodes, 37 L.J. Ch. 830, Specific Performance 14 . . . . 665 Specific Performance 30 . . .566 Tweed v. Mms,'L.R. 1 O.P. 39, Contract Ad- denda 21 . . . . .647 Tyne Improvement Commissioners v. General Steam Navigation Co., 36 L.J. Q.B. 22 ; 8 B. & S. 66 ; L.R. 2 Q.B. 65, Shipping Ql . . . . .555 v., falsely called J., v. J., 37 L.J. P. & M. 7 ; L.E. 1 P. & D. 460, Divorce 8 . .227 Udny V. Udny, L.R. 1 So. App. 441, Domicil 4 243 Uhla, The, 37 L.J. Adm. 16 »., Admiralty A" 21 .11 Umbers v. Jaggard, L.R. 9 Eq. 200, Will R 5 633 Underwood v. Secretary of State for India, 35 L.J. Ch. 545, Production 31 . . 490 Union Cement and Brick Co, in re, ex parte Pulbrook, L.E. 4Ch. 627, Company F 94 . 159 Union M.-irine Insurance Co. v. Martin, 35 L.J. O.P. 181, Marine Lis. 19 . . 349 United English and Scotch Insurance Co., in re, ex parte Hawkins, L.R. 5 Eq. 300 ; (on App.) 37 L.J. Oh. 632 ; L.R. 3 Ch. 787, Company F 49 . . . .154 United Ports and General Insurance Co. v. Hill, 39 L.J. Q.B. 227; L.R. 5 Q.B. 395, Company F 96 . . . .159 , in re, 39 L.J. Ch. 146, Company F 27 . 152 United Service Co., in re, Hall's case, L.R. 7Eq. 76 ; (on App.) 39 L.J. Ch. 730 ; L.R. 5 Ch. 707, Company E 9 . . . 1_22 United States of America v. McRae, 36 L.J. Oh. 722 ; L.E. 4 Eq. 327 ; (on App.) 37 L.J. ' Ch. 129 ; L.E. 3 Ch. 79 Pleading in Equity 9 425 V (No. 2), 38 L.J. Oh. 406 ; L.E. 8 Eq. 69, International Law 1 . . 294 V. Prioleau, 35 L.J. Oh. 7, International Law 1 . . . J . .294 V. Prioleau and Andrew Johnson, and Prioleau v. United States of America, 36 L.J. Ch. 36 ; L.E. 2 Eq. 659, Partks S . 403 V. Wagner, L.E. 3 Eq. 724 ; (on App.) 36 L.J. Ch. 624 ; L.R. 2 Ch. 582, PSrties 4 403 Universal Bank, in re, L.E. 1 Oh. 428, Com- pany F 87 . ■ ■ • , • .158 Universal Banking Corporation, in re, Gunn's case, 36 L.J. Ch. 800 ; (on App. 37) L.J. ' Ch. 40 ; L.R. 3 Ch. 40, Company E 15 . 123 , in re, Roger's and Harrison's cases, L.E. 3 Ch. 633, CoOTpawy E 169 . '.145 , in re, ex parte Strang, 39 L.J. Oh. 644 ; L.E. 6 Ch. 492, Company E185 . . 147 Universal Life Assurance Co. , ox parte, in re Northern Assam Tea Co., 39 L.J. Oh. 829 ; L.R. 10 Eq. 458, Company G 32 . .164 Set-offd 535 Unwin v. Clarke, 35 L.J. M.O. 193; 7 B. & S. 400 ; L.R. 1 Q.B. 417, Master and Ser- vant 5 . • . . . 361 726 tabCe of cases. Upfil, ox parte, in re XJpfil, L.E. 1 Ch. 439, BankrnpUy 29 . . Uppertou V. Nicholson, 39 L.J. Ch. 758 L.E. 10 Eq. 228, Specific Perf. 34 . Urriiela, De Angulo y, in the goods of, 38 L.J, P. & M. 21 ; L.E. 1 P. & J).. 598, Pro- bate K 1 . Usticke, in re, 35 B. 338, Will M 17 . 46 667 483 630 Vftu Breda t. Silberbauer, 39 L.J.,P.C. 8 L.E. 3 P.O. 84, Colonial Law 1 6 , Vandenbergh t. Spooner, 35 L.J. Ex. 201 : 4H. & C. 519; L.E. 1 Ex. 316, Frauds. Stat. ofn. Vanderbyl v. McKenna, L.E. 3 C.P. 252, Ar- bitration A 7 Valentin v. Hall, 35 L.J. Q.B. 121, Practiocat Law 29 . Valieri v. Boyland, 35 L.J. C.P. 215 ; L.E. 1 C.C.E. 382, Shipping A 15 Van Wart, iti re, ex parte National Bank of England, L.E. 4 Ch. 63, Composition Deed 62 Vane, Earl of, v. Eigden. 39 L.J. Ch. 143 ; (on App.) ibid. 797 ; L.E. Ch. 663, Executor 11 . -A'anner v. Frost, 39 L.J. Ch. 626, Account 4 Vaughan v. Moffat, 38 L.J. Ch. 144, Factor 3 , ex parte, 36 L.J. M.C. 17; L.E. 2 Q.B. 114, Justice of the Peage 10 . Veal V. Veal, 36 L.J. Ch. 8] 6 ; L.E. 4 Eq. 115, Practice in Egwity DD 4 Velasquez, The Owners of, v. Briggs and Owners of The Star of Ceylon, 36 L.J. Adm. 18 ; L.E. 1 P.O. 494, Shipping Q 10 Veley v. Pertwee, 39 L.J. Q.B. 196 ; L.E. 5 Q,.B. 573, Church 12 Velocity, The, General Steam Navigation Co. V. Hedley, 39 L.J. Adm. 20 ; L.E. 3 P.C. 44, Shipping E 8 . . . ' . Veness, ex parte, in re Gwynn, 39 L.J. Bankr. L.E. 10 Eq. 419, Bankruptcy 38 . Venezuela, Central Bail. Co. of, v. Kiscb, 36 L.J. Ch. 849 ; L.E. 2 E. &I. App. 99, Com- pany 'K\2%. Venner's Settled Estates, in re, L.E. 6 Eq, 249, Ssttlcd Estates Act 11 . Venus, Cargo ex, L.E. 1 A. & E. 80, Admiralty C 18 {Salvage) .... Veret v. Duprez, 37 -L.J. Ch. 552 ; L.E. 6 Eq. 329, Practice in Eq. HH 1 . Vibart v. Vibart, L.E. 6 Eq. 251, Pr. in Eq. 1 1 20 . Vickers v, Viekers, 36 L.J. Ch. 946 ; L.E. 4 Eq. 529, Specific Performance 10 . Viekery and Wife, v. London, Brighton and Sonth Coast Bail.' Co. 39 L.J. C.P, 169; L.E. 5 C.P. 165, Costs at Law 23 . Victoria, The, 37 L.J. Adm. 12. Adm. A 12 . Victoria Permanent Building, Investment and Freehold Land Society, in re Empson's case, L.E. 9 Eq. 597, Estoppel 1 . — , — Hill's case, and Jones's case, 39 L.J. Ch, 628 ; L.E. 9 Eq, 605, Friendly Society 2 271 100 270 23 441 513 176 256 . 2 259 303 457 557 547 47 . 139 536 13 457 459 664 201 10 249 Villeboisnet v. Tobin, 38 L.J. C.P. 146; L.E. 4 C.P. 184, Practice at Law 25 . 441 Vincent's Patent, in re, L.E. 2 Ch. 341, Patent . 16 {Sealing) . . . .412 Vines V. London, Brighton and South Coast Eail. Co. 39 L.J. Ex. 175; L.E. 6 Ex. 201, Costs at Law 24 . . . 201 Vinning, in re, ex parte Hoomaii, 39 L.J. Banliir. 4 ; L.E. 10 Eq. 63, Bill of Sale 2 69 Vivian and others v. Mersey Docks and Har- bour Board, 39 L.J. C.P. 3 ; L.E. 6 C.P. 19, Statute 4 . . . . 570 V. Vivian and the Marquis of Waterford, 39 L.J. P. & M. 54 ; L.E. 2 P. & D. 100, Divorce 166 {Costs) . . .242 Vivian v. Jegon, 37 L.J. C.P. 313; L.E. 3 E. & I. App. 285, Power 41 {Leasing) . 437 Vizard's Trusts, in re, 35 L.J. Ch. 460; L.E. 1 Ch. 666 ; (on App.) 35 L.J.- Ch. 804 ; L.E. 1 Ch. 5S8,-Power 35 . . 436 Waddingtou v. Eoberts, 37 L.J. Q.B. 253 9 B. & S. 697 ; L.E. 3 Q.B. 679, Co?np. Deed 11 . Comp. Deed 63 . . , Wagstaffe v. Wagstaffe, 38 L.J. Ch. 528 L.E. 8 Eq. 229, Will, Consir. E 2 . Waite V. Garston Local Board of Health, 37 L.J. M.C. 19 ; L.E. 3 Q.B. 6, Public Hudth Act 16 . Wakefield Local Board of Health v. West Eidiug and Grimbsy Eail. Co., 35 L.J. M.C. 69; 6 B. & ,S. 794; L.E. 1 Q.B. 84, Justice of the Peace 2 . Wakefield v. Duke of Buccleugh, 36 L.J. Ch. 179 and 763 ; L.E. 4 Eq. 613 ; (H.L. on App.) 39 L.J. Ch. 441 ; L. E. 4 E. & I. App. 377, Liclosure 3 . . . Wakeham v. Merrick, 37L. J. Ch. 46, Annuity 1 Waldon v. Thompson, 37 L.J. Ch. 751 ; L.E. 6 Eq. V, Practice in Eq.F . Practice in Equity 6 4. Walesby v. Goulston, 35 L.J. C.P. 302 ; H. & E. 623 ; L.E. 1 C.P. 567, Costs at Law 2 Walford v. Walfoi-d, L.E. 3 Ch. 812, Pr. in Eq.-PF2 . " . . ■ . Walker v. Brewster, 37 L.J. Ch. 33 ; L.E. 5 Eq. 25, Nuisance 18 V. Corey, 38 L.J. Ex. 123 ; L.E. 4 Ex. 152, Practice at Law, 45 . V. Great Western Eail. Co. 36 L.J. Ex. 123 ; L.E. 2 Ex. 228, Bailway 69 . V. Jones, 36 L.J. P.C. 30 ; L.E. 1 P.C. 50, Mortgage 12 . V. London, Mayor, &c., of, 38 L.J. M.C. 107, Jurisdiction at Law 2 . V. South-Eastern Eail. Co., 39 L.J. C.P. 346 ; L,E. 6 C.P. 640, Malicious Pro- secution 2 , Bailway 72 . V. Walker, L.E. 9 Eq. 663, Pr. in Eq. II. 13 v.Ware,Hadham and Buntingford Eail. Co., 35 L.J. Ch. 94 ; 36 B. 62 ; L.E. 1 Eq. 195, Railway 22 . . , 169 176 . 613 496 302 281 18 41ft 450 198 . 461 . 287 443 511 371 298 343 612 459 603 TABLE OP CASES. 727 Walker's case, in re O^'erend, Gurney & Co., 35 LJ. Ch. 826; L.E. 2 Eq. 654, Com- pany :& 88. . . , .132 Walker, ex parte, in re Graves, 39 L.J. Q.B. 31 ; 10 B. & S. 680, Copyright 4 . ,195 , in re Anglo-Danubian StOiim Naviga- tion and Colliery Co., 37 L.J. Ch. 651 ; L.E. 6 Eq. 30, Company E 94 . ■. 133 AValkerfield and Hilton, Overseers of, v. Bowes, Overseers of, 35 L.J. M.C. 137; 7B. &S. 223,fl«fel6 . . .516 Wall V. Eogers and Wall v. Ogle, 39 L.J. Ch. 204 and ibid. 381 ; L.E. 9 Eq. 58, Compromise 3, 4 . . . .185 Wallace v. Attorney General, Jeves v. Shad- weU, 35 L.J. Ch. 124 ; 35 B. 21 ; L.E. 1 Ch. i, Legacy Duty i . . .331 V. Judges of Supreme Court, Nova Scotia, 36 L.J. P.O. 9 ; L.E. 1 P.C. 283, Colonial Law 32 . . . . . .103 V. McSweeny, 37 L.J. P.C. 39; L.E. 2 P.C. 180, PHvy Council 14 . . 472 Wallinger v. Wallinger, L.E. 9 Eq. 301, Power 19 . . . . . 434 Wallis V. Birks, 39 L.J. C.P. 106; L.E. 5 C.P. 222, Parliament 26 . . . 398 V. London and South- Western Eail. Co., 39 L.J. Ex. 57 ; L.E. 6 Ex. 62, C((rrier 28 . 80 Wabnesley v. Pilkington, 35 B. -362. Lease 5 . 323 Walpole V. Apthorp, L.E. 4 Eq.- 37, Legacy 20 328 Walsh V. Trimmer, 36 L.J. Q.B. 318; L.E. 2 E. & I. App. 208, Tithes 2 (Hopground) . 682 Walters v. Webh, C.J. 39 L.J. Ch. 414; L.E. 9 Eq. 83 ; (on App.) ibid. 077 ; L.E. 5 Ch. 531, Limitations, Stat, of 1 . . 336 Walthew v. Marrojani, 39 L.J. Ex. 81 ; L.E. 'Esi. 116, Shipping 1 S . . .650 Walton V. London, Brighton and South Coast Eail. Co., H. & E. 424, Negligence 30 . 386 Wandsworth Board of Works v. Hall, 38 L.J. M.C. 69; L.E. 4 C.P. 84, Metropolitan Building 5 . . . . . 365 AVarisbeck Eail. Co. and Trowsdale's Arbitra- tion, ill re, L.E. 1 C.P. 269, Arbitration A 4 23 AVarburton v. Great Western Eail. Co., 36 L.J. Ex. 9; 4 H. & C. 696; L.E. 2 Ex. 30, Master ^ Servant 12 . . . 362 Ward V. Carttar, 35 B. 171 ; L.E, 1 Eq. 29, Mortgage i. .... 370 V. Oakley, 36 B. 27, Mortgage 23 . 373 , ex parte, in re North Staffordshire Steel Iron and Coal Co., Burslem, 37 L.J. Ex. 83 ; L.E. 3 Ex. 172, Company E 191 . 148 Ward's ease, in re British and American Steam Navigation Co., L.E. 10 Eq. 569, Company, Addenda 14. ... . 646 Ward and Garfitt's case, in re Overcnd, Gur- ney & Co., 36 L.J. Ch. 416; L.E. 4 Eq. 189, Company E 80 . . ■ . 131 Ward and Henry's case, in re London, Ham- burgh and Continental Exchange Bank, 35 L.J. Ch. 652; L.E. 2 Eq. 226; (on App.) 36 L.J. Ch. 462; L.E. 2 Ch. 431, Company E 72 . . . .130 Company 'Ei 81 , . . . 131 Warde v. Plumbe, 39 L.J. Ex. Ill, Will N 5 . 632 Ware v. Gardner, 38 L.J. Ch. 348 ; L.E. 7 Eq, 317, Voluntary Settlement 4 . .606 Waring, ex parte, ia re Agra and Masterman's Bank, 36 L.J. Ch. 161, Banking 13 . 42 " Warner's case, in re International Life Assur- ance Co., 39 L.J. Ch. 737, Company G 53 . 167 Warner and Powell's Arbitration, in re, L.E. 3 Eq. 261, Arbitration D 12 . .26 Warrant Eiuance Co. case, in re Humber Iron- works and Ship Building Co., 38 L.J. Ch. 712 ; L.E. 4 Ch. 643, Company Gil .161 , (No. 2), in re Humber Ironworks, &c. Co., 39 L.J. Ch. 185; L.E. 5 Ch. 88, Company a 15 . . . .161 Practice in Equity E 1 7 . . .449 in re Joint-Stock Discount Corporation, and in re Contract Corporation, 38 L.J. Ch. 665; (L.J.G.) 39 L.J. Ch. 122; L.E. 5 Gh.. 86, Company Qc U . . .161 (2), in re Joint-Stock Discount Co., 39 L.J. Ch. 417; L.E. 10 Eq. 11, Comp. 6 14 161 Warren, Anne, in the goods of, 37 L.J. P. & M. 12 ; L.E. 1 P. & D. 538, Probate B 24 . J 77 Warren, in re, ex parte Evans, 36 L.J. Bankr. 15, Bankruptcy 3 . . . .42 Warren's Blacking Co., in re, Pentelow's case, 39 L.J. Ch. 8 ; L.E. 4 Ch. 178, Company E 24 (AUutmcnt) . . . .124 Warwick v. Queen's College, Oxford, 36 L.J. Ch. 505; L.E. 3 Eq. 683; (on App.) 37 L.J. Ch. 697 ; L.E. 3 Cli, 815, Production in Equity 32 ... . 491 Practice in Equity C 4 . . . 446 V (No. 2), 39 L.J. Ch. 636 ; L.E. 10 Eq. 105, Common 3 . . .105 Warwick and Worcester Eail. Co., ex parte Weiss, 35 L.J. Ch. 149, Company F 47 . 154 Washoe Mining Coiupany v. Ferguson, L.E. 2 Eq. 371, Practice in Equity L L 1, 2 .460 Wason V. Walter, 38 L.J. Q.B. 34 ; 8 B. & S. 671 ; L.E. 4 G.B. 73, Libel 3 . . 334 ex parte, 38 L.J. Q.B. 302 ; 10 B. & S. 580 ; L.E. 4 Q.B. 573, Jiistice of tlie Peace 14 304 Parliament 1 {Privilege) . . . 393 Wasp, The, L.E. 1 A. & E. 367, Mm. B 7 . 12 Waterhouse v. Jamieson, L.E. 2 Sc. & D. App. ^29, CompajiyE 136. . . .140 Waterlow v. Bacon, 35 L.J. Ch. 643 ; L.E. 2 Eq. 514, Injunction i . . . 285 V. Sharp, Gardner v. Sharp, L.E. 8 Eq. 601, Banking 2 . . . .40 Waters v. Earl of Shaftesbury, L.E. 2 Ch. 2^1, Principal^ Agent li . . . 467 V. Waters, 36 L.J. Ch. 195, Vendor §• Purchaser 16 . . . .601 Waterton v. Burt, 39 LtJ. Ch. 425, Practice in Equity L 2 . . . . 450 V. Baker, in re Field, 37 L.J. Q.B. 65 ; 9 B. & S. 23 ; L.E, 3 Q.B, 173, County Court 34 . . . . .210 Watford and Eickmansworth Eail. Co. v. Lon- don and North-Western Eail. Co., 38 L.J. Ch. 449; L,E. 8 Eq. 231, Railway 20 , 503 728 TABLE OF CASES. FAOB Watkin V. Hall, 37 L.J. Q.B. 125 ; 9 B. & S. 279 ; L.R. 3 Q.B. 396, Slander 1 . .560 Watkinson V. Overseers of Milton-next-Graves- end, 37 L.J. M.O. 73 ; L,R. 3 a.B. 350, Addenda 41. ... . 649 Watkins, Elizabeth, in the goods of, 36 L.J. P. & M. 14; L.R. 1 P. & D. 19, Will, Formalities 13 . . . .637 Watmough's Trusts, in re, 38 L.J. Ch. 723 ; L.E. 8 Eq. 272, Mortmain 10 . . 377 Watney v. Wells, 36 L.J. Ch. 861 ; L.R. 2 Ch. 250, Partnership 8 . . , . 407 ' in re, 38 L.J. Ch. 57, Land Eegistry Act 2 . . . . .308 Watson v. Attorney General and Cowen, 85 L.J. P. & M. 7 ; L.R. 1 P. & D. 27, Le- gitimacy Declaration Act 6 . . .333 Watson and Ovorend, ex parte, 35 L.J. Bankr. 41, Composition Deed 117 . . . 184 Watson T. Mid- Wales Rail. Co., 36 L.J. C.P. 285; L.R. 2 C.P. 593, Set-off Z . . 534 Watson's Trusts, in re, 39 L.J. Ch. 770 ; L.R. 10 Eq. 36, Will, Construction L 10. . 626 Watton V. Watton and Oastler, Dow v. Dow, and Davies v. Davies, 35 L.J. P. & M. 95 ; L.E. 1 P. & D. 221, Divorce 132 . . 239 Watts T. Justices of Kent, 35 L.J. M.C. 190, Friendly Society II . • . . , 273 Waygood v. James, Taunton Election Peti- tion, 38-L.J. C.P. 195 ; L.R. 4 C.P. 361, Parliament 12 . . . . 39,5 Weal V. Brown, 4 H. & C. 705, Excise 1 , . 255 Weardalo District Highway Board v. Bain- bridge and The Alton Turnpike Trustees, 35 L.J. M.O. 173; L.R. 1 Q.B. 396; 7 B. & S. 504, Turnpike 10 . . . 596 Weaver, in the goods of, 36 L.J. P, & M. 41, Probate B 37 . . , ' .478 Webb V. Heme Bay Commissioners, 39 L.J. Q.B. 221 ; L.R. 5 Q.B. 642, Estoppel 2 . 248 V. Hughes, 39 L.J. Ch. 606; L.R. 10 Eq. 281, Vendor ^ Purchaser 13 . . 600 V. Rennie, 4 F. & E. 609, Negligence 19. 384 Webb's Policy, in re, 36 L.J. Ch. 341, Banlc- ruptcy 67 . . . . .51 , in re, 35 L.J. Ch. 850; L.R. 2 Eq. 456, Trust E 6 . . . . .592 Webber, in re, Williams v. Sidmouth Rail, and Harbour Co., 36 L.J. Ex. 184; L.R. 2 Ex. 284, Bailway 38 . . . 606 V. Great Western Rail. Co., 3 H. & C. 791 ; Ex. Ch. 4 H. & C. 582, Carner 21 . 79 Webster v. Cook, 36 L.J. Ch. 753 ; L.R. 2 Ch. 642, Eeversion 3 , . . 524 ' . V. Manby, L.R. 4 Ch. 372, Costs in Equity 40 . . ' . , . 206 V. Power, 37 L.J. P.Q. 9 ; L.R. 2 P.O. 69, Colonial Law 31 . . .103 V. , L.R. 1 P.O. 150, Priv. Council 1 471 Webster, in re, ex parte Pilkington, L.R. 3 Ch. 404, Composition Deed 92 . . .181 Webster, ex parte, in re Wickham, L.R. 2 Ch. 556, Bankruptcy 2 . . . .42 Webster's case, in reVyksounsky's Ironworks Co., L.R. 2 Eq. 741, Company E 146 . 141 FAaB Weeds v. Bristow, 35 L.J. Ch. 839 ; L.R. 2 Eq.,333, WiU, Construction's. 13 Weeks v. Wray, 37 L.J. Q.B. 84 ; 9 B.-& S. 62 ; L.R. 3 Q.B. 212, Pr. at Law 2 Weiss, ex parte, in re Warwick and Worcester Rail. Co., 35 L.J. Ch. 149, Company F 47 , Welfare v. London and Brighton Rail. Co., 38 L.J. Q.B. 241 ; L.R. 4 Q.B. 693, Carrier 5 . Weller v. Ker, L.R. 1 Sc.App. 11, Trust A6. Well's Estate, in re, 37 L.J. Ch. 553 ; L.R. 6 Eq. 699, Will, Construction H 9 . Wentworth v. Lloyd, 35 L.J. Ch. 642 ; L.R. 2 Eq. 607, ^Costs in Equity 25 West V. Dobb, 38 L.J. Q.B. 289 ; 9 B. & S. 755 ; L.R. 4 Q.B. 634 ; (Ex. Ch.) 39 L.J. Q.B. 190 ; 10 B. & S. 987 ; L.R. 5 Q.B. 460, Covenant 23 . V. London and North-Western Rail. Co., '39 L.J. C.P. 282 ; L.R. 5 C.P. 622, Carrier 32 ( Unequal Charges) V. Millar, 37 L.J. Ch. 423 ; L.R. 6 Eq. 59, Will, Construction L 6 . V. Viscount Holmesdale, 39 L.J. Ch. 505 ; L.R. 4 E. & I. App. 543, Marriage Settlement 13 Will, Construction Q 1 (2) West of England, The, 36 L.J. Adm. 4; L.R. 1 A. & E. 308, Admiralty, Addenda 1 West Hartlepool Harbour and Rail. Co. v. Jackson, 36 L.J. Ch. 189, Bailway 57 West London Extension Rail. Co. v. Fulham UnionAssessment Committee, 39 L.J. Q.B. 178 ; L.R^ 5 Q.B. 361, Arbitration C 1 West Surrey Tanning Co., in re, L.R. 2 Eq. 737, Company PS. AVestern v. McDermot, 35 L.J. Ch. 190 ; 35 B. 243 ; L.R. 1 Eq. 499 ; (on App.) 36 L.J. Ch. 76 ; L.R. 2 Ch. 72, Covenant 10 Western Bank of Scotland v. Adie, L.R. 1 Sc. App. 145, Scotch Law 3 V. Baird, L.R. 1 Sc. App. 170, Scotch Law 6 .... . Willett, 39 L.J. Ch. 662 ; L.R. 5 Ch. 396, Company F 72 . Western Ocean, The, L.R. 3 A. & E. 38, Ship- ping, Addenda 47 . . . . '650 Westland's case, in re Barned's Banking Co., 37, Costs in Equity 2 Westmacott v. Robins, 4 De G. F. & J. 390, Vendor and Purchaser 22 . Westminster Brymbo Coal and Coke Co. v. Clayton, 36 L.J. Ch. 476, Mines 10 Weston V. Empire Assurance Corporation, L.R. 6 Eq. 23, Pr. in Eq.V in the goods of, 38 L.J. P. & M. 53 ; L.R. 1 P. & D. 633, Will, Form. 55 Weston's case, in re Contract Corporation, 37 L.J. Ch. 617; L.R, 6 Eq. 17, Comp. E 43 . 127 in re Cobre Copper Mining Co., 39 L.J. Oh. 753; L.R. 5 Ch. 614, Company 'R 77 in re Smith, Knight & Co., 37 L.J. Ch. 569 ; L.R. 6 Eq. 238 ; L.JJ. 38 L.J. Ch. 49 ; L.R. 4 Ch. 20, Company 9 . Wetheraeldv. Nelson, 38 L.J. C.P. 220; L.R. 4 C,P. 671, County Court I . .206 619 438 154 76 686 . 618 205 214 81 625 356 632 . 645 510 24 . 149 212 531 532 156 203 . 602 368 453 642 131 108 TABLE OP CASES. r29 "Wettor V. Dunk, 4 F. & F, 298, Negligence 15 383 Wey and Aran Junction Canal Co., in v% 36 L.J. Ch. 509; L.R. 4 Eq. 197, Company's ZQ 152 Whatman v. Pearson, 37 L.J. C.T. 156 ; L.R. 3 C.P. 422, Master and Servant 7 . Wteale v. Brown, 4 H. c& C. 704, Revenue 2 . Wheatly r. Westminster Brymbo Coal and Coke Co., 39 L.J. Ch. 176; L.E. 9 Eq! 538, Mines 5 . . . . Wheeler v. Metropolitan Board of Works, 38 L.J. Ex. 165 ; L.R. 4 'Ex. 303, Bate 4 V. Tootell, 36 L.J. Ch. 221 ; L.R. 3 Eq. 571, Apportionment 5 . . . Wheeler and Wilson Mamifacturing Co. v. Shakespeare, 39 L.J. Ch. 36, Trade-Mark 7 683 Wheeler, in re, 4 De G. F. & J. 5i0, Lunatic S 342 Whieldon t. M'Carogher and M'Carogher v. Whieldon, 36 L.J. Ch. 196, Marriage Set- tlement 26 . White, in re, L.R.' 5 Ch. 698, Trust F 9 T. Birch, 36 L.J. Ch. 174, Will E 14 . V. British, Empire Mutual Life Assur- ance Co., 38 L.J. Ch. 53 ; L.R. 7 Eq. 394, Insurance 4 . . . T. Duke of Bucoleuch, L.R. 1 Sc. App, 70, Practice at Law 54 T. Chitty, 35 L.J. Ch. 343 ; L.R. 1 Eq, 372, Forfeiture 7 . T. Herriek, 38 L.J. Ch. 679 ; L.R. Ch. 345, Pracfioe in Equity V V 1 . Y. Hill, L.R. 4 Eq. 266, Will L 7 V. Lake, L.R. 6 Eq. 188, Legacy 38 T. Springett, 38 L.J. Ch. 388 ; L.R. Ch. 300, Will, Constr. H 18 ^^ Stewart, 35 B. 304, Pr. in £^. BB 11 456 T. Toms, 39 L.J. L.J. Ch. 204, Patent 3 410 White's and Holmes' case and Head's case, in re Contract Corporation, 36 L.J. Ch. 121 ; L.R. 3 Eq. 84, Company E 187 Whitechurch v. FuUram District Board of Works, 36 L'.J. M.C. 145 ; 7 B. & S. 212; L.R. 1 G.B. 233, Metropolis Loc. Man. 3 . 364 Whitehead t. Izod, Chapman v. Shepherd, 36 L.J. C.P. 183 ; L.R. 2 C.P. 228, Stock Ex- change 7 . Whitehouse v. Wolverhampton and Walsall Rail. Co., 39 L.J. Ex. 1 ; L.R. 6 Ex. 6, Lands Clauses Act 36 Whitehouse's case, in re Russian Vyksounsky's Iron Works Co., L.R. 3 Eq. 790,- Company E 46 (2) . Whiteley y. Chappell, 38 L.J. M.C. 51 ; B. & S. 1019 ; L.R. 4 Q.B. 147, Poor 3 Whiteley's Settled Estates, in re, L.R. 8 Eq. • 574, Settled Estates 4 White Star, The, L.R. 1 A. & E. 6 ping T 4 . Whitferd, in re, ex parte Carne, L.R. 3 -Ch. 463, Composition Deed 70 . Whitham, in the goods? of, 36 L.J. P. & M. 26 ; L.R. 1 P. & D. 303, Executor-H . Probate F 1 . , Whiting V. Burke, L.R. 10 Eq. 639, Principal and Surety 6 . . . Whitney T. Smith, L.R. 4 Ch. 613, Trust C 8 590 Digest, 1865-70. 361 523 367 614 21 358 594 616 292 444 266 462 626 330 619 147 673 314 141 428 . 535 558 177 259 481 468 PAOB Whitman V. Aitken, L.R. 2 Eq. J14, Will L 2 625 V. Pearson. See Whatman t. same Whitmore v. Whitmore, 35 L.J. P. & M. 39; L.R. 1 P. & D. 96, Diforce 85 . . 236 V. _ , 35 L.J. P.'&M. 52, Divorce 163 242 V. Whitmore and Brettell, 36 L.J. P. & M. 32 ; L.R. 1 P. & D. 25, Divorce 169 Whitstable Free Fishers v. Foreman, 36 L.J. C.P. 273; (Ex. Ch.) 37 L.J. C.P. 305, Tolls 2 ..... Whittaker v. Lowe, 35 L.J. Ex. 44 ; 4 H. & C. 109 ; L.R. 1 Ex. 74, Composition Deed 4 168 AVliittaker v. Manchester and Sheffield Rail. Co., L.R. 5 C.P. 464 n. (3), Negligence 35 . 387 Whitter v. Bremridge, 35- L.J. Ch. 807 ; L.R. 2 Eq. 736, Legacy 14 . . . Whittemore v. Whittemore, 38 L.J. Ch. 17; L.R. 8 Eq. 603, Vendor and Purchaser 4 Will, Construction 113. Whittle V. Keats, 35 L.J. P. & M. 64, Pro- bate D i . Whitton's Trusts, in re, L.R. 8 Eq. 362. Trusts. II . ; . , AVhitwell t. Arthur, 36 B. 141, Partnership 7 407 WhitworthandHulse, and Lowe's Arbitration, in re, 35 L.J. Ex. 149; L.R. 1 Ex. 251, Arbitration D 3 . ■\Vhy Not, The, 38 L.J. Adm. 26; L.R. 2 A. & E. 265, Admiralty B 4 . Wickham v. Marquis of Bath, 35 L.J. Ch. 5 ; 35 B. 59; L.R. 1 .ik[. 17, Mortmain 6 V. New Bruns-vrick and Canada Rail. Co., 36 L.J. P.C. 6 ; L.R. 1 P.C. 64, Eaaway 34 605 , in re, ex parte Webster, L.R. 2 Ch. 666, Bankruptcy 2 . . . . Widrington, in the goods of, 35 L.J. P. & M 66, Will, Formalities 14 -. Wieland, ex parte, in re Wieland, 39 L.J, Bkcy. 46 ; L.R. 6 Ch. 486, Bankruptcy 24 Wigan V. Strange, 35 L.J. M.C. 31 ; H. & R. 41 ; L.R. 1 C.P. 175, Music 1 . Wigfield V. Nicholson, 37 L, J. Q.B. 165; 9 B. & S. 261 ; L.R. 3 Q.B. 450, Compositian Deed 41 . Wight V. Hitchcock, 39 L.J. Ex. 97 ; L.R. 2Ex. 9, P«toi!;26 V. Wight and Field, 36 L.J. P. & M. 129 ; L.R. 1 P.'& D. 368, Divorce 158 Wigtownshire, The, 36 L.J. Adm. ] 1, Admi- ralty C 22 . Wilcox V. Marshall, 36 L.J. Ch. 358 ; L.R. 3 Eq. 270, County Court 10 Wild V. Banning, 36 L.J. Ch. 694-; L.R. 2 Eq. 677, Composition Deed 112 . Wilday v. Barnett, L.R. 6 Eq. 193, Power 17 434 V. Sandys, L.R. 7 Eq. 465, Will, Ad- denda 60 . . . . . 650 AVildes v. Russell, 36 L.J. M.C. 241 ; H. & R. 689 ; L.R. 1 C.P. 722, Jtistice of the Peace 1 . . . . .302 Wilkes V. Collin, L.R. 8 Eq. 338, Mortgage 31 374 Willcinson, in re, L.R. 4 Ch. 687, Power 18 . 434 V. Castle and Castlev. Wilkinson, 37 L.J. Ch. 467 ; (on App.) 39 L.J. Ch. 843 ; L.R. 5 Ch. 534, Baron and Feme I . .66 5A 242 582 327 599 622 480 693 25 11 376 42 637 45 380 174 414 242 13 208 183 739 TABLE OF CASES. PAGE Wilkinson v. Evans, 35 L J. C.P. 224 ; H. & B. 552 ; L.E. 1 C.P. 407, Fraud, Stat, of, 12 V. Gibson, 36 L.J. Cli. 646 ; L.E. 4 Eq. 162, BaroH and Fitm 12 y. Joiighin, 36 L.J. Ch. 684 ; L.E. 2 Eq. 319, Legacy 2 . T. Lindgren, 38 L.J. Ch. 613; (on App.) 39 L.J. Ch. 722 ; L.B. 5 Ch. 670, Charity 7 . V. Schneider, in re Maria Le Blanc, 39 L.J. Ch. 410; L.E. 9 Eq. 423, Power 33 Wilkinson's case, in re Madi-id Bank, 36 L.J. Ch. 489; L.E. 2 Ch. 136, Company 'S. 143 141 Estate, in re, 37 L.J. Ch. 384 ; L.E. 9 Eq. 343, Lands Clauses Act 63 Settled Estates, in re, L.E. 8 Eq. 487, (on App.) L.E. 4 Ch. 587, Power 18. , in re, L.E. 9 Eq. 71, Pr. in Eq. C 13 Willcox V. Marshall, 36 L.J. Ch. 358 ; L.E. 3 Eq. 270, County Court 10 AVillcox and Storkey's Arbitration, in the matter of, L.E. 1 C.P. 671, Arbitration A 1 Willett, ex parte, in re Western Life Assur- ance Co., 39 L.J. Ch. 662 ; L.E: 5 Ch. 396, Company F 72 Williams, ex parte, in re Pullen, 39 L.J. Bankr. 1 ; L.E. 10 Eq. 57, Compo. Deed 30. 172 . , in re, ex parte Dimond, 39 L.J. Bankr. 47 ; L.E. 6 Ch. 743, Bankruptcy 37 V. Baily, L.E. 2 Eq. 731, Injunction, Addenda 27 . . . v.Bayley,35L,J.Ch, 717;L.E. 1E.&L App. 200, Undue Lifiiience 3 V. Cadbury, 36 L.J. C.P. 233 ; L.E. 2 C.P. 463, Landlord and Tenant 10 V. Earle, 37 L.J. a.B. 231 ; 9 B. & 740 ; L.E. 3 Q.B. 739, Covenant 15 V. Evans, 35 L.J. Q.B. Ill; L.E. Q.B. 352, Auction i . V. Glenton, 35 L.J. Ch. 284 ; L.E. Ch. 200, Vendor and Purchaser 29 . V. Golding, 35 L.J. C.P. 1 ; H. & 18 ; L.E. 1 C.P. 69, Action 12 V. Harding, 35 L.J. Bankr. 25 ; E. & I. App. 9, Bankruptcy 26 V. Jiimes, 36 L.J. C.P. 256; C.P. 677, Way5 . V. Eose, 37 L.J. Ex. 12 ; L.E. 3 Ex. 5, Sheriffs, . V. Llanelly Eail. and Dock Co., 39 L.J. Ch. 820 ; L.E. 10 Eq. 401, Pr. in Eq.ll6 458 V. Sidmotith Eail. and Harbour Co., in re AVebber, 36 L.J. Ex. 184 ; L.E. 2 Ex. 284, Bailway 38 . V. Stevens, 36 L.J. P.C. 21; L.E. 1 P.C. 352, Colonial Law 28 . V. Swansea Canal Navigation Co., 37 L.J. Ex. 107 ; L.E. 6 Ex. 168, Parliament 4 394 — — V. Bristol Marine Lisurance Co., 39 L.J. Ch. 504, Company D 6 V.Williams, 35 L.J. Ch. 12; (on App.) 36 L.J. Ch. 419 ; L.E. 2 Ch. 294, Family Arrangement \ . V. , 35 L.J. P. & M. 85 ; L.E. 1 P. &D. 178, Divorce 53 270 57 326 84 435 . 317 434 447 208 22 156 46 . 647 . 597 306 213 E. L.E. 1 L.E. 2 603 45 610 538 506 103 121 262 233 PAGE Williams v. Williams, 36 L.J. P. & M. 39 ; L.K._1 P. & D. 370, Divorce 119 . .238 V. , 36 L.J. Ch. 200 ; L.E. 2 Ch. 15, Practice in Equity E 18 (2). . . 449 -T , 37 L. J. Ch. 854, County Court 29 209 269 & Frauds, Stat, of, 3 V. Williams and Padfield, 35 L.J. P, M. 8 ; L.E. 1 P. & D. 29, Divorce 62 Evidence 62 . , ex parte, in re Madrid Bank, 35 L.J, Ch. 474 ; L.E. 2 Eq. 216, Company A -1 , , in the goods of, 35 L.J. P. & M. 2 ; L.E. 1 P. & D. 4, Will, Formalities 27 Mary, in the goods of (in the goods of J. H. Morgan), 39 L.J. P. & M. 48 ; L.E. 2 P. & D. 81, K 3. Williams' case, in re Imperial Mercantile Credit Association, L.E. 9 Eq. 225 «., Com- pany E 75 . Williamson, ex parte, in re National Perma- nent Benefit Building, Society, L.E. 6 Ch. 309, Friendly Society 18 . V. Williamson, L.E. 7 Eq. 642, Banking 3 WiUingale v. Maitland, 36 L.J. Ch. 64; L.E. 3 Eq. 103, Crown 2 . WiUobv, ex parte, in re Trick's Trusts, 39 L.J. Ch. 201 ; L.E. 5 Ch. 170, rnwi E 5 Wilmot's Trusts, in re, 38 L.J. Ch. 275; L.E. 7 Eq. 532, Marriage Sett. 5 . Wilmott, ex parte, in re Thompson, 36 L.J. Bankr. 17; L.E. 2 Ch. 795, Composition Deed 99 ..... Wilson, in the goods of, 37 L.J. P. & M. 72 n. ; L.E. 1 P. & D. 269, Will, Form. 39 . V. Bank of Victoria, 36 L.J. Q.B. 89 ; ,. 7 B. &. S. 290 ; L.E. 2 Q.B. 203, Skip. I 2. V. Bell, L.E. 4 Ch. 581 , Will N 3 V. Eord, 37 L.J. Ex. 60 ; L.E. 3 Ex. 63, Baron 4' Feme 19 . . . V. Furness Eail. Co., 39 L.J. Ch. 19 ; L.E. 9 Eq. 28, Specific Perf. 6 V. Gray, L.E. 3 Eq. 1 1 7. Pr. in Eq. U U 2 462 V. Grey, 36 L.J. Ch. 62, Land Tax 4 . 321 V. Halifax, Mayor, &c., 36 L.J. Ex. 44; L.E. 3 Ex. 114, Public Health Act 20 V. Hammonds, 38 L.J. Ch. 504 8 Eq. 323. Pleadings in Equity 15 . V. Hart, 35 L.J. Ch. 569 ; L.E. 463, Injunction 26 . , V. Jones, 35 L.J. Ex. 94 ; 4 H. 221 ; L.E. 1 Ex. 193 ; (Ex. Ch.) 36 L.J. Ex 78 ; L.E. 2 Ex. 139, Marine Insurance 32 V. London, Italian and Adriatic Steam Navigation Co., 35 L.J. C.P. 9 ; H. & E. 29 ; L.E. 1 C.P. 61, Shipping A 17 V. Merry, L.E. 1 Sc. App. 326, Master • and Servant 14 . V. Natal Investment Co., 36 L.J. Ch. 312, Company F 104 V. Newport Dock Co., 35 L.J. Ex. 97 ; 4 H. & C. 232 ; L.E. 1 Ex. 177, Damages 11 218 V. The Queen, L.E. 1 P.C. 405, Admi- mi rally F . . . . .15 V. Town Clerk of-Salford, 38 L.J. C.P. 35 ; L.E. 4 C.P. 398, Parliament (7 . 402 233 233 106 483 130 274 40 215 592 355 181 640 650 632 58 563 ; L.E. 1 Ch. 496 425 . 288 & C. 351 543 362 159 TABLE OF CASES. 731 Williams v. Traill, L.R. 3 P.O. 33, Attach- ment, Addenda 3 . V. Eankin, 35 L.J. Q.B. 87 ; 6 B. & S. 208 ; L.R. 1 Q.B. 162, Marine hmirance 26 350 V. Wilson, L.ll. 1 P. & D. 180, Divorce, Addenda 25 .... V. , L.E. 9 Eq. 452, Pr. in Eq. II 1 Wilson's case, in re Albert Life Assurance Co., 39 L.J. Ch. 539 ; L.E. 9 Eq. 706, Gimvpany Go2 . . . . . .^ , in re Commercial Bank Corporation of India and tlie East, 38 L.J. Ch. 526 ; L.R. 8 Eq. 240, Company E 65 . Trusts, in rej Shaw v. Gould, 35 L;J. Ch. 243 ; L.R. 1 Eq. 247 ; (H.L. on App.) 37 L.J. Ch. 433 ; L.R. 3 E. & I. App. 55, Conflict of Laws I . Wilson, John, in the goods of, 36 L.J. P. & M. 22, Will, Formalities 39 Wilte's Peerage^ Claim of the, L.R. 4 E. & I. App. 126, Peerage .... Wiltshire Iron Co., in re, ex parte Pearson,* 37 L.J. Ch. 554 ; L.R. 3 Ch. 443, Compamj'S ii 153 Winchester, Bishop of^ r. Wis, 39 L.J. Eccl. 22 (and see Sumner v. Wix, ibid. 26) ; L.E. 3 A. & E. 19, Church 39 . T. Mid Hants Rail. Co. 36 L.J. Ch. 64; L.R. 5 Eq. 17, Railway 25 . V. "Rugg, 37 L.J. Eccl. 86 ;" L.R. 2 A. & E. 247 ; (P.C.) Rugg v. Bishop, of Win- chester, 38 L.J. Eccl. 23 ; L.R. 2 P.C. 223, Church 27 . . ■ . . . Wing T. Tottenham and Hampstead Junction Rail. Co., 37 L.J. Ch. 654; L.R. 3 Ch. 740, Lands Clauses Act 16 . • Railway 23 ... . Winn r. Mossman, 38 L.J. Ex. 200 ; L.R. 4 Ex. 292, Justice of the Peace 15 T. Rose, 36 L.J. C.P. 306, Fr. at Law 17 440 Winsor, Charlotte, v. The Queen, 35 L.J. M-'C. 121 ; 6 B. & S. 143 ; L.R. 1 289 ; (Ex. Ch.) 36 L.J. M.C. 161 ; & S. 490 ; L.R. 1 Q.B. 390, Jury 1 hidictineiit 6 . Winterbottom v. Lord Derby, 36 L.J, 194; L.R. 2 Ex. 316, Highway 6 . Highway 17 . Practice at Law 43 . . . Winfle, in re, L.R. 9 Eq. 373, Evidence 12 . Wiseman v. Wiseman, 36 L.J. P. & M. 22 ; L.R. 1 P. & D. 351, Probate M 14 . Wisbeach, St. Ives and Cambridge Rail. Co., in re, ex parte Rector of Holywell, 36 L.J. Ch. 28, Lands Clauses Act 68 WoUaston v. King, 38 L.J. Ch. 61, Power 24 (Eemoicncss) .... V. , 38 L.J. Ch. 392 ; L.R. 8 Eq. 165, Power lb WoUaston v. Tribe, L.R. 9 Eq. 44, Marriage Settlenvmt 32 ... . Wonham v. Maohin, 39 L.J. Ch. 789 ; L.R. 10 Eq. 447, Costs in Equity 11 . Witham, in the goods of, 36 L.J. P. & M. 26 ; L.R. 1 P. & D. 303, Prohate El. .481 Wittington v. Tate, L.R. 4 Ch. 288, Mortage 29 374 645 647' 468 167 129 . 186 640 417 94 504 91 310 604 304. Q.B. 6B. Ex. 301 282 278 280 443 261 487 318 434 . 434 359 204 Woburn Abbey, The, 38 L.J. Adm. 28, Ship- ping Q 6 . Wolheim, ex parte, in re A¥olhcim, 3 De G-. J. & S. 389, Bankruptcy 97 . Womersley v. Merritt, 37 L.J. Ch. 19 ; L.R. 4 Eq. 696, Company D 3 . Wood v. Barker, 35 L.J. Ch. 276: L.R. 1 Eq. 139, Composition Deed 113 . V. Boosey, 35 L.J. Q.B. 103; L.R. 2 Q.B. 340 ; 7 B. & S. 869 ; (Ex. Ch.) 37 L.J. Q.B. 84 ; L.R. 3 Q.B. 223, Copyright 5 195 V. Bowron, 36 L.J. M.C. 5 ; 7 B. & S. 931 ; L.R. 2 Q.B. 21, Threats 2 . T. Chart, Wood v Wood, 39 L.J. Ch, 641 ; L.R. 10 Eq. 193, Copyright 7 V. Wood, 39 L.J. Ch. 790 ; L.R. 10 Eq. 220, Power 3 . V. Dunn, 36 L.J. Q.B. 11; 7B. & S. 94; L.R. 1 Q.B. 77; (Ex. Ch.) 36 L.J. Q.B. 27 ; L.R. 2 Q.B. 73, Attmihment 7 . r. Hunt, 38 L.J. C.P. 10 n.; L.R. 4 C.P. 18 n., to Ings v. L. & S. W. Rail. Co., Costs at Law 4 . V. Priestner, 36 L.J. Ex. 42 ; 4 H. & C. 681 ; L.R. 1 Ex. Ch. 66 ; (Ex. Ch.) 36 L.J. Ex. 127; L.E. 1 Ex. 282, Principal and Surety 2 . . . . y. Riley, 37 L.J. C.P. 24; L.R. 3 C.P. 26, Costs at Law 3 . V. Scoles, 35 L.J. Ch. 547 ; L.R. 1 Ch. 369, Partnership 9 . r. Slack, 36 L..L Ex. 130 ; L.R. 3 Q.B. 379, Composition Deeds 48 . . V. Wood, 36 L.J. P. & M. 34 ; L.R. 1 P. & D. 309, Wilt, Formalities 52 . T. , 35 B. 587 ; L.R. 4 Eq. 48, Will, Construction R 2 . Wood, ex parte, in re Carter, E.C. 35 LiJ. Bankr. 34 ; L.R. 1 Ch. 170, Bankruptcy 1 V. Wood and Hutchins, 36 L.J. P. & M. 48 ; 1 P. & D. 266, Divorce 123 . ' V. A¥ood and Stanger, 37 L.J, P. & M. 26 ; L.R. 1 P. & D. 467, Divorce 139 Divorce 155 (Costs) Woodcock's Trusts, in re, L.R. 3 Ch. 229, Settled Estates 12 . Woodger y. Great Western Rail. Co., 36 L.J. C.P. 177 ; L.E. 2 C.P. 318, Carrier 26 Woodhouse y. Murray, 36 L.J. Q.B. 289; L.R. 2 Q.B. 634 ; 8 B. & S. 466 ; (Ex. Ch.) 38 L.J. Q.B. 28 ; 9 B. & S. 720 ; L.R. 4 Q.B. 27, Bankruptcy 11 . y. AVoodhoxise, 38 L.J. Ch. 481; L.R. • 8 Eq. 614, Trust B 6 . Woods' y. De Mattos, 35 L.J. Ex.64; 3 H, & C. 987 ; L.R. 1 Ex. 91, C'ompo. Deed 2 . 168 Woods y. Lamb, 36 L.J. Ch. 309, Partnership 2 406 Woods, Martha, in the goods of, 37 L.J. P. & M. 23 ; L.R. 1 P. & D. 566, Exor. 1 Wood's Estate, in re, 40 L.J. Ch. 69 ; L.E. 10 Eq. 572, Lands CI. Act, Addenda 30 Woodward y Buchanan, 39 L.J. Q.B. 71; L.R. 5 Q.B. 286, Evidence 4 . . y. Pell, 38 L.J. Q.B. 30 ; 9 B. & S. 994 ; L.E. 4 Q.B, 55, Bill of Exchange 27 . 67 ,666 54 121 •183 681 196 432 31 198 468 198 407 175 642 633 42 238 210 211 5^6 80 43 688 255 648 250 732 TABLE OP CASES. 56 449 61 112 494 316 149 . 646 202 415 . 561 Woodward r. Woodward, 3 De G. J. & S. 672, Baron and Feme 5 . . . , . AVoolbridge v. Norris, 37 L.J. Ch. 640; L.R. ■ 6 Eq. 410, Fractiee in Eq. G 2 WooUey y. North London Eail. Co., 38 L.J. C.P. 317; L.R. 4 C.P. 602, Production 3 . Worcester, in re, ex parte Agrn, Bank, 37 L.J. 23 ; L.E. 3 CIi. 555, Bankruptcy 68 . Company C 33' . Wormald v. Maitland, 35 L.J. Ch. 69, Eeg. 1. 522 Worral Waterworks Co. v. Lloyd, L.Ii. 1 C.P. 719, Puhlic Body 2 . . .492 Worsley v. Worsley and Wignall, 38 L.J. P. & M. 43 ; L.E. 1 P. & D. 648, Bivorce 101 237 Worth T. Gilling, I^.E. 2 C.P. 1, Negligence 9 382 Worthington v. Hulton, 35 L.J. Q.B. 51; L.E. 1 Q.B. 63, Fuhlic Health Act 10 Wotton's Estate, in re, 35 L.J. Ch. 305 ; L.E. 1 Eq. 589, Lands Clauses Act 48 . ". Wragg's case, in re Beaujolais Wine Co., 37 L.J. Ch. 220 ; L.E. 3 Ch. 15, Company F 6 • , in re Breech Loading and Armoury Co., L.E. 5 Eq. 284, Company, Addenda 17 Wraithby and CoUis's Claims, in re Sheffield Waterworks Act, 36 L.J. Ex. 60; 4 H. & C. 74 ; L.E. 1 Ex. 54, Costs at Law 31 . Wren v. Weild, 38 L.J. Q.B. 327 ; 10 B. & S. 61 ; L.E. 4 Q,.B. 213, Patent 30 . V. , 38 L.J. Q.B. 327 ; L.R. 4 Q-B. 730, Slander 4 Wrench v. Wynne, 38 L.J. Ch. 235, Practice in Equity QQ 2 . Wright V. Child, 36 L.J. Ex. 201 ; 4 H, C. 529 ; L.E. 1 Ex. 358, Sheriff U V. Deley, 4 H. & 0. 209, Fr. Soc. 15 V. Hickliug, 36 L.J. C.P. 40; L.E, C.F. iOd, Partnership 17 . V. .Hitchcock. See Wight v. same _ — T. Jelley, 38 L.J. Ex. 22 ; L.E. 4 Ex. 9 Composition Beed 63 y. Larmuth, L.E. 10 Eq. 139, Costs in Equity 31 . ; . ' . ' . v.'Pearson, 38 L.J. Q.B. 312 ; 10 B. & S. 723 ; L.E. 4 Q,B. 582, Negligence 10 . V. Pitt, L.E. 3 Ch. 809, Production 12 . V. Rogers andGoodison, Winterbm'n in- tervening, 38 L.J. P. & M. 67 ; LJl. 1 'P. & D. 679, IViU, FormaUlics 24 'Wroithby in re, in re SheiBeld Waterworks Act. See Wraithby and Collis, in re Wright, ex parte,' in re London and Mediterra- nean Bank, 37 L.J. Ch. 529, Company's. 123 138 Wright's case, in re Anglo-Eomano Water Co. ,- 39 L.J.Ch. 771; L.E. 5 Ch. 437, Company E 85 . . . . .157 Wright and Gamble, ex parte, in re General Estates Co., L.E. 8 Eq. 123, Company^ 97 159 Wycombe Eail. Co. t. Donnington Hospital, L.E. 1 Ch. 268, Lands Clauses Act 32 AVyndham's Trusts, in re, L.E. 1 Eq. 290, Will, Construction L 12 . Wynn Hall Coal Co., in re, ex parte North and South Wales Bank, 39 L.J. Ch. 695 ; L.E. 10 Eq. 515, Company G 48 & 462 539 274 408 177 205 383 489 639 314 626 Xenos V. Fox, 37 L.J. C.P. 294 ; L.R. 3 'C.P. 030; (Ex. Ch.) 38 L.J. Q.B. 361 ; L.R. 4 C.P. 665, Marine Insurance 7 . . 346 V. Wickham, 36 L.J. C.P. 313 ; L.R. 2 - E. & I. App. 296, Marine Insurance 16 . 348 Xeres Wins Shipping Co., in re. Alliance Bank, 37 L.J. Ch. 415; (on App.) 39 L.J. Ch. 112; L.R. 3 Ch. 769, Company G 2 .160 Yates, in re, Bradley y. Stclfox, 3 De G. J. & S. iO% Administration 30 . . .8 , ex parte, L.R. 5 Ch. 1, Patent'U . 412 V. Jack, 35 L.J. Ch. 539 ; L.R. 1 Ch. 295, Inju.iclion 13 . . . .286 Yeatman' v. Reed, 35 L.J. Ch. 176, Practice in Equity B B o . . . . 455 V. ,36 L.J.Ch. 136,PnTO£'jr.BB3. 455 T. Yeatman, 37 L.J. P. & M. 37; L.E. 1 P. & D. 489, Divorcc'Zii . . .230 V. and Riunmell, 39 L.J. P. & M. n, Divorce 16 . . . . 228 Yelland's case, in re English Jointi-Stock Bank, L.R. 4 Eq. 350, Company G 66 . 167 Yeoman v. Ellison, 36 L.J. C.P. 326 ; L.R. iCP.&U, Landlord 4- Tenants . . 306 Yeomans v. Williams, 35 L.J. Ch. 283'; 35 B.'130; L.R. 1 Eq. 184, Mortgage 9 .371 Yglesias v. Royal Exchange Commercial As- sociation, 39 L.J. C.P. 173 ; L.R. 5 C.P. Ul, Costs at Law 11 . .- .201 Yool V. Great Western Eail. Co., 39 L.J. Ch. 662, Railway 21 . . .603 Yorkshire Fibre Co., in re, L.R. 9 Eq. 650, Company F 18 . . . . 151 Young, James, The, 39 L.J. Adm. 1 ; L.R. 3 A. & E. 1, Admiralty 1) 16. . .15 T. Austen, 38 L.J. C.P. 233 ; L.E. 4 G.V. 553, Pleading at Law 1 ^ . .419 T. Bendy, 36 L.J. P. & M. 43 ; L.E. 1 P. & D. 344, Probate K 21. . .485 V. Grattridge, 38 L.J. Ex. 67; L.E. 4 Q.B. 166, Nuisance 14 . . . 390 V. Lambert, 39 L.J. P.C. 21 ; L.E. 3 P.C. 142, Bailment 2 . . .39 v. Matthews, 36 L.J. C.P. 61; L.E. 2 C.P. 127, Sale 10 . . . .527 V. Smith, 36 B. 87; L.E. 1 Eq. 180, Marriage Settlement 15 . . . . 357 V. Young, L.E. 3 Eq. 801, Mortgage 26 . 373 V. Whitchurch and Ellebmere Hail. Co., 37 1'-^- Ch. 'ise, Mortgage 13 . .372 . , in the goods of, James, 35 L.J. P. & M. 126 ; L.E. J P.jfe D. 186, Probate E 6 . 480 , W. H., in the goods of, 36 L.J. P. & M. 80 ; L.E. 1 P. & D. 186, Probate B 11 . 476 Zambacco v. Cassavetti, 38 L.J. Ch. 503, Practice in Equity D 1 . . . 447 Zealley v.Veryard, L.E. ] P.&D. 195,Proi. A7 745 Zulueta's Claim, ..in re London, Hamburg, and Continental Exchange Bank, 39 L.J. Ch. 961 ; L.R. 9 Eq. 270; (on App.) ibid. 598 ; L.E. 5 Ch. 444, Company C 56, 67 . 115 ZunzT. S.-East. Rail.Co., 38 L.J. Q.B. 209 ; 10 B. & S. 694; L.J. 4 Q.B. 539, Carritr H . 77 Lcmlcnt Prinled hy Spottiswwfle anO Co., Nfw-strett Square and Parliament Sireet, ^'m^3 Ws