^-_ I. - s^-^■: mpi > ■ m "*e'a.9i ^ A-'-- V..» :-»^-' ■^i' i( ?M W^l WK-n »i^'i ^■^^^:^'--^^K€ ^¥^i m S> acquired, 64 Power over and DispositUm of, 64 Liability in respect of, 65 Separation Deeds, 65 Wipe's protected Property, 66 Actions and Suits : Pleading and Evidence i», 66 Offence of Desertion of Wife, 66 BASTARDY. Proof of Illegitimacy, 66 Order op Afpihation. Jurisdiction to make the Order, 67 Evidence in Support of, 67 * Tmne for Appeal and Recognisance, 67 Maintenance, 67 BENEFIT BTJILDING SOCIETY. — See Friendly and other Societies. Also, Attorney and Solicitor. BILL OF SALE. Validity of, in general, 67 Assignment of after-acquired Peopeett, 68 Construction op, 69 Eegisteation op, 69 Filing of, 70 Affidavit of Attesting Witness, 70 Description op Assignor and op Attesting Witness, 70 BILLS OF EXCHANGE AND PROMISSORY NOTES. [See Addenda, page 663.] Form and Operation of. In general, 71 Payee, 71 Imperfect Instrument, 71 ■ Stamp : Cancelling on Foreign Bill, 71 Acceptance. By Partners, 72 Per Pro., 72 Transfer. In general, 72 Bill drawn in several Parts, 72 Indorsement of Bill payable to Order by Dis- counter, 72 After Maturity, 72 Discharge from Liability on. By Payment, 72 By giving Time, 73 Consideration, 73 Notice of Dishonour, 73 Actions and Suits. In general, 74 In respect of lost Bill or Note, 74 Summary Procedure on, 74 Cheques, 74 BIRTHS, DEATHS AND MARRIAGES.— See Registration. BLEACHING AND DYEING WORKS, 75 BOND. Construction of, 75 Discharge: Legal Impossibility to per- form, 75 BOROUGH.— See Rate ; County Rate. BOUNDARIES, 76 BRIDGE. Liability to repair, 76 Liability to light, 76 BROKER, 77 BURIAL. Burial Boards. Election of Members : Vacancies, 77 District Parishes, 77 Burial Grounds. For United Parishes, 77 Closing, 78 Burial Fees, 78 BY-LAW, 78 CANAL AND CANAL COMPANY. Construction of Canal Acts. Compensation to Mine Owners and others, 78 TABLE OF TITLES. Right of Mine Owner entitled to. (c) Thing done in Pursuance of Act of Parliament. (C) Form op Action [See Money Codnts]. (A) When maintainable. [See Lands Clauses Consolidation Act.] (a) For Injuries the Subject of Foreign Penal Lams. If by the laws of a foreign State there be a civil remedy for a wrong done there, the fact, that by those laws criminal proceedings must precede the civil remedy there, constitutes no bar or defence to an action in this country. Scott v. Seymour, 31 Law J. Rep. (s.s.) Exch. 457; 1 Hurls. '& C. 219. ACTION; (A) When maintaikable. To an action for assault and false imprisonment the defendant pleaded, except as to the imprison- ment, that the trespasses were committed out of the jurisdiction of the Court, to wit, at Naples, that the plaintiff and the defendant resided there, and while there, proceedings were taken by the plaintiff in the Court of the circuit of the Chiaja in Naples, according to the articles of the penal procedure laws of that country; and that according to the laws of that country the defendant was not liable to be sued by the plaintiff in any civil action, or other proceed- ings, to recover damages for the alleged trespasses, nor liable to any other proceedings in respect of the trespasses, except those taken and instituted under the laws aforesaid, and which were still pending and undetermined in the said Court at Naples. The defendant also pleaded, secondly, except as to the imprisonment, a similar plea of proceedings in the Court of the circuit of the Chiaja, and that accord- ing to the laws of the country the defendant was not liable to be sued by the plaintiff, and that he could not recover any damages in a civil action or other proceeding for the trespasses until the defendant had been condemned and found guilty of those tres- passes or some part thereof, and which said proceed- ings were still pending and undetermined ; and, thirdly, to the imprisonment, alleging that by the laws of the country the defendant was liable to cer- tain penal proceedings for the imprisonment if not authorized by the law of the country ; and that by the law of that country no civil action or other pro- ceedings could be maintained to recover damages until after the defendant had been condemned and found guilty in such penal proceedings, and that no such proceedings had been instituted : — Held, on demurrer, that neither plea afforded any answer to the action; for that it was consistent with the first plea that by the proceedings there mentioned a com- pensation in damages was recoverable, and that the pendency of such civil proceedings would not afford any bar to the action in this country ; and that the other pleas did not afford any answer, because they admitted that a civil remedy did exist, and the necessity for taking previous criminal proceedings was a matter of procedure only. Ibid. (6) Against a Foreigner. The defendant, a merchant resident in Norway, and not a British subject, drew in Norway his bill of exchange at four months on E in this country, and after indorsing it to the order of D, sent it by post to D in London, who indorsed it to the plaintiff in London : — Held, that there was not a cause of action which arose in this country nor a breach of a contract made within it, and that therefore the plain- tiff could not sue the defendant in this country on the bill under sections 18. and 19. of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 16. Sicliel V. Borch, 33 Law J. Rep. (n.s.) Exch. 179 ; 2 Hurls. & C. 954. (c) For Assault committed m Foreign Cov/ntry. It is no bar to an action in this country for an assault and false imprisonment committed by one Englishman upon another at Naples that, by the law of Naples, no proceeding to recover damages for the trespasses could be maintained by the plaintiff, untU after the defendant had been found guilty and condemned by the criminal tribunal at Naples, before which he had been arraigned, in respect thereof ; nor is it any bar to such action for the assault that, by the law of Naples, damages in respect of it could only be recovered in one particular form of proceeding, which had been commenced and was still pending. Scott v. Seymour (Ex. Ch.), 82 Law J. Eep. (n.s.) Exch. 61 ; 1 Hurls. & C. 219. Quaere — Whether, if by the Neapolitan law no damages were recoverable at all for such trespasses, that law could be pleaded as a defence to the action here ? — Per Wightmwn, J., that it could not. Ibid. {d) On a Foreign Judgment. To an action on a foreign judgment, it is no answer that the defendant became a party to it merely to prevent his property being seized, and that the judgment is erroneous in fact and in law on the merits, whether the plea alleges that the error does or does not appear on the face of the judgment ; nor can the defendant plead that the enforcement of the judgment in England is contrary to natural justice, on the ground that the defendants had dis- covered fresh evidence shewing that the judgment is erroneous in fact and law on the merits, or that evi- dence was improperly admitted. De Cosse Brissac V. Rathhone, 30 Law J. Rep. (h.s.) Exch. 238 ; 6 Hurl?. & N. 301. (e) Against Public Commissioners for Negligence. Commissioners under the "Towns Improvement Clauses Act, 1847," are liable to an action, in their corporate capacity, at the suit of a person who has suffered damage from a highway, within the limits of the defendants' special act, being allowed by them to remain in a dangerous condition. Martnall V. the Ryde Commissioners, 33 Law J. Rep. (n.s.) Q.B. 39 ; 4 Best & S. 361. Section 52. of the " Towns Improvement Clauses Act, 1847," imposes on the commissioners elected under the act the duty of fencing footpaths, if needed for the protection of passengers, and leaves them no discretion : — Held, that such commissioners are therefore liable, in their corporate capacity, to an action at the suit of a person injured by their neg- ligent omission to fence a footpath ; and the com- missioners are liable in such a case, without it being shewn affirmatively that they have funds, or the means- of raising funds, wherewith to pay damages. Ohriy V. the Ryde Commissioners, 33 Law J. Rep. (U.S.) Q.B. 296; 5 Best & S. 743. By an act of parliament drainage commissioners were to make and maintain a sluice for the discharge of the drainage waters, and owing to the negligence of the persons employed by the commissioners for the purpose, being apparently competent, the sluice burst, and damage was caused to the neighbouring land : — Held, by Coclcinm, C.J. and Mellor, J., that the commissioners were not liable to an action in their corporate capacity, inasmuch as they were persons intrusted with a public duty and discharged it gratuitously, and took themselves no part in the actual performance of it, and had been guilty of no personal negligence, and had no funds at their dis- posal out of which the damages could be paid. By BlacTcbwrn, /., that, there being an absolute duty cast upon the commissioners of maintaining the 6 ACTION; (A) Wheh maintainablb. sluice, they were liable for the damage caused by the negligent performance of that duty. Coe t. Wke, 33 Law J. Rep. (n.s.) CI.B. 281 ; 5 Best & S. 440. (/) Against Directors of a Company on Implied Warranty of Authority to sell. The deed of settlement of a joint-stock company declared its business to be " to build or purchase, and own or hire, iron steam-vessels, and to use or let upon hire the same for the purpose of transport of cokIs or other merchandise from any port or ports of the United Kingdom or elsewhere, to any other port or ports of the United Kingdom or elsewhere"; and the powers of the directors were defined to be, amongst other things, *' the building or purchasing or hiring of such steam-vessels as they should see fit," " the seUing and letting to hire and chartering of the vessels," " the general conduct and manage- ment of the business of the company," and ** the controlling, managing and regulating in all other respects, except as by those presents otherwise provided, of all matters relating to the company and the affairs thereof" The directors, thinking it expedient to sell all the company's vessels, employed the plaintitfs, shipbrokers, to procure a purchaser. The plaintiffs accordingly negotiated with C for a sale upon the terms fixed by the directors. The negotiation, however, went off, upon an objection urged by C's solicitor that the directors had no power to sell the whole of the vessels, except in the event of the winding up of the company with the consent of the shareholders, which had not been obtained : — Held, that the plaintiffs were not enti- tled to maintain an action against the directors upon an implied warranty that they had authority to sell, which, in point of fact, they had not. Wilson v. Miers, 10 Com. B. Rep. N.S. 348. Qucere — as to measure of damages in such a case, if the action had been maintainable ? Ibid. (gt) Against Trustees of Turnpike-Road for Negligent Execution of Worlcs under Turnpike Act. The trustees of a turnpike-road converted an open ditch, which used to carry off the water from the road, into a covered drain, placing catchpits with gratings thereon to enable the water to enter the drain. Owing to the insufficiency of such gratings and catchpits, the water, in very wet seasons, instead of running down the ditch as it formerly did before the alterations by the trustees, overflowed the road, and made its way into the adjoining land, and injured thecoUiery of the plaintiff: — Held, that the trustees were liable for such injury, if they were guilty of negUtjence in respect of such gratings and catchpits. Whitehouse v. Pellowes, 30 Law J. Rep. (N.S.) C.P. 305; 10 Com. B. Rep. N.S. 765. Held, also, that a fresh damage to the plaintiff's colliery occasioned by the trustees continuing such insufficient gratings and catchpits was a distinct cause of action ; and that, therefore, an action brought in respect of it within three months from the time of such fresh damage, although after more than three months from the first damage, was not defeated by the General Turnpike Act, 3 Geo. 4. c. 126. s. 147, which limits the action against such trustees to " three months after the fact committed." Ibid. (A) Against Process-Server for not indorsing Day of Service on Writ. There is no absolute duty on the part of a process- server, arising from the mere delivery of a writ of summons for service, to indorse on the writ the day of service, as required by the Common Law Pro- cedure Act, 1852 (15 & 16 Vict. c. 76), o. 15. To render the server liable to an action for omittmg to make such indorsement, there must have been some request expressed or implied to him to make the indorsement. Curlewis v. Broad, 31 Law J. Rep. (N.S.) Exch. 473 ; 1 Hurls. & C. 822. The declaration alleged that the defendant was a process-server, and that the plaintifT issued a writ of summons against W, and retained and employed the defendant, as such process-server, to serve the writ according to the provisions of the Common Law Procedure Act, 1852, for reward, and delivered the writ and copy to him for that purpose ; and the defendant, as such process-server, accepted such retainer and employment, and received the writ for the purpose aforesaid; and thereupon the defendant, as such process-server, in consideration of the pre- mises, promised the plaintiff, that in case he should serve the writ, he would perform his duty in that behalf Averment of service and of conditions pre- cedent to entitle the plaintiff to have the defendant to do and perform his duty. Breach, that the defen- dant did not do or perform his duty in this, that he did not, nor would within three days after service of the writ, indorse thereon the day of the month and week of such service, as required by the act, and as he ought to have done, by reason whereof the plain- tiff was prevented from signing final judgment, and the proceedings in the action became futile and unavailing. Plea, that the defendant, before and at the time of the alleged employment, was not re- tained, or employed, or instructed in any way to indorse on such writ of summons the time of service thereof, as required by the 15th section of the Common Law Procedure Act, 1852 ; and that he never was at any time retained or employed by the plaintiff, or any other person for him, to do more than serve the writ, and was not at any time re- quested or directed to make such indorsement: — Held, on demurrer, that the plea answered the declaration. Ibid. (i) By a Physician for his Fees. "The Medical Act" (21 & 22 Vict. c. 90.) gives a physician who is registered under the act a legal right to recover fees without a special agreement for remuneration. Gibbon v. Budd, 32 Law J. Rep. (N.S.) Exch. 182 ; 2 Hurls. & C. 92. (k) Against Surveyor of Highways for Neglect to repair Highway. No action lies against a surveyor of highways, appointed under the 5 & 6 Will. 4. c. 50, for damage resulting from an accident caused by his neglect to repair the highway. So held in the Exchequer Chamber, affirming the judgment of the Court of Exchequer (31 Law J. Rep. (n.s.) Exch. 250 ; 7 Hurls. & N. 760). Young v. Davis, 2 Hurls. &C. 197. (l) By Holder of Negotiable Instrument. An action may be maintained by a person as ACTION; (B) Notice of Action. the holder of a negotiable instrument, notwithstand- ing he has no real interest in it, and never was the actual holder. If it has been indorsed and delivered to some person professing to act as his agent, although without hia knowledge, and he subsequently adopts the acts of the assumed agent, that is sufficient title, although such adoption is after action brought in his name without hia linowledge. Aruiona v. Marks, 31 Law J. Rep. (n.s.) Exch. 163 ; 7 Hurls. & N. 686. W, the holder of three negotiable instruments to which the defendant was a party, indorsed them to the plaintiff and delivered them to G & T, a firm of attorneys, with instructions to sue the defendant on them in the name of the plaintiff, which G & T, assuming to act for the plaintiff, accordingly did. The plaintiff knew nothing of these proceedings until after action brought, when he adopted and ratified them. The defendant pleaded to the action that the plaintiff was not the lawful holder of the instru- ments at the commencement of the suit:. — Held, that the action was well brought in the plaintiff's name. Ibid. (m) For using Trade MarTc. Declaration, that the plaintiff had agreed with the defendant to manufacture for him bricks, accord- ing to the defendant's directions; that the defendant directed the plaintiff to mark them in a way which, to the defendant's knowledge, amounted to a piracy of R's trade mark ; that the plaintiff, being ignorant of,K's rights, marked the bricks as directed, and delivered them to the defendant ; that R thereupon filed a bill in Chancery, for an injunction and ac- count, against the plaintiff, which he compromised on the payment of costs: — Held, that this disclosed a good cause of action, as equity would grant an injunction against a person who innocently uses another's trade mark. Diimn v. Fwwcus, 30 Law J. Rep. (n.s.) Q.B. 137; 3 E. & E. 637. Semhle — That, the natural consequence of the defendant's acts being to involve the plaintiff in a Chancery suit, an action w^uld lie, even if the plain- tiff's ignorance.would have entitled him to succeed in the suit. Ibid. (m) For Tceepmg Diseased Sheep. Sheep of the defendant having a contagious disease were found in the plaintiff's field with his sheep, and the disease was communicated to them. The defendant occupied land near the plaintiff's, but there was no evidence as to how the defendant's sheep got into the plaintiff's field. Four days after- wards, the defendant on being told that his sheep were diseased said, " I could not help it; I had the sheep at tack at P's; they caught it from Mr. B's sheep " : — Held, that these facta did not shew any right of action, for there was no evidence of any knowledge by the defendant at the time the disease was communicated that his sheep were diseased. Cooke V. Wammg, 32 Law J. Eep. (h.s.) Exch. 262; 2 Hurls. & C. 332. (o) By Seoersioner of Chattel. The owner of a chattel let to hire can stie for a permanent injury to his reversionary interest therein. Hears v. the London and South-Western Fail. Co., 31 Law J. Rep. (n.s.) C.P. 220 ; 11 Com. B. Rep. N.S. 850. (p) Fxclmive Bight of letting Pleasure-Boats. The proprietors of a canal by deed granted to the plaintiff the sole and exclusive right of putting or using pleasure-boats for hire on the canal ; — Held, that this did not confer such an interest in the plain- tiff aa to give him a right of action against another person for using pleasure-boats for hire on the canal. HiUv. Twp-per, 32 Law J. Rep. (n.s.) Exch. 217 ; 2 Hurls. &C. 121. (B) Notice oj Action. {a) Form and Sufficiency of. The notice of action signed by B, the plaintiff, under the 9 & 10 Vict. i-. 95. s. 138, was: " It is my intention at the end of one calendar month from the date hereof to commence an action against you" (the high bailiff) "in the Court of Queen's Bench, to recover compensation in damages for a trespass and excessive levy committed by you and your officers on the 3rd of December, 1863, by selling and disposing of certain goods upon the premises. No. 80, Derby- shire Street, &c., to satisfy debt and expenses under an order recovered against me in the S county court:" — Held, sufficient. Burton y, Le^ Gros, 34 Law J. Rep. (h.s.) Q.B. 91. (6) Who entitled to. [Mason v. the Birkenhead Improvement Commis- sioners, 8 Law J. Dig. 7 ; 6 Hurls. & N. 72.] (c) Thing done im Pursumice of Act of Parliameni, [See 24 & 25 Vict. c. 96. s. 103.] In pursuance of a resolution at a parish vestry that it would be advantageous if a weighing-machine were erected to check the weight of materials purchased for the highways, the surveyors appointed under the Highway Act, 5 & 6 Will. 4. c. 50, caused a machine to be placed in the highway : — Held, that although the statute gave no express power to erect weighing- machines, the surveyors were acting in pursuance of the act, so as to entitle them, under section 109, to notice of an action brought for injuries sustained in driving over a heap of earth excavated for the weighing-machine. Hardvnch v. Moss, 31 Law J. Rep. (n.s.) Exch. 205 ; 7 Hurls. & N. 136. The defendant, who kept a draper's shop, gave a marked florin to his cashier. The plaintiff, one of the defendant's shopmen, was found by the defen- dant in the course of the day with that florin in hia possession, the defendant having asked him to shew the money in his pockets. The defendant imme- diately gave the plaintiff into custody on the charge of stealing the florin. The plaintiff explained the posses- sion of it by saying that he had previously received it in change from the cashier. The plaintiff brought an action for false imprisonment against the defendant without giving him any previous notice of action. The defendant pleaded not guilty by statute. By the statute 24 & 25 Vict. c. 96. s. 103, " any person found committing any offence," &c. punishable under the act (which includes larceny and embezzlement), may be immediately apprehended without warrant by any person ; and by section 113, before the commence- ment of any action for anything done pursuant to the act, one month's notice in writing of the action and of the cause of action is to be given to the defendant. The Judge who tried the cause told the jury that the 8 ACTION— ADMINISTRATION OF ESTATE IN CHANCERY. want of notice of action was, on the evidence, no de- fence. The defendant's counsel thereupon excepted, that the Judge ought to have directed the jury that the question for them was, whether the defendant honestly believed that the plaintiff had wrongfully taken the florin, and that in giving the plaintiif into custody he, the defendant, was exercising a legal power ; and that if they so found, the defendant was entitled to the verdict, for want of notice of action: — Held, on a bill of exceptions, that when the question is whether a defendant is entitled to notice of action in respect of a thing done pursuant to a statute, the true rule is, whether the defendant honestly believed in the existence of such a state of facts as would, if it had existed, have afforded a justification for the arrest under the statute ; and that applying that rule to the present statute the exception was insufficient, as the defendant's counsel asked the Judge to leave to the jury a question which could not have decided the point whether the defendant was entitled to notice of action, since the defendant could not have been entitled to notice unless he believed not only that the plaintiff had stolen the florin, but also that he had been found committing the offence, and the defen- dant's counsel did not ask the Judge to leave to the jury whether the defendant believed that the plaintiff' had been found committing the theft. Roberts v. Orchard (Ex. Ch.), 83 Law J. Eep. (n.s.) Exch. 65 ; 2 Hurls. & C. 769. (C) Form of Action. [See Money CouNia.] ADMINISTERING. [See Abortion — Poison.] ADMINISTRATION. [See Executor and Administrator.] ADMINISTRATION OF ESTATE IN CHANCERY. (A ) What Debts mat be claimed. (B) Creditor FOLLOWING Assets. (C) Contingent Liabilities. (D) Marshalliko Assets. (E) Payment of Debts. (F) Payment of Legacies. (G) Practice. (A) What Debts may be claimed. A testator's estate, consisting partly of a West India plantation, was administered under the Court, and a large balance was due to a deceased consignee, which was ordered to be paid by his successor. This failing, held, as against the testator's creditors, that the representatives of the deceased consignee were entitled to be paid out of the general assets of the testator. Lyne v. Thompson, 30 Beav. 543. (B) Creditor following Assets. Under a decree for the administration of the estate of G, the plaintiff brought in his claim as a creditor, and a portion of his claim was disallowed; subsequently, after the distribution of the assets, the plaintiff paid other moneys on account of G's estate, and then filed a bill against the residuary legatees for an account of what was due to him in respect as well of the disallowed portion of his original claim as of the moneys subsequently paid: — Held, affirming the decision of one of the Vice Chancellors, that the plaintiff was entitled to have an account taken of what, if anything, was due to him. Thomas v. Griffith, 30 Law J. Rep. (k.s.) Chanc. 465. In 1822 H demised a dwelling-house in Dublin to D for 9,000 years, at a rent of 53/. In 1828 D demised the house to B for 8,000 years, at the same rent. In 1846 D died. By his will, dated in 1829, B gave all his personal estate to a trustee for the benefit of B's daughter until twenty-one, and to as- sign the trust fund and accumulations to his daughter when she attained twenty-four or married under that age, with the trustee's consent. In 1848 the daughter, being under twenty-four, married, with the trustee's consent; and previous to the marriage a settle- ment was executed, vesting 12,500/. stock in trus- tees, upon trust for the husband for life, then for the wife for life, and afterwards for the children of the marriage ; and a further sum of 6,457'. stock was vested in the same trustees, upon trust for the wife's separate use during the coverture, and afterwards for herself absolutely, or as she should appoint. In 1856 a claim was made by H upon D's representative for rent, and in respect of a breach of covenant to repair in the lease of 1822. D's representative filed a bill against the husband and wife and their trustees to enforce, as against B'a assets included in the settlement, the claim for rent, and in respect of the breach of covenant to repair in the lease of 1828; but one of the Vice Chan- cellors dismissed the bill, with costs; and, upon appeal, this decision was affirmed. Dilhes v. Broad- mead, 30 Law J. Rep. (n.s.) Chanc. 268. (C) Contingent Liabilities. In an administration suit, instituted before Lord St. Leonards' Act passed, a fund was set apart as an indemnity to the executors in respect of any pos- sible breaches of covenant by their testator in regard to his leasehold property. After the passing of the act the party entitled to the residuary estate peti- tioned for payment out of court of the indemnity fund under the act. The Court being of opinion that the act was not retrospective, that petition was dismissed. It being subsequently held that the act was retrospective, a petition of re-hearing was pre- sented with the same object as the original petition: — Held, that the decree of the Court in an adminis- tration suit, where an executor acts bona fide, is a complete indemnity to him, and it is not necessary to set apart an indemnity fund, and an order was made according to the prayer. Dodson v. SammeU, SO Law J. Rep. (n.s.) Chanc. 799 ; 1 Dr. & S. 575. The case of an assignment of a leasehold to a residuary legatee is not within the meaning of the 27th section of Lord St. Leonards' Act. Ibid. That section is retrospective in its operation. Ibid. (D) Marshalling Assets. A testator directed payment of his debts, &c.,and ADMINISTRATION OF ESTATE IN CHANCEEY. gave all the residue of hie real and personal estate to his wife and another person, appointing them executrix and executor, upon trust to pay the in- come to his wife for life, for her own use and the bringing up and educating his children ; and after her decease he made certain specific gifts, one being to his daughter Fanny Charlotte of his messuage and premises situate No. 4, Turnham Green Ter- race, held of the Prebend Manor. And there was also a general residuary gift to the wife. The wife borrowed GOOl. in aid of the personalty and residuary realty, and therewith paid debts and died: — Held, that in marshalling the assets, the whole income received by the wife during her life, as well as the corpus of the first residuary gift to her, was liable for costs, before resorting to the specific gifts. Hibon V. Hibon, 32 Law J. Rep. (n.s.) Chanc. 374. In 1775, A B became owner in fee of estates W and L. The W estate was subject to mortgages amounting to 5,3442., and the L estate to a mortgage amounting to 2,2002., all of which were created by A B's ancestor. In 1787, A B mortgaged the L estate for 8,0002., reserving the equity of redemption to himself, and personally covenanting to pay the money. Out of this sum he paid off the three mort- gages on the W estate. A B died in 1806: — Held, as between the representatives of A B, that the mort- gage was primarily payable out of A B's personal estate. Sagot v. Bagot, 34 Beav. 134. A testator devised his personalty and an estate K and other real estates, upon trust for payment of debts, and subject thereto, to certain devisees, and afterwards purchased the H estate, as to which he died intestate. The testator deposited the deeds of the H estate to secure 1,0002., and was subsequently found lunatic. Under an order in lunacy a mortgage was made of the H & K estates, to raise a sum of money to pay off the 1,0002., and other debts of the lunatic ; and a proviso Was inserted that, as between the lunatic's heirs and devisees, the H estate should be considered as the primary security for the mort- gage debt. The lunatic having died, — Held, that, on the true construction of the proviso, it did not have the effect of exonerating the devised estates at the expense of the H estate, and the devised estates were ordered to be first applied in payment of the mortgage debt. Freeman v. Ellis, 1 Hem. & M. 768. Qucere — Whether a proviso having such an effect would have been within the jurisdiction of the Lords Justices. Ibid. (E) Payment of Debts. Payment to a creditor who has proved his debt ought not to be suspended for the purpose of adjust- ing the equities between the parties jointly liable to him — per the Lord Justice Twner. Miclclethwait v. Wmstanley, 34 Law J. Rep. (n.s.) Chanc. 281. The 23 & 24 Vict. c. 38. s. 3. is not restricted in its operation to the protection of heirs, executors and administrators against claims by unregistered judg- ment creditors, but absolutely deprives unregistered judgment debts of all priority in the administration of assets; and the act applies equally to judgments of County Courts as to other judgments. In re Turner; Walter v. Twrner, 33 Law J. Rep. (n.s.) Chanc. 232. Mode of distributing a deficient estate where there Digest, 1860—65. were life annuities and gross sums charged thereon. Heath V. Nugent, 29 Beav. 226. (F) Payment op Legacies. Where, at the death of a mortgagor of lease- holds, the value of the mortgaged property exceeded the mortgage debt, and the mortgagee took no steps to realize his security for fourteen years after the death of the mortgagor, and in the mean time the mortgaged property became very much deteriorated in value, it was held, by one of the Vice Chan- cellors, and affirmed on appeal, that the mortgagee was not entitled to recover the deficiency arising on his mortgage security from those legatees of the mortgagor who had been paid. Ridgway v. New- stead, 30 Law J. Rep. (n.s.) Chanc. 889; 3 De Gex, F. & J. 474. The right of a creditor to make legatees refund may be log(t by laches, acquiescence, or such con- duct as would make it highly inequitable for the Court to allow him to assert such right. Ibid. The administrator of an intestate's estate paid to seven out of eight of the next-of-kin 1,2602. on account of each share, and made only small pay- ments on account of the remaining share. In dis- tributing the residue of the estate, after a lapse of thirty years, the persons claiming the last-mentioned share insisted that for the purposes of distribution a sum of 1,2602. ought to be treated as having been set apart on account of their share, and interest at 42. per cent, to be allowed thereon, and that the small payments ought to be treated as having been made on account of the interest on that 1,2502. : — Held, that this would be conferring a benefit in the nature of compound interest on the claimants of the unpaid share, and that the only mode of equalization which the rules of the Court allowed was to charge each recipient with the amount paid to him, toge- ther with simple interest at 42. per cent, from the date of payment. Lambe v. Orton, 33 Law J. Rep. (n.s.) Chanc. 81. Where a testatrix directed her executors to con- tinue the business of a public-house, and to employ W as manager at a salary, and at the expiration of the lease, goodwill, &c. &c. to be sold, the Court refused to accelerate the sale at the instance of the residuary legatee, a sale not being required for pay- ment of debts. Saunders v. Rotherham, 3 Giff. 557. A fund set apart in 1867 to answer liabilities of an intestate's estate in respect of leasehold cove- nants, was distributed in 1865 amongst the next-of- kin, it appearing that all the leases had either been sold or surrendered, and the statute 22 & 23 Vict. c. 35. s. 27. having passed in the mean time. Reilly T. Reilly, 34 Beav. 406. (G) Practice. [See Costs, in Equity.] If several suits are instituted for the administration of a testator's estate, they may be amalgamated in one decree, and the conduct of the cause will be given to a residuary legatee or other person having an interest in the residue, in preference to a creditor. Pervny v. Francis; Woodhaiih v. Francis, 30 Law J. Rep. (n.s.) Chanc. 186. Upon motion, after a decree in administration suit, to restrain a creditor from prosecuting an action to recover a disputed debt, — Held, that payment of the C 10 ADMINISTRATION OF ESTATE IN CHANCERY— ADVANCEMENT. creditor's costs of the motion and action must be made dependent on his establishing his debt in the suit. King v. King, 34 Law J. Rep. (n.s.) Chanc. 195 ; 34 Beav. 10. A manager was appointed to carry on an intestate's business, though there was no existing administration to his estate. Steer v. Steer, 2 Dr. & S. 311. A large balance was found due from the legal per- sonal representatives, but it appeared that the amount had been received under orders in another suit by the then solicitor, who retained it to satisfy large claims against his clients. The cause coming on for further consideration, and on a petition of the plaintiff, the solicitor was ordered to pay the money into Court. Bihby V. Thampsm (No. 2), 32 Beav. 647. Where an estate has been completely administered, the Court will, in general, order the funds to be paid out to the trustees, and will not interfere with their discretion, where they are agreed. Butler v. Withers, 1 Jo. & H. 332. Liberty given in one suit to prove in another for an amount appearing due in the former, does not confer an absolute right of proof in the latter suit. It is the right and duty of the branch of the Court to which the latter suit is attached to see that the claim made is a valid subsisting claim. MickletUwait V. WinstcmUy, 34 Law J. Rep. (h.s.) Chanc. 281. ADMIRALTY. [See Ship and Shipping.] ADVANCEMENT. When a father purchases in the name of his child, his declarations of intention contemporaneous with the transaction itself are alone admissible to prove a trust. Williams v. Williams, 32 Beav. 370. Parol evidence is admissible to prove that lands were purchased by a father in the name of his child, not as an advancement, but as a trustee. Ibid. Purchases and mortgages were taken by a father in the name of his son. The father received the rents and interest and paid them into a bank, but he allowed his son to draw for the sums he required. The son died first: — Held, that the presumption of an ad- vancement was not rebutted. Ibid. A testator on the marriage of his daughter gave the husband l,000i. jocularly in exchange for his snuff-box. By his will, the testator gave each of his daughters 1,000/., but provided that, in case any daughter should have received from him any sum " by way of marriage portion or advancement," it should be deducted from the legacy: — Held, that, under the circumstances, the l,000i given to the husband of the daughter was not to be deducted. M'Clme v. Evans, 29 Beav. 422. Where a father advanced money on mortgage of real estate, and, contrary to his solicitor's advice and without his son's knowledge, took the conveyance in his son's name, and subsequently told him it was a gift, but reserving the interest for the father's life ; and added, " There are your deeds," which the son ultimately took and retained, — on a bill by the father against the son, the Court declared that the trans- action was not an advancement, but made the father pay the costs of the suit. Dumper v. Dumper, 3 Giff. 583. To rebut the presumption of advancement there must be evidence of facts contemporaneous with the act in question. Ibid. W purchased copyholds for lives, and upon the dropping of a life, caused J, an illegitimate child of his daughter (the reputed father being still living) to be admitted in remainder after two of his (W's) children, and paid the admission fees. J always lived with W, and was sent to school by him, and received no assistance from his reputed father until after W's death: — Held, that J held the copyholds as a trustee only, since no presumptiop of an inten- tion to advance him was raised by the above circum- stances. Tucker \. Burrow, 34 Law J. Rep. (n.s.) Chanc. 478 ; 2 Hem. & M. 515. Semble — A purchase will not be presumed to be an advancement, on the mere ground that the person purchasing has placed himself " in loco parentis " towards the person in whose names the purchase is made. Ibid. In order that a purchase in the name of another may be an advancement, there must be a present intention, on the part of the person making the pur- chase, to confer at the time of the purchase a bene- ficial interest on the person in whose name the purchase is made. And it is not sufiicient that the purchase should be made with some view to the ultimate benefit of the latter person. Forrest v. Forrest, 34 Law J. Rep. (n.s.) Chanc. 428. Upon the question whether shares purchased by one brother in the name of another brother, to whom the former was alleged at the time of the purchase to have stood in loco pa/rentis, 'were an advancement, the allegation by the latter brother of a subsequent gift of the shares to him by the former was treated as inconsistent with and as rebutting the presumption of the original purchase having been made by way of advancement. Ibid. A married lady, living apart from her husband, purchased out of the savings of her separate estate stock in the names of her son and daughter. The lady died, appointing the daughter the executrix of her will. The son became lunatic. The daughter petitioned for a transfer of the stock to her as execu- trix. The Lords Justices ordered the transfer without requiring a bill to be filed. In re De Visme, and In re the TrusUe Act, 1850, 33 Law J. Rep. (n.s.) Chanc. 332. Semble — The doctrine that a purchase in the name of a child will, in the absence of evidence to the contrary, be presumed to be an advancement, does not apply where the purchase is made by a mother. Ibid. T M contracted to purchase freeholds in the name of himself and wife, and died before the whole of the purchase-money was paid or a conveyance executed. His wife survived him:— Held, that the contract was in the nature of an advancement to the wife ; and that inasmuch as the vendors were entitled to specific performance of the contract against T M's estate, and to be paid the remainder of the purchase- money out of his assets, the doctrine of advancement applied equally to the unpaid purchase-money, and that upon payment thereof the vendors would become trustees of the property for the widow. Drem v. ALEHOUSE. 11 Martin, 33 Law J. Rep. (n.s.) Chanc. 367; 2 Hem. & M. 130. ALEHOUSE. (A) Licence, Grant or. (a) DUcretion of Justices, (h) By Borough Justices. { c) When, Excise Licence necessary. (1) Sale of Beer under l\d. a Quart. (2) On or off the Premises, (d) Certificate of Character. (B) Offences. (a) Sale of Beer without a Licence. SV) Refusing to admit the Police, c) Sunday Trading. (C) FoKPBiiiJRE OF Licence. (A) Licence, Grant of. ■ (a) Discretion of Justices. Although, under the 9 Geo. 4. c. 61, Justices have a discretion as to whether they will grant licences to persons Iceeping or about to keep inns, alehouses and victualling-houses, to sell exciseable liquors, that discretion must be exercised in a rea- sonable manner; and therefore Justices cannot by a general resolution determine not to renew the licences of all such persons who shall not consent to take out an Excise licence for the sale of spirits in addition to the licence for the sale of beer. S. v. Sylvester, 31 Law J. Rep. (n.s.) M.C. 93; 2 Best & S. 322. (6) By Borough Justices. Borough Justices have no jurisdiction- to grant licences for inns and alehouses under the 9 Geo. 4. c. 61, except in such boroughs as have separate Courts of Quarter Sessions. . Camdlish v. Simpson, 30 Law J. Rep. (n.s.) M.C. 178; 1 Best & S. 357. (c) When Excise Licence n£cessai"y. (1) Sale of Beer under \\d. a Quart. The 3 & 4 Vict. c. 61. o. 13. makes an Excise licence necessary for the sale of beer of any descrip- tion ; and, therefore, the sale of beer at and under IJrf. a quart requires such a licence, notwithstanding the provisions of the 42 Geo. 3. c. 38. s. 18. and the 3 & 4 Vict. c. 12, in respect of beer at that price. Bead v. St(yrey, 30 Law J. Rep. (n.s.) M.C. 110 ; 6 Hurls. & N. 423. (2) On or off the Premises. A person licensed to sell beer by retail, " to be drunk or consumed off the premises," supplied a pint of beer to a traveller, who sat upon a bench placed and fastened against the wall of the house, returning the mug in which he was served: — Held, that the beershop keeper was properly convicted of the offence of selling beer to be drunk on the pre- mises, within the 4 & 5 Will. 4. c. 88. s. 17. Cross V. Watts, 32 Law J. Rep. (n.s.) M.C. 73 ; 13 Com. B. Rep. N.S. 239. (d) Certificate of Character. The appellant having obtained a certificate of character from six of his neighbours, presented it to the officer of Excise for the purpose of obtaining a licence for the sale of beer. It was proved that the defendant had for some years previously cohabited with a woman without having gone through the cere- mony of marriage ; but no act of indecency of any kind was proved against him : — Held, that the Jus- tices were not, on this evidence, bound to convict the appellant on an information under the 4 & 5 Will. 4. c. 85. s. 2, charging him with unlawfully making use of the certificate, knowing the same- to be false. Leader v. Yell, 33 Law J. Rep. (n.s.) M.C. 231 ; 16 Com. B. Rep. N.S. 584. (B) Offences. (a) Sale of Beer without a Licence. Section 12. of the 25 & 26 Vict. c. 22. repeals section 29. of the 11 Geo. 4. & 1 Will. 4. c. 64, and takes away any right, privilege, permission or exemp- tion from prohibition that may have previously existed to sell beer by retail at fairs without a licence. Huxham, v. Wheeler, 33 Law J. Rep. (N.s.) M.C. 163 ; 3 Hurls. & C. 75. (5) Refusing to admit the Police. An alehouse keeper licensed, under the 4 & 5 Will. 4. c. 85, to sell beer to be drunk in his house, and on the premises thereunto belonging, is liable to a penalty, under section 7. of the same act, if he refuse to admit a police officer to an outhouse in the yard belonging to the house, though only used as a cellar. R. v. Tott, 30 Law J. Rep. (n.s.) M.C. 177. For a second offence of refusing to admit the police, a beerhouse keeper is liable only to the punishment of disqualification from selling beer for two years, and not to a fine as well as disqualifi- cation. Ibid. (c) Sunday Trading. The 11 & 12 Vict. c. 49, which regulates the hours for closing beer-houses, &.c. during Sunday morning, isnot repealed by the 17 & 18 Vict. c. 79. and 18 & 19 Vict. c. 118, which apply only to Sunday afternoon. Whiteley v, Heaton commented upon. Harris v. Jenns, 30 Law J. Rep. (k.s.) M.C. 183; 9 Com. B. Rep. N.S. 152. The 11 & 12 Vict. c. 49. applies to persons other than licensed victuallers or persons licensed to sell beer, &c., and to fermented and distilled liquors other than exciseable liquors. Ibid. Three persons having walked, on a Sunday, a distance of four miles from the town of B. for amusement or exercise, called at an inn, in which they were admitted and served with liquor between the hours of three and five of the afternoon. They afterwards returned to the town of B, two by an omnibus, and the third on foot; — Held, in accord- ance with the case o{ Atkinson v. Setters, that they were travellers within the meaning of the 18 & 19 Vict. c. 118. 8. 2 ; and that, therefore, the innkeeper ought not to be convicted for opening his house to them for the sale of liquor contrary to that act. Taylor v. Humphreys, 30 Law J. Rep. (n.s.) M.C. 242 ; 10 Com. B. Rep. N.S. 429. It is an offence to open a public-house for the sale of beer before half-past twelve in the afternoon on Sunday to any person not being a traveller. The statute 11 & 12 Vict. c. 49. is not repealed. B. v. 12 ALEHOUSE— AMENDMENT. Senior, 33 Law J. Rep. (n.s.) M.C. 125 ; 1 L. & C. 401. The word " travellers " in the 11 & 12 Vict. u. 49, which prohibits the sale of refreshment on Sunday by persons licensed to sell beer or other fermented liquors " except to travellers," includes any persons who go abroad for purposes of business or pleasure, and who need refreshment. Taylur v. Sumphries, 34 Law J. Rep. (n.s.) M.C. 1 ; 17 Com. is. Rep. N.S. 539. As the exception is contained within the section of the act which creates the offence, the onus of shewing that the persons supplied with refreshment are not within it is on the informer. Ibid. A person who has taken a ticket at a railway station and is about to start by a train from that station is a "traveller" within the exception in the 42nd section of the 2 & 3 Vict. c. 47 ; and the keeper of a refreshment-room at the station is not liable to be convicted, under that section, for opening his house for the sale of beer, fermented liquor, &c., before one P.M. on Sunday, by reason of having supplied fer- mented liquor to such person. Fisher v. Moward, 34 Law J. Rep. (h.s.) M.C. 42. (C) FOEFEITURE OF LICENCE. The Justices are not warranted in adjudicating a forfeiture of the licence without legal proof of a former conviction ; a mere reference to the records of the petty sessions, where former convictions were entered, will not suffice. Cross v. Watts, 32 Law J. Rep. (h.s.) M.C. 73; 13 Com. B. Rep. N.S. 239. ALIEN. An alien, who had served on board a man-of-war for four years in time of war, held to be a natural-born subject under the 13 Geo. 2. c. 3. In re Giraud, 32 Beav. 385. AMBASSADOR. [See Leqact Duty.] AMENDMENT. [See Divorce — Practice, at Law; Appearance -Will; Proof of.] (A) (B) (C) At Nisi Prids. (a) Of Parties. (1) In general. (2) In Ejectment. (6) Adding Wife as a Defendant. (c) Costs of. Ik Cases op Variance. Bv THE Court. (A) At Nisi Prius. (0) Of Parties. (1) In general. Where a foreign bank sued in a corporate name by which it was known, and the defendant pleaded that it was not a body corporate, the Court allowed the writ, declaration, and subsequent proceeding to be amended by inserting the name of a director of the bank as nominal plaintiff, it appearing that by the law of the country the bmk was entitled to suein his name. Za Banca Nudonale sede di Torino v. Samburger, 2 Hurls. & C. 330. (2) In Ejectment. In an action of ejectment by the mortgagee of a devisee against the heir-at-law, it appeared at the trial that the devisee was in fact only entitled under the will to an equitable estate, the legal estate being in trustees. Thereupon, on the application of the . plaintiff, the Judge who presided at the trial inserted the names of the trustees as plaintiffs in the writ ; those persons being present in court, and consenting to that course. The real question in dispute was the competency of the testator to make a will : — Held, that this was an amendment which the Judge had power to make ; for if that power were not con- ferred as to ejectment by section 35, it was so by section 222. PkJce v. Done, 31 Law J. Rep. (n.s.) Exch. 100 ; 7 Hurls. & N. 465. (6) Adding Wife as a Defendant. A Judge at the trial has no power, under section 222. of the Common Law Procedure Act, 1852, to amend the proceedings by adding the wife as a defen- dant, in an action where the husband has been sued alone for a debt incurred by the wife dum sola. Garrard v. Giubilei, 31 Law J. Rep. (n.s.) C.P. 131 ; 11 Com. B. Rep. N.S. 616. Where the plaintiff sues the defendant for goods sold and delivered, and it turns out at the trial that the goods were supplied to the defendant's wife before marriage, the Judge has no power, under the 222nd section of the Common Law Procedure Act, 1852, or otherwise, to add the name of the wife as a defendant. Garrard v. GiuWei (Ex. Ch.), 31 Law J. Rep. (n.s.) C.P. 270; 13 Com. B. Rep. N.S. 832. (c) Costs of. In an action for breach of contract to ship a cargo of coal, the declaration described the coal as of the description called " through and through, to be hand- picked." It appeared from the evidence at the trial that the question in controversy was whether the contract was to ship hand-picked coal or not, and that the description in the declaration was contra- dictory in its terms, as hand-picked coal meant coal which had been passed over a screen, whilst "through and through coal " meant unscreened coal. The learned Judge amended the declaration by striking out the words "through and through," so as to raise the question whether the contract was for " hand-picked coal " or not : — Held, that the amend- ment was rightly made, and also that the defendant was not entitled to the costs of such amendment, 88 it appeared that he had not been misled by the declaration as to the matter in dispute. St. Loshy V. Green, 30 Law J. Rep. (n.s.) C.P. 19 ; 9 Com. B. Rep. N.S. 370. (B) In Cases op Variance. The plaintiff bought of defendant "the house- hold furniture, fixtures, utensils in trade," &c. of a public-house, " as per inventory, taken by W W," AMENDMENT— ANNUITY. 13 for 2622., upon a representation by the defendant that the receipts of the house were 801. per month, which representation turned out to be false. In an action for this misrepresentation, the declaration alleged the agreement to be for the purchase of the goodwill, furniture, fixtures, &c. : — Held, that the declaration substantially stated the true nature of the agreement, and that, at all events, the Court would, if necessary, amend it. Cator v. Wood, 19 Com. B. Kep. N.S. 286. (C) By the Court. The Court has power, under the 222nd section of the Common Law Procedure Act, 1852, to amend the record, where leave to move to enter a verdict is reserved, notwithstanding the Judge at the trial expressly refuses to allow an amendment or to reserve leave to amend, Oator v. Wood, 19 Com. B. Rep. N.S. 286. ANCHORS AND CABLES. The proving and sale of chain cables and anchors regulated by 27 & 28 Vict. c. 27. ANCIENT LIGHTS. [See Easement.] ANIMALS, CRUELTY TO. [See Negligbnoe.] A cock is an "animal" within the meaning of sections 2. and 29. of the 12 & 13 Vict. c. 92, and a person who takes an active part in a cockfight after one or both is disabled, is liable to be convicted under section 2. for causing and procuring a cock to be cruelly ill-treated, abused and tortured. Bridge V. Parsons, 32 Law J. Rep. (u.s.) M.C. 95. It is no offence under section 3. of 12 & 13 Vict, c. 92. to assist at a cockfight unless in a place kept or used for the purpose. Morley v. Greenhalgh, 32 Law J. Rep. (u.e.) M.C. 93 ; 3 Best & S. 374. ANNUITY. A) Memorial. B) Validity of. C) Arrears of. D) Security for. (E) Determinatioii of. ( F) Refund of Excess subscribed. (A) Memorial. It is sufficient, under the 53 Geo. 3. c. 141, to describe the instrument in the memorial of an an- nuity as a "grant of annuity." Sovikma v. Bennet, 30 Law J. Rep. (n.s.) C.P. 193. The consideration for the annuity was stated in the memorial to be 4,000Z., and this sum was actually paid to the grantor ; but, in pursuance of a previous arrangement, 400/. was immediately returned by him to the grantee's solicitor for procuration money and expenses : — Held, that this was no defence to an action on the covenant, even if it were ground for setting aside the securities on motion under the 6th section of the 53 Geo. 3. c. 141. Ibid. The annuity deed was attested by two witnesses, but in the memorial the names of four were in- serted; the clerk who prepared the memorial having, in consequence of the way in which the names of two of the grantors were written in the deed, by mistake added their names as witnesses, — Held, that this, so transparent a blunder that no one could be misled by it, did not aifect the validity of the memorial. Ibid. Gibia v. Hooper distinguished ; and the latter ground of the decision in that case questioned. Ibid. The payment of the annual sums, exceeding 51. per cent, per annum on the sum advanced, was secured upon land, and the principal by a policy on the life of one of the grantors, with a covenant for payment of the annual premium : — Held, that, as the principal was in some risk, the transaction was not void on the ground of usury. Ibid. [And see next case, Thompson v. CwrUxright.'] (B) Validity of. In the year 1828, F C, in consideration of l,998i, granted an annuity of 1392. 17*. a year for the first five years, with a reversionary annuity of 199/. 16s. a year for ninety-nine years, if five persons or any of them should so long live: and his brother T C, for a merely nominal consideration, charged the annuity on a moiety of certain real estates of which he was owner, and covenanted that he was seised free from incumbrances. No memorial of the deed was en- rolled under the 53 Geo. 3. c. 141. The estates pro- duced about 400i. a year, and T C's moiety was already mortgaged to secure 1,000/., with interest at 5/. per cent., so that the annual value of the moiety over and above the interest was about 150/. per annum. W M,oneofthe mortgagee8,acted as the soli- citor of all parties in the preparation of the annuity deed; — Held, by the Master of the RoUs, and on appeal bv the Lord Justice Knight Bruce (the Lord Justice Turner not expressing any opinion upon the points in controversy) ; First, that T C, although he had not actually joined in the grant of the annuity itself, was a grantor within the equitable construction of the 53 Geo. 3. c 141. s. 10, wliich dispenses in cer- tain cases with enrolment of a memorial. Secondly, that although for the purposes of that clause, the annuity granted must be taken to be of the larger amount, yet that W M must be regarded as having wilfully suppressed the prior incumbrance, and that the grantee could not therefore be afiected with con- structive notice thereof through W M; and, con- sequently, that the annual value of the lands, exclud- ing interest on incumbrances of which the grantee had notice, was greater than the annuity, and that the clause dispensing with enrolment of a memorial applied. Thompson v. Cartwright, 33 Law J. Rep. (n.s.) 234 ; 2 De Gex, J. & S. 10 ; 33 Beav. 178. A was entitled under a will to an annuity of SO/., charged upon real estate. She applied to B, a soli- citor, to procure a loan of money to meet her pre- sent needs. The loan could not be procured from a third person, but B, who was previously unknown to A, agreed to purchase a portion of her annuity. B was the only solicitor in the transaction, and on 14 ANNUITY; (C) Arebahs op. the execution of the deed handed to A his bill of costs, the charges in which were reasonable, and which A. forthwith paid out of the consideration money. Eleven years afterwards, A filed a bill to set aside the transaction, but one of the Vice Chan- cellors dismissed the bill with costs ; and on appeal, the Lords Justices held that the payment of the costs was not a return of part of the consideration money within the meaning of the Annuity Act, and considering that the case was not one coming strictly within the rules applicable to dealings between soli- citor and client, and there being no evidence of unfair advantage taken of A by B, they affirmed the decision of the Vice Chancellor. Edwards v. Wil- liams, 32 Law J. Rep. (n.s.) Chanc. 763. A B, resident in Brussels, was indebted to C D, resident in London. In August, 1838, C D went over to A B and settled accounts, and advanced him a fiirther sum of money, and it was agreed that A B should give a jiost obit security for part, and his notes for the remainder of the debt. This was not completed, but in January, 1839, C D went over again, when it was arranged that A B should grant an annuity in lieu of the post oHt security, and a bill at ten days was given by A B for the amount, which was delivered up upon the execution by A B of the annuity deed in February at Brussels; — Held, that this was one transaction, that the annuity was granted for money or money's worth, and that the deed, not being enrolled, was void under the Annuity Act:' — • Held, also, that the contract was English and not Belgian. Burgess v. Richardson, 29 Beav. 487. (C) Areeabs op. A testator devised his real and personal estate to trustees (of whom his wife was one), upon trust for conversion, and to invest in government or real securities, and that his trustees should stand pos- sessed of the trust premises to pay his wife an an- nuity of loot, clear of all deductions whatsoever, and directed the trustees to appropriate and set apart a fund for securing such annuity, and after the death of his wife directed the trustees to pay and divide or transfer the money thereinbefore appropriated and directed to be set apart among his (the testator's) children. Part of the testator's property consisted of 2,500/. il. per cent, stock, which, at his death and for some time after, produced lOOt a year; this fund was set apart by the trustees for securing pay- ment of the widow's annuity, but owing to successive reductions of the interest of the stock by parliament, there was, at the widow's death, a considerable arrear to make up the deficiency between the 100/. a year and the reduced income of the fund which had for many years been received by the widow : — ■ Held, that on the construction of the will the widow would have been entitled to have the deficiency made good out of the corpus, but that she having forborne to assert her claim for so long a period during her lifetime, and having been aware of the dealings of several of her children in respect of their shares with persons who were acting on the belief that they were shares in a certain definite amount of stock, without giving any intimation of her intention to claim such arrears out of the corpus, the represen- tatives of the widow could not, as against the parties who so dealt for value with the knowledge of the widow, assert the claim to which she would other- wise have been entitled to have the arrears of the annuity made good out of the corpus. Upton v. Vanner, 1 Dr. & Sm. 694. A testator directed his trustees out of the income of his residuary real and personal estate to pay an annuity of 200/., and after the decease of the an- nuitant to permit the fund out of which the annuity should arise to fall into his general residuary per- sonal estate, and the will contained gifts over of the residuary real and personal estate. The income of the testator's estate being insufficient for payment of the annuity, — Held, that the deficiency ought to be made good out of the corpus. Perkins v. Coohe, 31 Law J. Rep. (rr.s.) Chanc. 823; 2 Jo. & H. 393. A testator gave leaseholds to trustees upon trust to receive the rents and profits and to pay the annual sum of 60/. to H for life, and after the death of H to raise by sale or mortgage the sum of 400/. for the children of H, and after the death of H and the raising and payment of the 400/., to assign the said leaseholds, or such part thereof as should remain undisposed of, unto T absolutely. The in- come proving insufficient to satisfy the annuity, it was held that it was chargeable upon the corpus. Phillips V. Outteridge, 32 Law J. Rep. (n.s.) Chanc. 1. Annuitants under a will are not entitled to inter- est on the arrears of their annuities. Booth v. Coulton, 30 Law J. Eep. (n.s.) Chanc. 378. A tenant for life, having a power to give a life interest to his wife, by his marriage settlement appointed certain hereditaments to trustees, during his wife's- life, upon trust, if she survived him, to pay her an annuity of 500/. out of the rents and profits, during her life, for her jointure, in lieu of dower. He afterwards acquired the fee ; and the hereditaments, subject to the jointure, being con- sidered an insufficient security, the husband and wife joined in conveying the same, with other here- ditaments, to trustees, discharged from the annuity, upon trust within three months to raise, by mortgage, sufficient money to purchasean annuity of 500/. forthe hfe of the wife, if she survived him, or, if the money should not be raised by mortgage within three months, upon trust to sell the hereditaments, and invest a sufficient part thereof in 3/. per cent, con- sols, or (if insufficient) to invest the whole of the moneys in the parliamentary stocks or public funds, or in Government or real securities, and after the decease of the tenant for life, to pay the income to the wife during her life in satisfaction of the annuity, and to stand possessed of the surplus in trust for the husband. The power to raise money by mortgage was not exercised, and the trust pre- mises were sold and invested in consols, but the whole income was insufficient to pay the annuity. Upon a bill filed by the wife after the death of the husband, — Held, by the Lord Chancellor, affirming the decision of the Master of t!ie Rolls, that she was not entitled to have the deficiency of the income made good out of the corpus of the fund. Mortimer V. Picton, 33 Law J. Rep. (n.s.) Chanc. 337. * (D) Sbouritt for. A testator directed his executors to pay an an- nuity to his wife for hfe, and also that it should be secured to her out of his leasehold messuages, &c. The residue of his property he gave to his children : ANNUITY— APPORTIONMENT. — Held, that not only the rents, but the estate itself was a security for the annuity ; and the estate having been sold, and the fund being small and insufficient to meet the arrears and future payments of the annuity, the executors were ordered to pay the whole to the annuitant. Howairth v. Roihwell, 31 Law J. Rep. (U.S.) Chanc. 449; 30 Beav. 516. A testator gave his real and personal estate to trustees, and directed them to get in and sell his residuary personal estate which should not consist of leaseholds or moneys invested on security, and to appropriate a sufficient portion for payment of an annuity, which on the marriage of his daughter he had agreed to pay. He then gave his trustees a discretionary authority as to the sale of his real and leasehold estate. The residuary estate was ex- hausted, but the real and leasehold estates were suffi- cient to answer the annuity, which had been regularly paid. In a creditors' suit by the annuitant asking for administration of the real and personal estate, and that provision might be made for payment of the annuity, — Held, that the plaintiffs ought to have accepted an offer made to secure the annuity; that they were entitled to a charge on the testator's estates; that as the annuity had been paid, no ground existed for interfering with the authority of the trustees, but that a fund must be set apart to answer the annuity in the event of a sale of any part of the estates, with liberty to apply if the annuity fell into arrear, and that the plaintiffs must pay the costs up to and including the hearing. Bwrrell v. Delevante, 31 Law J. Rep. (n.8.) Chanc. 365; 30 Beav. 550. Upon the grant of an annuity during the grantor's life, the grantee undertook that when the annuity "came to be paid off," and " as soon as the annuity was redeemed," he would assign the policy on the grantor's life to the grantee. The policy was effected by and paid for by the grantee : — Held, on the death of the grantor without having redeemed the annuity, that the representative of the grantor was not enti- tled to the produce of the policy, or even to the surplus beyond the redemption money. £ashford V. Oann, 33 Beav. 109. (E) Determiitation op. Marriage will not determine an annuity given to a feme sole for life until she shall be bankrupt or insol- vent, or shall assign or dispose of it, or do any act whereby the annuity, or any part thereof, shall be vested, or become liable to be vested, in any other person. Bonfield v. Hassell, 32 Law J. Rep. (u.s.) Chanc. 475; 32 Beav. 217. (F) Refund of Excess subscribed. A proposal was made to establish, by the sub- scription of individuals (if approved of and aided by the East India Company), a fund for the purpose of creating, at the end of a certain number of years' service, a retiring pension to be held by members of the East India Company's civil service in Bengal. The directors did approve of the proposal, and undertook to pay in every year a sum equal to that subscribed by the subscribing members. They sug- gested rules which were adopted, and in the course of the correspondence between the directors and the subscribers, it was settled, by order of the directors and consent of the subscribers, that a subscriber should pay a certain per-centage on his salary during the whole time of his service, and that if, when he wished to retire, he had not paid half (the other half being contributed by the company) of the amount of the principal of the retiring pension (which was fixed at 10,000 rupees, or 1,000Z.) he must fully make up his half; but nothing was expressly declared as to what should be done with the excess, if his payments had exceeded the amount of the half: — Held, affirming the judgments of the Courts below (see 29 Law J. Rep. (n.s.) Chanc. 125), that the subscriber was not entitled to have such excess refunded. Boldero v. the East India Co. 10 H.L. Cas. 405. APPEAL. [Under Queen's Remembrancer's Act, see Revenue. And see Inclosure Acts — Inferior Court — Justice op the Peace — Practice, at Law — Sessions.] APPORTIONMENT. (A) Rents. (B) Dividends. (A) Rents. A testator directed that, for twenty-one years next after his death, his trustees should receive and accumulate the rents and profits of his real estate, and apply them towards payment of his debts and legacies, and, subject to that term, he gave the bene- ficial interest in the income of his estate to the plaintiff for life: — Held, under the Apportionment Act, that the rent which fell due after the expira- tion of the twenty-one years must be apportioned between those beneficially interested in the accu- mulations, and the tenant for life who was entitled on the expiration of the term. St. Auhyn v. St. Auhyn, 30 Law J. Rep. (n.s.) Chanc. 917; 1 Dr. & Sm. 611. A portion of the income was derived from royal- ties payable under mining sets or leases, when the ore should be obtained : — Held, that, this rent not becoming due at fixed periods, it did not come within the Apportionment Act. Ibid. Held, also, that although the above direction carried the period of accumulation to the half-yearly day of payment beyond twenty-one years, this did not bring the case within the operation of the Thel- lusson Act. Ibid. [See Bridges v. Potts, 33 Law J. Rep. (n.s.) C.P. 838, post, title Lease.] (B) Dividends. Land forming part of the estate of an intestate was sold under the compulsory powers of an act of parliament, and one-third of the purchase-money was invested in consols and set apart to meet his widow's dower: — Held, that the representative of the widow was entitled, under the 11 Geo. 2. c. 19. B. 16, to a proportion of the dividends up to the day of her death, ffarrop v. Wilson, 34 Law J. Rep. (n.s.) Chanc. 235 ; 34 Beav. 166. Lady M, being entitled, under the will of her late 16 APPORTIONMENT— APPRENTICE. husband, to a life interest in certain shares in the Alliance Insurance Company (the dividends on which were under the deed of- settlement to be de- clared half-yearly, and made payable in the months of April and October in each year), and also to a life interest in certain shares in railway and gas companies, died in November 1860. Subsequently a dividend was declared on the shares in the Alliance Company for the half-year ending on the 25th of March, 1861, and on the shares in the railway and gas companies for the half-year ending the 31st of December, 1860. The executrix of Lady M now claimed an apportioned part of these dividends: — Held, that the dividends on the shares in the Alli- ance Company were apportionable under the Appor- tionment Act, because the profits were by the deed of settlement of the company divisible at fixed periods. In re MaxwelVs Trusts, 32 Law J. Rep. (n.s.) Chanc. 333 ; 1 Hem. & M. 610. The apportionment mast be made with reference to the last previous time when the dividends were made payable, and not to that when they were earned. Ibid. The dividends on shares in companies incorpo- rated by acts of parliament containing clauses similar to section 91. of the Companies Clauses Consolida- tion Act, or in which the last-mentioned act is incorporated, are not within the Apportionment Act. Ibid. A testator bequeathed certain railway debentures to trustees to pay the interest to his children for life, and afterwards the capital to go to his grandchildren. The testator died in February, and the next half- year's payment of dividend upon the debentures was received in the following July ; — Held, that deben- tures being in the nature of mortgages upon which the interest accrued de die in diem, the portion of the half-year's dividend due up to the testator's death was to be considered as capital and not income, as between the tenants for life and remaindermen. In re Sogers's Trust, 30 Law J. Rep. (n.s.) Chanc. 163; 1 Dr. &Sm. 338. The Apportionment Act, 4 & 5 Will. 4. c. 22. s. 2, applies to a determinable interest in dividends, created by a will made after the passing of the act, in exercise of a power contained in a deed dated before the act. Wardroper v. Cutfield, 33 Law J. Rep. (n.s.) Chanc. 606. Plummer v. Wkitdey (Johns. 585 ; s. e. 29 Law J. Rep, (n.s.) Chanc. 245) approved. Fletcher v. Moore (26 Law J. Rep. (n.s.) Chanc. 630) explained and qualified. Ibid. APPRENTICE. [See Poor ; Settlement.] (A) Bill to enfohcb Execution of Inden- TDRE. (B) Jurisdiction op Court of Chancery to CANCEL Indenture. (C) Absenting from Sebtioe — Jurisdiction OF Justices. (D) Implied Contract for Maintenance. (E) Right of Master to Damages for Ab- sence OF Apprentice. (A) Bill to enforce Execution of Indenture. Bill by an apprentice praying that the defendant (his master) might be ordered to execute the inden- ture of apprenticeship, and to take him into his employ and teach him his trade, dismissed without costs, it appearing tliat the plaintiff's conduct was objectionable on account of his idleness and other unsatisfactory particulars. Brown v. Banks, 3 Giff. 190. (B) Jurisdiction of Court of Chancery to CANCEL Indenture. A bill was filed by the trustees and guardians of an infant, whose mother in her lifetime had paid 200 guineas as a premium to apprentice her son to an engineer, alleging that the master had improperly suspended him from work and excluded him from the factory, and asking the Court to cancel the in- denture of apprenticeship, and to direct a return of the premium: — Held, that this Court had "no jurisdiction, and that relief could only be obtained by an action at law for breach of the contract ; and, as the defendant omitted to demur, the bill was dismissed, without costs. Wehh v. England, 30 Law J. Rep. (n.s.) Chanc. 222 ; 29 Beav. 44. (C) Absenting from Service — Jurisdiction of Justices. By an indenture of apprenticeship, J C, an infant, with the consent of his father, put himself apprentice for seven years to T S, of W, lock-maker, his execu- tors and administrators, such executors or adminis- trators carrying on the same trade or business, and in the town of W, for seven years ; and T S, in con- sideration of the services of his said apprentice, agreed to teach and instruct him, or cause him to be taught and instructed, in the art of a lock-maker during the said term, and to pay the apprentice cer- tain weekly wages: — Held, that the apprentice was bound to serve the executrix of T S, his widow, who carried on her husband's business at W, and that the executrix was bound to teach him. Cooper v. Simmons, 31 Law J. Rep. (n.s.) M.C. 138 ; 7 Hurls. & N. 707. On the hearing of a summons, taken out by the executrix, against the apprentice, charging him with absenting himself from her service without lawful excuse, the attorney who appeared for the appren- tice stated that he had advised that the apprentice- ship was at an end on the death of the husband, and that the appellant, acting on the bona fide belief that the opinion of the attorney was correct, absented himself from the service: — Held, that the Justices were nevertheless justified in convicting the appren- tice for absenting himself without lawful excuse. Ibid. (D) Implied Contract for Maintenance. The plaintiffs and the defendant verbally agreed that the defendant's eon should be bound apprentice to the plaintifl's for four years, the son to go on trial for a month, a premium of 1001. to be paid by in- stalments. The son went on trial, and remained upwards of a year, when the defendant removed him. No deed of apprenticeship was executed, or any part of the premium paid:— Held, that the plaintiffs could not recover from the defendant for the main- APPRENTICE— ARBITRATION. 17 tenance of the son. Eamson v. James, 31 Law J. Rep. (n.s.) Exch, 248 ; 7 Hurls. & N. 804. (E) Right of Master to Damases for Absence OF Apprentice. An action was brought by the master against the father of an apprentice on an indenture of appren- ticeship toaerve the master for a period of five years from the Ist of May, 1860, and it was alleged as a breach of covenant that the apprentice unlawfully absented himself from his master's service. It was proved that the defendant took hia son away from the plaintiff on the 18th of January, 1862, and the writ in the action issued on the 10th of February, 1862; — Held, that the plaintiff was entitled to recover damages for the absence of his apprentice from the 18th of January to the 10th of February, and was not entitled to prospective damages for the whole term of the apprenticeship. Lewis v. Peacey, 31 Law J. Rep. (n.s.) Exch. 496 ; 1 Hurls. & C. 518. r V / ARBITRATION. [See Lands Clauses Consolidation Act — Public Health Act — Sessions.] (A) Submission to Arbitration. (a) Validity and JSffect of Agreement to refer. (6) Agreement signed by am Agent. (c) Amendment and Revocation of. {d) Making the Siibmission a Rule of Court. (B) Compulsory Reference. (C) Arbitrator. (a) P^ower and Duty, (h) Excess of Authority. (c) Effect of attending Arbitrator vmder Protest. (D) Award. (a) Form and Validity. ( 6) Setting aside and remitting. (c) Tahimg v(p Awaird : Moiety of Pee. (d) Enlwrgmg Time for makimg. (e) Making Awwrd a Rule of Court, if) Enforcing. (E) Costs, (a) To abide the Event. ( b) Taxation of. (A) Submission to Arbitration. (a) Validity amd Effect of Agreement to refer. A marine policy of assurance was made in a mutual assurance association (managed by a com- mittee of members), subject to the following rule : "All average, claims and claims of abandonment shall be adjusted and settled conformably to the custom of Lloyd's or the Royal Exchange by a pro- fessional average-stater, but should the committee or the assured be dissatisfied with such adjustment, they may refer the same to two professional average- staters, or to two other competent persons, with power to such two persons to appoint an umpire, and the award of such three persons shall be final, and all other causes of dispute of whatever nature shall be referred in like manner, but the committee and assured, by mutual consent, may refer all such Digest, 1860—65. adjustments or disputes to one person only, whose award shall also be final, and no action at law shall. be brought until the arbitrators have given their decision": — Held, that this was a valid agreement within the rule in Scott v. Avery, and that the refer- ence to arbitration or offer to refer was a condition precedent to a claim on the policy for a total loss, and that an action could not be maintained on the mere refusal to pay the claim. Tredwen v. Bolman, 31 Law J. Rep. (n.s.) Exch. 398 j 1 Hurls. & C. 72. In an action on the policy, the declaration, after setting out the policy and rule and alleging the total loss, averred that the plaintiff had always been will- ing that the loss and amounts payable in respect thereof should be adjusted ^d settled according to the rule, and had performed all conditions precedent to entitle the plaintiff to a performance of the agree- ment and rule and to maintain the action, and had requested the defendant and the members of the association to settle and adjust, or to allow to be settled and adjusted the amount payable in respect of the loss and in accordance with the terms of the policy and of the rule. Breach, that the defendant and the said members had wholly refused so to do, and that the amount insured had not been paid, nor been settled or adjusted in accordance with the policy and rule : — Held, that the declaration was good as either containing an averment that the defendant had refused to refer the dispute, or that a reference had been had and an award made in favour of the plaintiff; and on the other hand, that a plea alleging that the claim had not been adjusted and settled according to the rule, and that there was a dispute in respect thereof within the meaning of the rule, and that it had not been arbitrated upon, nor had the arbitrators or arbitrator given a decision thereupon, was an answer to the declaration. Ibid. Articles of partnership comprised an agreement to submit all disputes to arbitration, and until such arbitration should have taken place neither party was to be at liberty to sue the other with reference to the affairs of the partnership : — Held, that although an arbitration clause is legal, there may not be a negative clause superadded to withdraw the decision of the question from the tribunals of the country. Lee V. Page, 30 Law J. Rep. (n.s.) Chanc. 857. Where a mining lease contained a clause for referring to arbitration all questions to arise between lessor and lessee " relative to or concerning the indenture, or any covenant, clause, matter or thing therein contained," upon the request in writing of either party, and after bill filed by lessors to compel lessees to work the mine in a particular manner, notices to refer had been served by the lessees upon motion under the 11th section of the Common Law Procedure Act, 1854, to stay proceedings, the' Court held that the case was one which came within the 11th section, but that the section gave the Court a discretion; and the Court, in its discretion, refused to stay proceedings, on the ground that the notices to refer related to other matters besides those the subject of the suit, and that questions arose in the suit which did not come within the clause in the lease. Wheatley v. the Westminster Brymlo Coal and Coke Co. (Lim.), 2 Dr. & S. 347. An agreement between A and B contained the following clauses, — "In every case of any difference between the parties hereto, or their representatives, D 18 ARBITRATION; (A) Scbmissiom to Aebitkation. whether touching the true intent or construction of this agreement or of anything therein expressed, or touching anything to be done or omitted in pursuance of this agreement, or as to any of the incidents or consequences thereof, or otherwise relating to the premises, the matter in question shall be referred to arbitration." " Every such reference shall be made to two persons, one to be named by each party." " If either party for fourteen days after being requested by the other party to name an arbitrator fail so to do, then both arbitrators may be named by the party making such request." Differences having arisen, A appointed an arbitrator, but B declined to do so on request, whereupon A appointed a second arbitrator ; and the two proceeded to hear and dispose of the matter. The appointment of the arbitrators purported to be made by A and one C (who was said to be an incumbrancer on A's presumed interest under the agreement) severally/, and the notice was also given by A and C: — Held, that the appointments were not vitiated by the introduction of the name of C. Haddan v. Soupell, 9 Com. B. Eep. 683. Held, also, that it was not necessary in the appoint- ment of the arbitrators to particularize the matters to be arbitrated upon. Ibid. Held, also, that the request to B to appoint an arbitrator was not rendered invalid by its requiring him to notify the appointment to the solicitors, who had been acting for A throughout, instead of to A himself. Ibid. (6) Agreement signed ly an Agent. Upon a submission to arbitration between two in- dividuals (not being partners in trade) and a third party, where the agreement of reference is signed by one of them thus, " A, for self and B," — on making the submission a rule of Court, it must be shewn by affidavit that A had the authority of B to sign for him. In re Aldington, 15 Com. B. Rep. N.S. 375. (c) Amendment and Bevocation of. An order of reference of a cause made by a Judge at chambers by consent of both parties " on the usual terms," includes such power to the arbitrator to amend, as a Judge would have at Nisi Prius. If, therefore, after such consent, the formal order drawn up by the Judge's clerk accidentally omits such power, the Judge may insert it therein at the request of either party, notwithstanding the reference has been pro- ceeded with. Thompsett v. Bowyer, 30 Law J. Rep. (K.S.) C.P. 1 ; 9 Com. B. Rep. N.S. 284. If an arbitrator refuse to allow a party to a refer- ence to put in evidence certain documents which by law he is entitled to have read on his behalf, the party aggrieved may, pending the reference, apply for leave to revoke the submission. If, however, it be shewn that the arbitrator has acted wrongly in law, the Court will not necessarily make the rule absolute ; but, on the contrary, will discharge it, provided it be satisfied that the arbitrator, on hearing the decision of the Court, will comply with its directions, and receive the evidence. Hart v. Duke, 32 Law J. Rep. (N.S.) Q.B. 55. The Court will not allow an amendment so as to introduce a new cause of action, where a cause has been referred by consent under an order which does not reserve power to the arbitrator to amend. Nor will they permit the plaintiff to revoke the submis- sion, there being no suggestion of any breach of faith on the part of the defendants. Smuthwaite v. Richardson, 15 Com. B. Rep. N.S. 463. (d) Making the Submission a Rule of Court. [See ante, (J).] Where matters in difference had been referred to an arbitrator by Judge's order, and the arbitrator, after twice enlarging the time, had made his award, the order of reference may be made a rule of Court without an affidavit verifying the dates of such enlarge- ment. Roberts v. Evans, 34 Law J. Rep. (N.S.) Q.B. 73; 6Best&S. 1. Where two persons agree by deed to refer all matters in dispute which shall arise between them to two arbitrators, one to be chosen by each for that purpose ; and on such disputes arising, in pursuance of such agreement the arbitrators are appointed by parol, the submission to arbitration is a parol sub- mission, and therefore cannot be made a rule of Court under the 17 & 18 Vict. c. 125. s. 17. Ex paHe Olaysher, 34 Law J. Rep. (h.s.) Exch. 41 ; 3 Hurls. & C. 442. A lease contained a proviso that in case any dis- putes and differences should arise between the par- ties, they should be referred to two arbitrators, one to be chosen by each party, and that if either of them should neglect to name an arbitrator on his part within seven days after notice of the appoint- ment of an arbitrator by the other, the arbitrator so appointed should act for both ; and it was further agreed that " the submission of the said parties to the award of the said arbitrators or arbitrator might at the instance of either party be made a rule of Court." Disputes having arisen, the lessor ap- pointed an arbitrator in writing, and gave notice in writing to the lessee that he had done so; the latter did not appoint an arbitrator on his part, whereupon, after due notice, the arbitrator appointed by the lessor proceeded ex parte, and made an award : — Held, upon the construction of the 17th section of the Common Law Procedure Act, 1854, that upon filing the appointment with an affidavit by the lessor verifying his signature thereto, the submission might be made a rule of Court. Newton v. Hether- ington, 19 Com. B. Rep. N.S. 342. Held, also, that by the combined effect of the 17th and 26th sections, an affidavit by the attesting witness to the lease was not necessary. Ibid. (B) Compulsory Reference. In the case of a compulsory reference, under the Common Law Procedure Act, 1854, section 3, the parties are bound by the opinion of the arbitrator upon questions both of law and fact, as in the case of any voluntary reference. Baguley v. Marhidch, 30 Law J. Rep. (n.s.) C.P. 342; s. c. nom. Bag- galay v. Bortkwick, 10 Com. B. Rep. N.S. 61. Semble — A party has not a right to demand a case to be stated for the opinion of the Court, but that whilst the reference is pending before the arbitrator he may apply to a Judge, under section 4, for an interim order to state a case. Ibid. A Judge at Nisi Prius has no power, under the Common Law Procedure Act, 1854, to make a com- pulsory order of reference of a cause before him for trial in the ordinary way, the power conferred by section 3. being confined to applications before trial, ARBITRATION; (C) Arbiteatok. 19 and section 6. to trials of questions of feet by the Judge without a jury. Robami v. Lees, 30 Law J. Rep. (tf.s.) Exch. 235 ;' 6 Hurls. & N. 258. To an action for damages for not delivering up premises at the expiration, in as good repair and condition as at the commencement, of a tenancy, and for breach of a covenant in a lease to deliver up in good repair, — the defendant paid Wl. into Court, which the plaintiff denied to be enough to satisfy his claim. A Judge at chambers, on the application of the plaintiff, having made an order referring the action to the Master, under the 17 & 18 Vict c. 125. s. 3, the Court held, that it was a matter for the discretion of the Judge; that he had exercised a wise dis- cretion, and refused to rescind his order. Angell v. Pelgate, 31 Law J. Rep. (n.s.) Exch. 41; 7 Hurls. & N. 396. (C) Arbitrator. [Appointment of — see Saddan v. Roupell, ante, (A) H (a) Power and Diiiy. The Court of Chancery referred to arbitration certain matters in dispute between parties to the suit of B V. H, and also between the same parties as to the estate of H, the testator in the cause; those dis- putes related to certain collieries, their management and the dealings with them for many years. One of the parties had a son, who was well acquainted with the mining accounts, and had assisted his father in the business, and this party applied to the arbitrator to allow his son to be present; but that officer refused to permit him to be present, on the ground of his behaviour in the matter. A shorthand writer, whose presence the same party wished to take notes at the meetings, was also excluded. After the award, a motion was made to set it aside : — Held, that, with- out going into the question whether the award did or did not do substantial justice between the parties, it must be set aside, the exclusion by the arbitrator of the son and the shorthand writer having been made without adequate ground, and the acquiescence of the party complaining, in the proceedings under the reference after their exclusion, not being such as to deprive him of his right to have the award set aside. In re JIaigh's Estate ; Baigh v. Baigh, 31 Law J. Rep. (n.s.) Chanc. 420; 3 De Gex, F. & J. 157. Observations on the duties of arbitrators, and on their'power to delegate authority. Ibid. An arbitrator, in' taking accounts, allowed two bills of costs sent to him by one side after the last meeting, without communicating them to the other side, and he, being authorized under the reference to appoint an accountant, " not objected to by any of the par- ties," appointed one without communicating with the parties. The award was set aside. In re TidsweU, 33 Beav. 213. An arbitrator awarded that a sum, which he found due from one party, should " be forthwith paid and accounted for by him, and brought into trust ac- counts " : — Held, that this was too uncertain, and fatal to the award. Ibid. Observations as to remitting an award back to the same arbitrator, under the 17 & 18 Vict. c. 125. s. 8. Ibid. Bill by a contractor, alleging unfair conduct on the part of the architect, whose decision was by the terms of the contract made final, and who ousted the contractor and finished the buildings. The Courtj on proof of such unfair conduct, decreed payment of the balance due to the plaintiff on the contract, and relieved the contractor from penalties, declared the architect's decision not binding, and ordered both the defendants (the architect and the contract- ing party) to pay the costs of the suit. Pawley v. TurnbuU, 3 GifS. 70. It is not absolutely necessary that the evidence before an arbitrator should be taken on oath ; the parties may waive it. Wakefield v. the LlomeWy Sailway and Dock Co., 34 Beav. 245. At the trial of an action on covenants in a lease (which had many years to run) for non-repair, and for waste by alteration of the premises, raising many issues, an order of reference was made, which directed " that the jury do find a verdict for the plaintiff for the claim in the decimation, subject to a reference to a valuer, who is to decide whether there is any damage to the plaintiff by reason of the premises not being in a sufficient state of repair, under the terms of the lease, in which case the valuer is to award the amount of damage to the reversion. It is also ordered that the valuer is to say what compensation (if any) the plaintiff is entitled to in consequence of the alterations which have taken place in the premises, and that the valuer should be attended by two wit- nesses only on each side, to explain the past and present state of the premises." The appointed valuer found as follows: " I hereby certify that beyond the sum of 171. paid into Court, there is no damage to the plaintiff by reason of the premises not being in a sufficient state of repair under the terms of the lease ; nor is the plaintiff entitled to any compensa- tion in consequence of the alterations which have taken place in the premises ": — Held, that the arbi- trator had no power over the verdict, but that his duty was limited to deciding on the two specified matters of damage, viz., by reason of non-repair, and by reason of the alterations ; that the certificate was good and valid, though it did not dispose of the issues raised, and that it authorized an entry of a verdict for the plaintiff, with nominal damages. Sowdon-v. Milk, 30 Law J. Rep. (n.s.) Q.B. 175. It is competent to arbitrators, under the Friendly Societies Act, to decline to hear counsel. In re Macquem, 9 Com. B. Rep. N.S. 793. SenMe — That all arbitrators have the like discre- tion. Ibid. It is a matter entirely in the discretion of an arbitrator whether he will or will not postpone the reference, in order to give one of the parties an opportunity of bringing a material witness from abroad. And the Court will not interfere unless the circumstances under which he refuses to do so are such as to amount to misconduct. Oinder v. Owrtis, 14 Com. B. Rep. N.S. 723. (J) Excess of Authority. The plaintiff had effected three policies on goods, one for 6,00OZ. with the A company, another for 2,500/. with the B company, and a third for 2,500/. with the C company. A fire having happened, the plaintiff's claims against these three companies were referred to arbitration. The agreement of reference recited that the plaintiff had claimed to have made good, by the several companies parties thereto, or 20 ARBITRATION; (C) Arbitrator. some of them, the loss thereby sustained to the chattels and things insured, so far as the said loss was covered by the policies, or any of them ; and that four schedules, severally marked A, B, C, and Ca, contained the particulars of all the chattels and things alleged by the plaintiff to have been covered by the said policies, or some or one of them, and to have been destroyed or injured by fire. It further recited, that " it had been agreed between the said parties thereto that the claim of the plaintiff, so far as respected the chattels and things particularized in schedule A should be satisfied by means of the pay- ment to him of a sum of 2,771?. 19s. 5d., such sum being the agreed value at the time of the occurrence of the fire of the last-mentioned chattels and things, as the plaintiff did thereby admit." It further recited, that difficulties had arisen respecting the settlement of the said claim of the plaintiff, so far as the same had not been agreed to be satisfied as aforesaid, and respecting the adjustment of the respective liabilities of the said companies, as between or among them- selves, to the total loss covered by the said policies. It then proceeded to refer it to the arbitrators " to award and determine what was the total sum of money which ought to be paid to the plaintiff under or by virtue of the said policies, or any of them, in respect of loss or damage occasioned by the said fire to or in the said chattels or things particularized as aforesaid in schedules B, C, and Co, and what were the several proportions in which such total sum, and also the said sum of 2,771'. 19s. 5d. agreed to be paid as aforesaid, ought to be borne and paid among or between the several companies." The arbitrators by their award found that 8,288/. Os. 7d. was the total sum of money which ought to be paid to the plaintiff under or by virtue of the said three policies, in re- spect of loss or damage occasioned by the fire to the chattels and things particularized in schedules B, C, and Ca; and they directed that this sum of 8,288;. Os. 7d. and the 2,771/. 19s. 5rf., so agreed to be paid to the plaintiff in satisfaction of his claim in respect of the loss or damage occasioned by the fire to the chattels and things particularized in schedule A, making together 11,060/., should be borne and paid by the three companies in certain proportions. They then found that the loss or damage sustained exceeded the sums insured, and that the whole salvage and proceeds of the salvage of and from the said fire belonged absolutely to the plaintiff: — Held, that, in awarding that the plaintiff was entitled to the salvage, which it appeared irom the record arose solely from the goods particularized in schedule A, the arbitrators had exceeded their jurisdiction. Skipper V. Grant, 10 Com. B. Rep. N.S. 237. By bond of submission dated the 19th of March, 1869, it was referred to an arbitrator to determine of and concerning all matters of accounts then pending between A and B. The arbitrator, by his award, reciting the submission, awarded "of and concerning the premises," that, " up to the 31st of October, 1867, the accounts between A and B, in reference to the W C farm, were adjusted, and that the balance then due from A to B amounted to 4.314/. 14s. lOrf. ; and that no partnership existed between A and B in respect of the said farm ; " and he further awarded that "A do pay to B the sum of 781/. 6s. Zd., the amount due from him in respect of the ikrm afore- said ; and that the said A do pay to the said B the sum of 1,1 37i. 17s. due from him to B in respect of shares in the C company ; and that, on payment of such last-mentioned sum, the said B do deliver to the said A 118 shares in the said company, held by him as collateral security for the said sum." In an action brought by the executors of B to enforce pay- ment of the two sums so awarded, — Held, that the award was not uncertain, and that the arbitrator had not exceeded the authority given to him by the sub- mission in awarding that no partnership existed between A and B, or that the shares held by B as collateral security for the 1,137/. 17s. should be deli- vered up to A on payment of that sum. Harrison T. Lay, 13 Com. B. Bep. N.S. 528. (c) affect of attending Arbitrator vmder Protest. If an arbitrator, who has suffered his time to expire, determine to proceed in the reference, not- withstanding an objection taken on that ground by a party to the reference, and the party protests that any award which the arbitrator may make will be there- fore void, his continuing to attend and contest the case before the arbitrator under such protest does not give the arbitrator authority to make an award. Mngland v. Lowndes (Ex. Ch.), 33 Law J. Rep. (N.S.) C.P. 337 ; 17 Com. B. Rep. N.S. 614. If a party to a reference objects that the arbitrators are entering upon the consideration of a matter not referred to them, and protests against it, and thearbi- trators nevertheless go into the question and receive evidence on it, and the party, still under protest, continues to attend before the arbitrators and cross- examines the witnesses on the point objected to, he does not thereby waive his objection, nor is he estopped from saying that the arbitrators have exceeded their authority by awarding on the matter. Davies v. Price (Ex. Ch.), 84 Law J. Rep. (u.s.) Q.B. 8. (D) Award. (a) Form and Validity. A railway company gave to the plaintiff, who was owner and occupier of a leasehold hotel, the usual notice to treat, and it was referred to arbitration to ascertain the value of the premises, and the damages sustained by the execution of the works, and the com- pensation to be paid by the company in respect thereof. The arbitrator awarded 2,700/. as the com- pensation to be paid for all the leaseholder's interest, of whatever nature, in the leasehold. Upon a bill by the leaseholder for a specific performance, — Held, that the award was bad, and the bill was dismissed with costs. Wak(^ld v. the Llanelly Rail, and Dock Co., 3 De Gex, J. & S. 11 ; 34 Beav. 246. By a Judge's order, after issue joined, an action was referred to a lay arbitrator, who by his award ordered " that there should be a verdict for the plaintiff for 11. 9s. lid.":— Held, that although there was no power to enter a verdict, the award was good and an action maintainable upon it, for the award must be read as an expression of the arbitrator's opinion that the plaintiff was entitled to the sum mentioned, and not as an award that a verdict should be entered for that sum. Everest v. Ritchie, 31 Law J. Rep. (n.s.) Exch. 360 ; 7 Hurls. & N. 698. An action for use and occupation having been referred to the Master, under the 17 & 18 Vict, c. 125. s. 3, the Master certified that there was nothing due from the defendant to the plaintiffs, and on the ARBITRATION; (D) Awaed. 21 same day wrote a letter to the defendant's attorney, which he shewed to the plaintiff's attorney, and in which " in order to carry out the friendly spirit of arrangement which appeared to exist between the parties," he gave his opinion on several questions raised upon an agreementbetween the defendant and some third parties "as founded upon the evidence given in the cause referred," and in order " to assist the parties, and to prevent the necessity for future litigation ": — Held, on motion to set aside the certi- ficate on the ground that it appeared ftom the arbi- trator's letter that he was mistaken in the law, that, whether he were mistaken or not, the letter formed no part of the award, and could not be looked at by the Court. Hogge v. Burgess explained. Holgate v. Killick, 31 Law J. Rep. (n.s.) Exch. 7; 7 Hurls. & N. 418. Where an award is valid in form, and is made on all the matters referred and on no more, and is intended by the arbitrators to express their decision, an objection that the arbitrators had made their award without exercising their own judgment, but according to the opinion of a third person by whose decision they had beforehand agreed to be bound, cannot be taken on a plea of rod tUl agard to an action on the award, but ought to be raised on a motion to set the award aside. Whitmore v. Smith {Ex. Ch.), 31 Law J. Rep. (n.s.) Exch. 107 ; 7 Hurls. & N. 509. A dispute arose between the plaintiff and the de- fendants, as to whether a certain carriage archway had been constructed in conformity with an agreement . entered into between them. An action having been brought, by an order of Nisi Prius the cause was referred to an arbitrator, who was empowered to direct, if he found for the plaintiff, what should be done to make the carriage archway in conformity with the agreement.' The arbitrator found for the plaintiff, without awarding any damages, and directed certain alterations to be made in the archway. The plaintiff signed judgment for the amount of the damages claimed in the declaration: — Held, that the plaintiff was entitled only to nominal damages. Brown v. the Somerset and Dorset Kail. Co., 34 Law J. Rep. (if.s.) Exch. 152. In an application to set aside an award, it appeared that the dispute arose respecting the condition of a cargo of rape-seed, which had been shipped and for- warded to one of the parties upon the terms contained in a sold-note, which provided that any dispute arising out of the contract should " be settled by arbitration in London in the usual way." Two arbitrators were chosen, one for each side, and they being unable to agree, appointed an umpire according to the terms of the reference. The umpire made his award after looking at samples furnished to him by the arbitrator representing th^ party in whose favour he decided, without any communication with the other party, after communicating directly with some of the wit- nesses, and without giving the party against whom he decided any opportunity of being heard. In so doing, he stated (in an aflidavit filed by him) that he had followed the usual and ordinary practice in such cases. Evidence was also given by a number of mer- chants engaged in the oil and seed trade that it was the usual and ordinary practice in arbitrations in the oil and seed trade, and also in mercantile arbitrations generally, for an umpire, in case he sees fit, to inspect samples produced on behalf of one of the parties, without any communication with the other, to com- municate directly with witnesses without notice to the parties, and to make his award without giving the parties or their arbitrators an opportunity of being heard: — Held, that such an usage, as tending to allow parties to be decided against without being heard, was contrary to the principles of equity and justice, and that the award could not therefore be supported. InreBrooh, 33 Law J. Rep. (n.s.) C.P. 246; 16 Com. B. Rep. N.S. 403. (6) Setting aside amd remitting. An award was made on the 9th of June, 1859, under a submission to arbitration, which, however, contained no agreement to make it a rule of Court. The plaintiff objected to the award ; but he did not make it a rule of Court, or take any measures to have it set aside prior to an action which was brought against him on the award in December, 1859. He pleaded nul tiel agard to the action ; but his j)lea having been overruled by the Exchequer Chamber, and judgment entered against him, he then filed a bill to have the award cancelled and for an injunc- tion against execution on the judgment: — Held (aflSrming the decision of the Vice Chancellor Wood but diisentiente the Lord Justice Turner), that the plaintiff had by his conduct lost his equity, if ever existing, against the action and against the award. Smith V. Whitmore, 33 Law J. Rep. (n.s.) Chane. 713 ; 1 Hem. & M. 676 ; 2 De Gex, J. & S. 297. A having brought an action against B, and B a cross-action against A, the same and all matters in difference were by a Judge's order, by consent, referred. B died pending the reference, and before administration could be taken out the arbitrator, notwithstanding a protest, proceeded ex parte, and made an award directing payment of a sum of money and costs to A. A had filed a creditors' bill for the administration of B's estate, founded upon the alleged debt under the award : — Held, on demurrer, that a bill would not lie by B's executor praying that the bill in the creditors' suit might be dismissed and the award set aside. Sa/rding y. Wichham, 2 Jo. & H. 677. The Court of Chancery has no jurisdiction to set aside an award made under a reference of an action at law, whether the same be or be not under the statute, 9 & 10 Will. 3. c. 15. Ibid. It is in the discretion of the Master or other arbi- trator, to whom an action in respect of a claim for work has been referred, to inspect the premises on which the work was done ; and his refusal to inspect is no ground for setting aside his award. Mwndy v. Black, 30 Law J. Rep. (n.s.) C.P. 193 ; 9 Com. B. Rep. N.S. 567. After an arbitrator had made his award, one of the parties discovered that the award had been drawn up by the person who had acted as attorney and advocate for the other party, and that this person had also advised the arbitrator privately in the matter of the award. This was admitted by the arbi- trator, but he positively denied that he had done more than consult the attorney, who was his own ordinary professional adviser, as to the form of the award, or that his decision was in any way influenced thereby. Under these circumstances, the affidavits in exculpation of the arbitrator being very strong, the Court refused to set aside the award. Undei'- 22 ARBITRATION; (D) Award. wood T. the Bedford and Cambridge SaU. Co., 31 Law J. Rep. (n.s.) C.P. 10; 11 Com. B. Rep. N.S. 442. An arbitrator to whom an action for a claim above 201. had been referred as a matter of account, awarded to the plaintiff a sum less than 201., and certified that the action was fit to be brought in a superior Court, but gave no other certificate. The Master having taxed the costs on the lower scale, the arbitrator, on being applied to, on behalf of the plaintiff, stated in effect that he intended by his cer- tificate to give the plaintiff his costs. The Court gave the plaintiff leave at his (the plaintiff's) expense to refer the matter back to the arbitrator. CasieeU V. Groucutt, 31 Law J. Rep. (u.s.) Exch. 361. An agreement of reference in an appeal against a poor-rate, contained a clause enabling the arbitra- tors, at the request of either party, to state a case, to be settled by the umpire, for the opinion of the Court. The arbitrators having disagreed, the umpire made his umpirage, and subsequently, at the request of the appellants, set out the principles upon which he had acted, with a view of enabling the appellants to have the question discussed in Court. Upon a rule calling upon the defendants to shew cause why the umpirage should not be sent back to the umpire, in order that he might state the facts more fully, this Court refused to interfere, as the appellants had had the opportunity of getting a case stated, and, instead of doing so, had taken their chance of getting the umpirage made in their favour. Jn re the London Dock Company v. th£ Trustees of the Parish ofShadwell, 32 Law J. Rep. (k.s.) Q.B. 30. References to the Master under the Common Law Procedure Act, 1854, stand upon the same footing with regard to applications to set aside or send them back for reconsideration as ordinary references. The Court, therefore, will not send an award back to the Master in order that he may state, a case, when at the hearing he declined to state one. Molloway v. Fromeis, 9 Com. B. Rep. N.S. 659. (c) Taking up Award : Moiety of Fee. Where two parties employ an arbitrator, and one pays the arbitrator's fees to enable him to take up the award (there being no event of the award to entitle either party to costs), the party so paying is entitled to recover from the other a moiety of the sum paid as money paid to his use. Ma/raack v. Webber, 6 Hurls. & N. 1. (d) Enlairgmg Time for making. By a submission to arbitration, which might be made a rule of Court, the time for making the award was limited to a day named, or such further day, not exceeding two calendar months from the date of the submission, as the arbitrator might appoint. The arbitration was closed before the day named; and the arbitrator, also before the day named, enlarged the time for making the award, but to a day later than the two months. The arbitrator made his award within the enlarged time, but after the two months: — Held, that the Court or a Judge had power afterwards to enlarge the time for making the award under the 39th section of the 3 & 4 Will. 4. c. 42. Ward v. the Secretary of State for Wa/r, 32 Law J. Rep. (n.s.) Q.B. 53. Where there was cause to believe that an arbi- trator had failed to enlarge the time for makmg hie award within the time provided by the order of refer- ence, and he had refused to give any information as to whether the enlargement had been duly made or not, this Court, upon the application of one of the parties who wished to make the order of reference a rule of Court, ordered the arbitrator to attend before the Master to be examined upon the matter, in order that the order of reference might be made a rule of Court. Roberts T. Emm, 34 Law J. Rep. (n.s.) Q.B. 7. (e) Makimg Award a Rule of Court. Where a decree sanctions a reference to arbitration, and reserves liberty to either party to apply to make the award an order of Court, the application for that purpose should be made upon motion, and not ex parte. Lipscomb v. Palmer, 30 Law J. Rep. (n.s.) Chanc. 169. (/) Enforcing. By the agreement of reference between P and S, costs were in the discretion of the arbitrator. The award directed that 149/. 5s. 7rf., being the costs of the award, should be paid by the parties in the fol- lowing proportions: that 25/. should be paid by P to certain attorneys forthwith, and 124/. 5s. Id., the residue, should be paid by S in like manner, and if P paid any part of the 124/. 5s. Id., that S should repay it to him: — Held, on an application by P for a rule caUing on S to pay the several sums, that as the arbitrator had fixed in the award the amount payable to himself, the matter was too doubtful to grant a rule. ThrelfaU v. Panshawe doubted. Pcur- Tcinsm v. Smith, 30 Law J. Rep. (n.s.) Q.B. 178. If an award finds that the plaintiff is entitled to recover a certain sum from the defendant, the Court will grant a rule ordering the defendant to pay the amount, although the award contains no direction to the defendant to pay the amount, and though, con- sequently, no attachment could issue. Bo^ven v. Bowen, 31 Law J. Rep. (n.s.) Q.B. 193. If a person ordered to pay money under an award satisfies the Court that he has a bona fide claim for a cross-demand larger than the sum awarded, which he might reasonably hope to support by way of set-off to an action on the award, the Court will not grant a rule ordering him to pay the sum awarded,^— Semftfe, otherwise if the set-off be one cognizable only in equity. Svjayne v. White, 31 Law J. Rep. (n.s.) Q.B. 260. It is no answer to a rule to pay money pursuant to an award, that the party in whose favour the award is made has, since the award, been committed to take his trial for perjury committed during the arbitration. Woollen v. Bradfmd, 33 Law J. Rep. (n.s.) Q.B. 129. The Court will not make absolute a rule nisi on a defendant to pay money pursuant to an award unless there has been personal service, or unless it be shewn that personal service cannot be effected because the party is keeping out of the way to avoid service. An acceptance by the attorney of the defendant of the service of the rule nisi, and a consent by him to the rule being made absolute, are not for this purpose equivalent to personal service. Evans v. Prosser, 34 Law J. Rep. (n.s.) Q.B. 256. The Court refused a rule for payment of money ARBITRATION^ARREST. 23 under an award, where it appeared that the costs (unascertained) of certain proceedings in Chancery- were payable to the other party under the same award. Lamle v. Jones, 9 Com. B. Rep. N.S. 478. (E) Costs. {a) To abide the Event. Where an action for alleged breaches of covenant in a farming lease, in which the plaintiff claimed 100/. damages, was, after pleas but before issue joined, by a Judge's order and by consent, referred to arbitration, " the costs of the reference to abide the event," and the arbitrators found in favour of the defendant on all the alleged breaches, with the exception of one, on which they awarded Ifls. damages to the plaintiff, — Held, that the event of the reference was in favour of the defendant, and that the plaintiff was not en- titled to his costs. Kelcey v. Stwpples, 32 Law J. Rep. (n.s.) Exch. 6 ; 1 Hurls. & C. 576. An action of slander, after issue joined and before trial, was by agreement referred to arbitration, "the costs of the cause to abide the event of the award." The arbitrator found one issue for the plaintiff, with 20s. damages: — Held, that the plaintiff was entitled to the costs of the cause. Prean v. Swrgent, 32 Law J. Rep. (n.s.) Exch. 281 ; 2 Hurls. & C. 293. (6) Taxation of. An action of trespass was referred, by consent, at Nisi Prius, and by an order of Nisi Prius, drawn up in the usual form, the verdict was, by consent, entered for the plaintiffs, with damages ids., costs 40i. ; and, by the like consent, it was also ordered that the costs of the reference and award should be paid by the defendants. The award having been made, the Master taxed the costs of the action as between party and party on the ordinary scale ; and then proceeded to tax the costs of the reference and award on the same scale, but the plaintiffs objecting that the proceedings on the reference were virtually under the Lands Clauses Consolidation Act, and that the costs ought to be taxed on the scale usually allowed in proceedings under that statute, the Master adjourned the taxation to enable the plain- tiffs to apply to the Court : — Held, that the costs the defendants had stipulated to pay, and which they were bound to pay under the order of Nisi Prius, were ordinary costs as between party and party, and ought to he taxed on such and on no other scale. Eccles v. the Mayor, Aldermen and Burgesses of BlacMmm, 30 Law J. Rep. (n.s.) Exch. 358. And per Martin, JB. and SramweU, B., that the Court ought not to be called on to give" directions to the Master how to tax, but that the Master should announce the principle on which he taxes, and then the Court may be called on to review his taxation. Ibid. '[Of (A) C P E ARREST. Garnishee, see Attachment Of Debts.] By Police - Officer not havino the Warrant in his Possession. On Ca. Sa. for more than is due. Under Absconding Debtors' Arrest Act. Pbiviiege from. DlSCHAROB FROM. Evidence in Justification of the Arrest. ARMY PRIZE. The law relative to the payment of money belong- ing to deceased officers and soldiers of Her Majesty's land forces amended by 27 & 28 Vict. c. 36. (A) Bt Pomoe-Offioer not having the Warrant in his Possession. A police-officer arrested W G under a warrant for disobedience to a bastardy order, but at the time of doing so, the warrant was actually at the police- station, and not in the possession of the officer, although it had been so previously: — Held, that the arrest was illegal, as the officer ought to have had the warrant ready to be produced at the time of the arrest, if required by W G. QalUard v. Laxton, 31 Law J. Rep. (n.s.) M.C. 123; 2 Best & S. 363. After the arrest of W G the appellant assaulted the officer. Two informations were laid against the appellant, the one charging him with the rescue of W G, and the other with an assault upon the police- officer. At the hearing before the magistrates the former information was abandoned : — Held, that this did not in any way prevent the officer from pro- ceeding upon the latter information. Ibid. (B) On Ca. Sa. foe more than is due. An action will lie against a judgment creditor for maliciously and without reasonable or probable cause indorsing a writ of ca. sa., issued on such judgment, with directions to levy a larger sum than due, and causing the debtor to be arrested thereunder; and it is not necessary to allege that the proceedings have terminated in the plaintiff's favour, or that the illegality of the arrest should have been ascertained before the action by the debtor's obtaining an order of a Court or Judge for his discharge from custody, as such illegality must depend altogether on the amount for which it was made being greater than the sum due, which is a fact to be only conclusively decided by a jury. Oilding v. Byre, 31 Law J. Rep. (S.a.) C.P. 174; 10 Com. B. Rep. N.S. 592. (C) Under Absconding Debtors' Arrest Act. Where a debtor is arrested on a warrant granted under the Absconding Debtors' Arrest Act, 1851 (14 & 15 Vict. c. 62), and the last of the seven days after the date of such warrant is Good Friday, and the offices of the Court are therefore closed until the following Wednesday, the creditor has such Wed- nesday to issue the writ of ca/pias required by sec- tion 1. of the said act. Sughes v. Griffith, 32 Law J. Rep. (n.s.) C.P. 47; 13 Com. B. Rep. N.S. 324. Qucere — Whether a writ of capias issued after the time required by the Absconding Debtors' Arrest Act, and upon the same materials as those on which the warrant had been obtained under that act, can be supported as an independent writ, if the inten- tion of the debtor to leave the country continues. Ibid. 24 ARREST— ASSAULT. The proceeding by warrant, under the Absconding Debtors' Arrest Act (14 & 15 Vict. u. 52), is ojjly auxiliary to that by capias, under the 1 & 2 Vict. u. 110, and the validity of the capias is independent of the proceedings under the warrant, Williams v. Gibbon, 33 Law J. Eep. (n.s.) Q.B. 33; 4 Best & S. 617. Where, therefore, a defendant has been arrested under a warrant, and is discharged at the end of the seven days, he may be arrested again on a capias issued under a Judge's order made on a sufficient affidavit, although it was sworn before the lapse of the seven days. Ibid. Masters v. Johnson overruled. Ibid. (D) Privilege from. [See7nrc/eTO«,posi, Attorney AND Solicitor (C).] An insolvent debtor is privileged from arrest when attending or returning from the Court in which his petition is heard, although on the day he was arrested the consideration of the final order was adjourned sine die. ChoMvin v. AlexancLre, 31 Law J. Eep. (n.s.) Q,.B. 79; 2 Best & S. 47. The deputy coroner for a county, while on his way to hold an inquest, is privileged from arrest on civil process. Ex parte the Deputy Coroner for the County of Middlesex, 30 Law J. Rep. (n.s.) Exch. 77; 6 Hurls. & N. 501. If arrested under such circumstances, the Court will order his discharge ; no rule need be drawn up. Ibid. (E) Discharge from. W was adjudicated bankrupt in April, 1857. He did not then surrender, but went abroad for some years, coming back to England from time to time under a feigned name, and communicating with some of his assignees. In March, 1863, while in England, he was arrested on a claim of debt for 60,000i on a capias to hold to bail, issued pursuant to a Judge's order made on the ground that the defendant was about to leave the country. The defendant surrendered in the bankruptcy in July, 1863. The plaintiff had in 1858 applied to the Commissioner of Bankrupts to admit the alleged debt as a claim, but the Commissioner had refused on the ground that the debt was for money lent by a banking company, which was not a legal company because it had not paid up a sufficient portion of the subscribed capital. The defendant swore that he did not intend to leave the country at the time of his arrest nor since, but purposed to remain in England to assist his assignees. He also stated that his health was suffering seriously from the confine- ment. The defendant had not passed his last examination ; — Held, that the defendant was not entitled to be discharged from custody. Steward v. Wcmgh, 33 Law J. Rep. (n.s.) Q.B. 86. (F) Evidence in Justification of the Arrest. The defendant was arrested by a bailiff of a county court, under a warrant of that Court good on its fece. He assaulted the bailiff in resisting the arrest. On an indictment against him for a common assault on the bailiff, it was held, that it was not necessary to prove the proceedings in the county court, but that proof of the warrant alone was suffi- cient to shew that the officer was justified in arrest- ing the defendant, and to sustain a conviction of the defendant for the assault. R. v. Dams, 30 Law J. Rep. (N.s.) M.C. 159 ; 1 L. & C. 64. On the trial of a prisoner for wounding a con- stable who had arrested him on suspicion of felony, the following question, in order to assist in shewing that there were reasonable grounds for the arrest, was put to the constable on the part of the prosecu- tion, " What do you know had been the prisoner's previous character?" The answer was, " I know the prisoner to be a very bad character": — It was held by the Court that this question ought not to have been put in the examination in chief, although it was open to the prisoner to have cross-examined the constable as to the grounds of his suspicion. B. v. Turberfield, 34 Law J. Rep. (N.a.) M.C. 20; 1 L. & C. 495. ASSAULT. [See Arrest (A) and (F). — And see False Im- prisonment.] (A) Consent. (B) Conviction for. (C) Justice's Certificate of Dismissal of Charge. (D) Pleading in Actions for. (E) Mis-trial and Venire de novo. (A) Consent. If a girl of ten years of age consent to indecent liberties being taken with her the person who takes them cannot be convicted of an assault. R. v. Johnson, 34 Law J. Rep. (n.s.) M.C. 192 ; 1 L. & C. 632. (B) Conviction for. The first count of an indictment was for unlaw- fiilly and maliciously inflicting grievous bodily harm on the prosecutor ; the second for assaulting and un- lawfully wounding and ill-treating the prosecutor, and thereby occasioning him bodily harm. The ver- dict was, guilty of common assault ; — Held, that this verdict sustained the conviction on the second count. R. v. OUver, 30 Law J. Rep. (n.s.) M.C. 12; Bell's C.C. 287. The defendant was indicted, in one count, for assault, and unlawfully and maliciously inflicting grievous bodily harm ; and, in another count, for a common assault. The jury returned, as their verdict, that they found the defendant guilty of an aggravated assault, but without premeditation, and that it was done under the influence of passion: — Held, that the Judge who tried the case was justified, on this finding, in directing a verdict of guilty to be entered on the first count. R. v. Sparrow, 30 Law J. Rep. (n.s.) M.C. 43 ; Bell's C.C. 298. On a summons under the Municipal Corporation Act, for assaulting a constable in the execution of his duty, the accused cannot be convicted of a common assault under 24 & 26 Vict. c. 100. s. 24. R. V. BnchhaM, 33 Law J. Rep. (n.b.) M.C. 156. (C) Justice's Certificate of Dismissal of Charge. The plaintiff, having laid an information for an ASSAULT— ATTACHMENT. 25 assault under 9 Geo. 4. c. 31, took out a summons, which was served on the defendant, but afterwards, and before the day for hearing, the plaintiff, by his agent, gave notice to the defendant that the sum- mons was withdrawn, and that he need not attend, and the plaintiff also gave notice to the magistrates' clerk that he would not attend. The defendant, how- ever, attended in obedience to the summons, and claimed to have the information dismissed and a certificate of dismissal granted, although the plaintiff was absent. The magistrates having accordingly dis- missed the complaint, and granted a certiiicate shewing these facts, — Held, that such dismissal was "a hearing" of the case' within section 27, and that, therefore, the certificate was a bar to an action for the assault. Bradshaw v. VoMghton, 30 Law J. Rep. (n.s.) C.P. 93; 9 Com. B. Rep. N.S. 103. Where on a complaint for a common assault by the party aggrieved, the Justices, under the 9 Geo. 4. c 31. 8. 27, dismiss the complaint as not proved, their certificate of dismissal is, under section 28, a bar to an indictment for unlawfully wounding, and for assault causing actual bodily harm, arising out of the same circumstances. S. v. BiringUm, 31 Law J. Rep. (n.s.) M.C. 14 ; 1 Best & S. 688. (D) Pleadino in Actions ron. If A wrongfully, after request to give it up, detain a chattel from B the owner entitled to possession, B in law has the possession, and A's wrongful deten- tion against B's request is no possession, but is the same violation of the right of property as the taking the chattel out of the a£tual possession of B, and B (or his servants acting under his command) is justi- fied in using force sufficient to defend his right and re-take tlie chattel. Blades v. Siggs, 30 Law J. Rep. (n.s.) C.P. 347 ; 10 Com. B. Rep. N.S. 713. Declaration for assault and battery. Plea, that the plaintiff had wrongfully in his possession dead rabbits belonging to E, and being about to carry them away, the defendants, as servants of E, and by his command, requested the plaintiff to refrain, which he refused to do, and thereupon defendants, as ser- vants of E and by his command, gently laid their hands on the plaintiff and took the rabbits from him, using no more force than was necessary; — Held, a good plea, although it did not allege how the plain- tiff took the property of E, and became the holder thereof. Ibid. (E) Mis-trial and Venire be novo. On an indictment for an assault, occasioning actual bodily harm, the jury brought in a verdict, guilty of a common assault. The chairman, mistaking the law, told the jury that they could not find such a verdict on that indictment. The jury then found the pri- soner guilty simply. The verdict was entered as a verdict of guilty of the aggravated assault, and a sen- tence of imprisonment with hard labour was passed : — Held, that the first verdict was not tantamount to a verdict of acquittal ; that the chairman ought to have taken the first verdict; that the second verdict could not stand ; that there had been a mis-trial, and that there must be a veni/rt de novo. R. v. Teadon, 31 Law J. Rep. (n.s.) M.C. 70 ; 1 L. & C. 81. ASSIGNMENT. [See Debtoe and Creditor. Notice of an equitable assignment having been given to the trustees before the fund actually reached their hands, it was held to give priority over a sub- sequent assignment of which earlier notice was given. Buller V. Plnnkat, 30 Law J. Rep. (n.s.) Chanc. 641 ; 1 .To. & H. 441. As between two equitable assignees the time of giving notice to a person who afterwards becomes trustee is of no importance, if both notices are given before the relation of trustee and ceatui que trust is created. Wehster v. Webster, 31 Law J. Rep. (n.s.) Chanc. 655 ; 31 Beav. 39. As between two assignees of a possible future fund, notice, before the fund has come into existence, to a person who is merely a potential future trustee or stakeholder is ineffectual to disturb the usual order of priorities. Somerset v. Cox, 33 Law J. Rep. (n.s.) Chanc. 490; 33 Beav. 634. An officer in the armyupon his marriage covenanted with trustees that any money which should be received from the sale of his then or any future commission, &c., should be paid to the trustees upon the trusts of his marriage settlement. He subsequently became indebted to the regimental agents; he then gave them authority to apply for the sale of his commission, and he charged the proceeds with the payment of the debt. The trustees shortly afterwards gave the agents notice of the settlement, and of their claim to the proceeds. The commission was subsequently sold and the money was paid to the agents. Upon a bill by the trustees of the settlement, — Held, that the charge of the agents upon the proceeds arising from the sale of the commission was entitled to priority over the settlement ; since, if notices given before receipt of the sale moneys were to be regarded as effectual, the army agents had notice of their own security before receiving any notice of the settlement ; and if as ineffectual, then the first notice after the receipt of the sale moneys, and therefore the first effectual notice, was also that of their own claim. Ibid. ATTACHMENT. [For non-payment of costs, see Divorce. And see Legacy Duty— Attornet and Solicitor (D) (*) (1) (iii).] (A) For Contempt. (B) Foe disobeyino Rule to pay Money. (C) Rule for, when absolute in first In- stance. Digest, 1860-65. (A) For Contempt. The sheriff having seized goods under a writ of fi. fa. against A, B claimed them, whereupon an inter- pleader summons was taken out by the sheriff and served on B, notwithstanding which B took the goods forcibly out of the possession of the officer in whose custody they were, and sold them : — Held, that B wasguilty of contempt; and the Court made absolute a rule for an attachment against him, not to be en- forced if he paid the amount of the execution into B 26 ATTACHMENT— ATTEMPTS TO COMMIT FELONY. Court. Cooper v. Asprey, 32 Law J. Eep. (n.s.) Q.B. 209; 3 Best & S. 932. Senible — That if no interpleader summons had been taken out, B would have been guilty of contempt at common law in taking the goods out of the custody of the sheriff. Ibid. (B) For disobeying Rule to pat Monet. A party who had been ordered by rule of a Court of law to pay a sum of money executed a deed of assignment for the benefit of his creditors, under section 192. of the Bankruptcy Act, 1861. The party not paying the money on demand made after the assignment, the Court made absolute a rule for an attachment against him for the non-payment ; but directed that the attachment should not issue until the leave of the Court of Bankruptcy had been obtained. Welch v. BucJe, 31 Law J. Rep. (n.s.) Q.B. 263. (C) Rule for, when absolute in first Instance. Where in pursuance of the 13 & 14 Vict. c. 97. s. 8. a rule nisi for the payment of a sum of money to the Receiver General of Inland Revenue as legacy duty has, on no cause being shewn, been made abso- lute against the person withholding such duty, and both rules have been personally served, the Court will grant a rule for an attachment absolute in the first instance. In re Evans, 3 Hurls. & C. 562. ATTACHMENT OF DEBTS. (A) What Debts mat be attached and bt WHAT CODRTS. (B) Foreign Attachment — Custom of Citt OF London. (C) Discharge of Garnishee. (D) Arrest of Garnishee. (E) Bankruptct OF Debtor before Payment BY Garnishee. (A) What Debts mat be attached and bt what Courts. [BurUm y. Soberis, 8 Law J. Dig. 36; 6 Hurls. & N. 93.] A party in an interpleader issue who has obtained an order for his costs under the 1 & 2 Will. 4. c. 58. 8. 7. is a judgment creditor within the garnishee clauses (sections 60. and 61.) of the Common Law Procedure Act, 1864 (17 & 18 Vict. c. 125). A judgment creditor is not prevented from attaching a debt due to his debtor by the fact that the garnishee is taken in execution for the debt. Sartley v. Shemwell, and Marples v. Hartley, 30 Law J. Eep. (n.s.) Q.B. 223; 1 Best&S. 1. Where an Order in Council has directed that the Common Law Procedure Act, 1854, shall apply to an inferior Court of record, that Court has power, under section 60, to issue garnishee orders in respect of judgments obtained in such Court. Dauier v. Barnes, 31 Law J. Rep. (n.s.) Q.B. 302. (B) Foreign Attachment — Custom of City of London. The custom of the City of London, in reference to foreign attachment, cannot be pleaded, as a custom, on a plaint being entered in the Mayor's Court, to attach a debt due to the defendant from a third person, on the bare fact of the latter being found within the jurisdiction, although none of the parties are either citizens or resident in the City, and neither the original debt nor that of the garnishee accrued within the City ; for such a custom is bad. Cox v. th£ Mayor and Aldermen of the City of London, 32 Law J. Rep. (n.s.) Exch. 64; 1 Hurls. & C. 338 — affirmed in Ex. Ch., 32 Law J. Eep. (n.s.) Exch. 282 ; and by the House of Lords, 36 Law J. Rep. (n.s.) Exch. 225. (C) Discharge of Garnishee. A judgment creditor, who has arrested his judg- ment debtor on a ca. sa., and detains him in execu- tion, cannot proceed under the garnishee clauses of the Common Law Procedure Act, 1854 ; and, there- fore, to a declaration against the garnishee in the form prescribed by the Reg. Gen. Mich. Vac, 1854, it is a good plea, that the plaintiff had issued a ca. sa, against the debtor, who was still in execution at the plaintiff's suit. Jawalde v. Parker, 30 Law J. Rep. (n.s.) Exch. 237; 6 Hurls. & N. 431. (D) Arrest of Garnishee. A garnishee, against whom a judgment creditor has obtained leave to proceed by writ, calling upon him to shew cause why there should not be execution against him under the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 128. s. 64, cannot be held to bail or arrested under stat. 1 & 2 Vict. c. 110. s. 2. Momer v. Zuff, 3 Best & S. 818. (E) Bankruptcy of Debtor before Payment by Garnishee. If a judgment creditor obtain an order under section 61. of the Common Law Procedure Act, 1854, attaching a debt due to the judgment debtor, and, subsequently, another order under section 63, directing the garnishees to pay the amount attached to the judgment creditor, or that execution may issue against them, and the judgment debtor become bankrupt before payment by the garnishees or exe- cution levied on them, the judgment creditor cannot avail himself any longer of the order, but must share equally with the other creditors; as he is only in the situation of a creditor having security under section 184. of the Bankruptcy Consolidation Act, 12 & 13 Vict. c. 106, and not within the exception to that section as a creditor having a mortgage or lien. Til- bury V. Brown, 30 Law J. Rep. (n.s.) Q.B. 46. ATTEMPTS TO COMMIT FELONY. [See Jurisdiction ; of Quarter Sessions.] (A) To steal. (B) Indictment. (A) To steal. The prisoner was indicted under the stat. 24 & 25 Vict. c. 96. 5. 57. for breaking and entering a shop, with intent to commit a felony, viz. to steal. It was proved that the prisoner broke in the roof, with ATTEMPTS TO COMMIT FELONY— ATTORNEY AND SOLICITOR. 27 intent to enter and steal, and was then disturbed; but there was no evidence that he ever entered the shop ; — Held, that the prisoner might be convicted of the misdemeanor of attempting to commit a felony. R. v. Bcdn, 31 Law J. Bep. (n.s.) M.C. 88 ; 1 L. & C. 129. The prisoner was servant to a contractor who supplied meat to the camp at S. The course of business was for the contractor each morning to send by a servant a quantity of meat to the quartermaster- sergeant at the camp, and a soldier from each mess attended. The quartermaster-sergeant had his own scales and weights; with these he and the con- tractor's servant weighed out the proper quantity of meat for each mess respectively, which, after being weighed, was delivered to the soldier in attendance, for the mess. The account of the whole meat so delivered was credited to the contractor as supplied to the Queen. The surplus meat remaining after the messes had been supplied used to be taken back by the contractor's servant. On one occasion of a weighing the prisoner being in charge of the meat, and being the person who put the weights into the scale, fraudulently and with intent to cheat, put a false weight into the scal^ instead of the true one of the quartermaster-sergeant ; so that when all the messes had been supplied 60 lb. of meat remained over, instead of 15 lb. A complaint having been made by a soldier of short weight during this weigh- ing, an investigation took place at its close, and the fraud was discovered. The prisoner absconded at the commencement of the investigation. The inten- tion of the prisoner was to steal the difference between the just surplus of 15 lb. and the actual sur- plus of 60 lb. Nothing remained to be done by him to complete his scheme, except to carry away and dispose of the meat, which he would have done if the fraud had not been detected : — Held, that on these facts the prisoner was rightly convicted of attempt- ing to steal 45 lb. of meat, the property of the con- tractor. M. V. Oheeseman, 31 Law J. Eep. (s.s.) M.C. 89; 1 L. & C. 140. If a person puts his hand into the pocket of another, with intent to steal what he can find there, and the pocket is empty, he cannot be convicted of an attempt to steal, iJ. v. Collins, 33 Law J. Bep. (n.s.) M.C. 177; 1 L. & C. 471. (B) Indictment. In an indictment for attempting to steal in a dwelling-house, it is sufficient to aver that the pri- soner attempted to steal the goods of A B in the - house of A B, without specifying what the goods were. R. v. Johnson, 34 Law J. Rep. (n.s.) M.C. 24 ; 1 L. & C. 489. ATTORNEY AND SOLICITOR. (A) Articled Clerk. (a) Service vrnder Articles. (5) Order to enrol Articles stamped after Execution. (B) Admission and Re-admission. (C) PowEKS AND Privileges. (D) Duties and Liabilities. (a) In general. (E) (F) (6) Bamma/ry Jurisdiction over. (1) At Lam. ( i ) Suspension for Misconduct, in) Strihvug off the Roll. (iii) Answering Matters of Affi- davit. (2) In Equity. (c) Privileged Oommundcatiom. (d) Negligence. (e) Delicery of Papers. Profits. Dbalings with Client. Bill of Costs. (a) Delivery of Bill. (d) Taxation of Bill. (1) In general. (2) When granted. (3) Costs of Taxation. (4) Practice. Lien for Costs. Set-off of Costs. Order for Payment of Costs. Rboovert of Costs by Uncertificated Attorney. (A) Articled Clerk. (a) Service under Articles. [See also (5) Order to ervrol Articles stamped after Execution.'] Where articles of clerkship of an attorney had not been stamped within six months from their exe- cution, but had been subsequently stamped under the 19 & 20 Vict. c. 81. s. 3, and the clerk had served under them from their execution, the Court allowed the service to be reckoned ftopi the date of the execution, and not from the date of the filing of the affidavit required by sections 8. and 9. of 6 & 7 Vict. c. 73, it satisfactorily appearing that the non- payment of the stamp-duty on the execution arose entirely from some unforeseen emergency, and was not intentional on the part of the attorney. Ex parte Bishop, 30 Law J. Eep. (n.s.) C.P. 48 ; 9 Com. B. Eep. N.S. 150. W was articled as a clerk to his father, an attorney, and served till the death of his father on the 23rd of January, 1858. He continued to attend at the office and to work at the business there till the 20th of February, when his articles were assigned to C, who had succeeded to the business of his father, and under whom he continued to serve: — Held, that the period between the death of the father and the assignment of the articles to C could not be reckoned in the computation of the five years required by the 6 & 7 Vict. c. 73. s. 12. Ex parte Wallis, 31 Law J. Rep. (n.s.) Q.B. 176 ; 2 Best & S. 416. The managing clerk to an attorney, upon the occasion of the latter dying, leaving a widow and a young son unable to take up the business, gave his services to them, and succeeded in keeping the busi- ness together ; and the son, as soon as he was ad- mitted an attorney, gave the clerk his articles, and promised that they should be duly stamped, the widow promising to pay the stamp-duty. Under these circumstances, the clerk became bound to the son by articles duly executed on the 11th of June, 1858. After the expiration of the time allowed by 28 ATTORNEY AND SOLICITOR; (A) Articled Clerk. law for stamping and enrolling the articles, and not before, the clerk discovered that the duty had not been paid; but he continued to serve under the articles, and was in constant belief that the widow would perform her promise, until Jnnuary, 1862, when he petitioned the Lords of the Treasury, who permitted the articles to be stamped on payment of the duty and 40/. penalty, pursuant to the 19 & 20 Vict. c. 81. s. 3. This was done, and the articles enrolled in March, 1862. Under the above circum- stances, the Court of Queen's Bench refused an application in Easter Term, 1862, that the service under the articles might date from their execution, on the ground that the clerk went on serving, having himself full knowledge that the articles were not stamped and enrolled {Coc^um, C.J. doubting). £x parte Brederij 31 Law J. Rep. (n.s.) Q.B. 184; 2 Best & S. 649. But the Court of Common Pleas granted an appli- cation, made on behalf of the clerk in June, 1862, that the service under the articles might be computed from the date of their execution. Ex parte Breden^ 31 Law J. Rep. (s.s.) C.P. 321 ; 12 Com. B. Kep. N.S. 351. Although the Treasury have consented to accept the penalty and stamp articles of clerkship more than six months after execution, under the 19 & 20 Vict, c. 81. ti. 3, yet, both for the purpose of protecting the revenue and ensuring the respectability of those who are to become attorneys, before this Court will allow the service under the articles while unstamped and unenrolled to count, pursuant to the 6 & 7 Vict. c. 73. s. 9, the circumstances must be shewn to be such as satisfactorily to account for the omission to pay the stamp-dutv and enrol the articles in due time. Ex parte Wilson, 33 Law J. Rep. (n.s.) Q.B. 89 ; 4 Best & S. 889. In December, 1859, W entered into articles for five years with S, an attorney, the articles being duly stamped and enrolled. In May, 1861, S got into difficulties and was obliged to go abroad ; while S was abroad, W agreed with Messrs. B to serve the rest of his five years with them, and get his articles assigned to them ; S returned in June and assented to this, and W went into Messrs. B's service, and in October, 1861, signed an agreement with them, to the above effect, which was thea handed to them. This agreement was not stamped, as it was anticipated that the original articles would be assigned. S however ultimately refused to assign them, and the agreement of October, 1861, could not then be stamped without paying the penalty of 10^., which W at that time was not in a position to afford. In Hilary Term, 1862, S was struck off the roll of attorneys ; and on the 13th of May, 1862, W was by rule of Court discharged from his articles to S. In July, 1863, it was discovered that through inadvertence Messrs. B had not signed the agreement of October, 1861, but they afterwards signed it; and the penalty having been paid and the agreement stamped, the Court, on application in Michaelmas Term, 1863, allowed it to be enrolled as articles of clerkship, and the service under it to date from the 13th of May, 1862, the date when W was discharged from his former articles. Ibid. An articled clerk having previously to his becom- ing articled, served for ten years as an attorney ^8 clerk, is entitled to be admitted after three years' service as an articled clerk under section 4. of the 23 & 24 Vict. c. 127, although the two services are not immediately consecutive ; and the Court directed that an articled clerk should be examined for his admission in a case in which there had been an interval of seven years between the two services. Ex parte Vosper, 33 Law J. Rep. (n.s.) Q.B. 113; 4 Best & S. 901. What is sufficient service under articles of clerk- ship to an attorney must depend on the circum- stances of each particular case, and the Court will not lay down any general rule. In re Duncan, 33 Law J. Rep. (n.s.) Q.B. 190 ; 5 Best & S. 341. *■ Supervision and control " of the Master is to be understood in a relative, not an absolute sense. Ibid. An articled clerk, having served part only of the five years under his articles, after the expiration of the five years applied to the Court to be allowed to enter into fresh articles, and to count the time actually served as part of the necessary time of service. The Court refused to make any order; overruling Ex parte Smith (4 Best & S. 993) on this point. Ex parte Keddle, 84 Law J. Rep. (n.s.) Q.B. 136. A clerk, under articles for five years, having served for two years and a half, was incapacitated by ill health from serving for more than a year ; he then resumed service. Before the expiration of the five years, he applied to the Court that the interval dur- ing which he had been unable to serve might be allowed to count as actual service. The Court refused the application as premature. Ex parte Bogers, 34 Law J. Rep. (n.s.) Q.B. 136. Where an articled clerk had served for nineteen months under his articles, and had then been com- pelled from illness and other causes to be absent for more than sixteen months, this Court permitted him to be discharged from the old articles and to serve the same master under new ones, for such a period as with the time during which he had already served would make up the full period of five years. Ex parte Be Jivas, 34 Law J. Kep. (n.s.) Q.B. 7; 4 Beat & S. 992. (5) Order to enrol Articles stamped after Exeeution. H entered into articles of clerkship as an attorney with his- father, and duly served his clerkship for the five years from their execution. H did not know till nearly the end of his time that it was necessary that the articles should be stamped and enrolled ; after his service was out they were handed to him by his father, who had always kept possession of them, and being unstamped, on application to the Lords of the Treasury, they permitted them to be stamped on the payment of 501. penalty, pursuant to the 19 & 20 Vict. c. 81. s. 3. The father made affidavit, that he omitted to have the articles stamped and enrolled within six months of the execution, from his being " wholly without the means to pay the stamp-duty, and because bethought that under the above section they could be afterwards stamped on the payment of apenalty; that he had no preconceived plan to article his son speculatively, but solely with the intention of ultimately stamping and enrolling the articles." Under the above circumstances, the Court allowed the articles to be enrolled and the service under them to be computed from the date of their execution on the authority of Ex parte Bishop (ante, {a) Service under Articles): Crompton, J. dissenting. Ex parte ATTORNEY AND SOLICITOR; (C) Powers asd PEiviLBaES. 29 Eerhert, 31 Law J. Rep. (n.s.) Q.B. 33 ; 1 Best & S. 825. The Court will not order articles of clerkship to be enrolled and the service to count from the time of the execution, where the articles have been stamped after the six months on payment of a penalty by the permission of the Treasury, under the 19 & 20 Vict. c. 81. 8. 3, unless the delay in payment of the duty be satisfactorily accounted for. Ex parte Edwards, 32 Law J. Rep. (n.s.) C.P. 213. A father and son executed a mortgage for 5001., the mortgagee advancing only 400Z., and agreeing to advance the remaining lOOi. shortly afterwards, and the father promised the son that he should be articled out of such 1001. as soon as it could be procured from the mortgagee. It never was procured ; but the son, upon applying for it to the solicitor of the mortgagee, was told that as the money would probably be ob- tained in a month or six weeks, he had better article himself, and the articles could be stamped within a few months after they were executed. The son, acting on this Eidvice, articled himself to an attorney on the 1st of November, 1861, and some time after- wards, on finding that the mortgagee would not make the advance, he attempted to raise the money required for stamping the articles from another person, but did not succeed in getting it until February, 1863, when the articles were stamped by permission of the Lords of the Treasury, on payment of a penalty of ZOl. The Court, being of opinion that the clerk at the time he articled himself had not any reasonable expecta- tion that the money would be forthcoming, refused to order the articles to be enrolled and the service to date from the time of their execution. Ibid. The stamping of articles of clerkship to an attorney after their execution on payment of the duty and a penalty, under the statute 19 & 20 Vict. c. 81. s. 3, does not place the clerk in the same position as if the duty had been duly paid at the time, and the articles enrolled under the 6 & 7 Vict. c. 73 ; and the Courts before giving effect to articles of clerkship which have been so stamped will inquire into all the surrounding circumstances. Ex parte Belk, 33 Law J. Rep. (n.s.) Exch. 73; 2 Hurls. & C. 737. Where the articles of clerkship were stamped after the expiration of the service under them on payment of the duty and a penalty of 501., and it appeared that the omission to stamp and enrol the articles had arisen from the failure, through want of means, of the father of the applicant to provide a portion of the duty, according to his agreement with his son, on his entering into the articles, and partly owing to the parties having acted under the advice of counsel, the Court refused to allow the service to count from the execution of the articles, but allowed two years of service under the articles. Ibid. The Court Will not allow articles of clerkship to be enrolled nimc pro tunc, and the service under them to be reckoned as from their date, where there has been an omission to cause them to be stamped within the time required by law, even though the Treasury has accepted the stamp - duty, with a penalty, unless it is shewn . that the omission has been the result of some unforeseen emergency, or of the failure of same just expectation. The mere dis- appointment of a vague hope will not suffice. Ex parte Jones, 14 Com. B. Rep. N.S, 301. Articles of clerkship were, by a mere slip, not enrolled within six months. The Court relieved the clerk from the effect of the error. In re FoUett, 30 Beav. 629. (B) Admission and Re-Admission. A person who has been admitted and enrolled an attorney or solicitor of the Courts of the Counties Palatine of Lancaster or Durham before the 23 & 24 Vict, c 127, is entitled to be admitted an attorney of the Court of Queen's Bench, under section 14, without giving a term's notice. In re Watson, 30 Law J. Rep. (n.s.) Q.B. 1. Qwcere — Whether the Court has power to admit an attorney, except during term. Ex parte Steele, 33 Law J. Rep. (h.s.) Q.B. 326. QiKEre — Whether the Court will admit a minor as an attorney under any circumstances. Ibid. There must, at all events, be very urgent neces- sity to induce the Court to interfere in either case. Ibid, An attorney having been struck off the roll in Easter Term, 1869, for misappropriating to his own use money received from a client for a particular purpose, the Court, in Hilary Term, 1865, allowed his name to be restored to the -roll, on affidavits of numerous attorneys to his good character and con- duct in the interval. In re Hobins, 34 Law J. Rep, (n.s.) Q.B. 121. An attorney having been struck off the roll, in order to be called to the bar, was afterwards dis- barred for professional misconduct ; the decision of the Benchers being affirmed, on appeal, by the fifteen Judges. After the lapse of twenty years an application was made on his behalf to be re-admitted an attorney; but the Court refused the application, on the ground that there were no affidavits of pro- fessional persons and others as to his good conduct and character in the interval. In re PyJce, 34 Law J. Rep. (n.s.) Q.B. 121. But upon a subsequent application it appeared that since he was disbarred he had lived a very secluded life ; and he had filed affidavits two months before the application, stating every place at which he had lived, and no affidavits were filed impeaching his character. The Court therefore dispensed with the affidavits usually required of professional and other persons as to his good conduct and character in the interval, and re-admitted him without a re-exami- nation. In re Pyke, 34 Law J. Bep. (n.s.) Q.B, 220 ; 6 Best & S. 703. A solicitor, who had ceased to take out his certifi- cate-in 1853, with the intention of being called to the bar, which he had abandoned, was allowed to renew his certificate without undergoing an examination. In re Sewell, 32 Beav. 475. A solicitor who, by a slip, neglected to produce his eertificate to the Registrar within a month, as required by_ the 23 & 24 Vict. c. 127. s. -21, was relieved from the consequences, and it was ordered that the certificate should have effect from the time of stamping the same. In re Smith, 33 Beav. 248. (C) Powers and Peitiieses. To a declaration by a client against his attorney for negligently conducting the defence in an action of ejectment, the defendant pleaded that the alleged grievances were sustained by the defendant, as such attorney, consenting to a Judge's order, which was 30 ATTORNEY AND SOLICITOR; (D) Duties and Liabilities. set out in the plea, and by which the action of eject- ment was stayed on certain terms therein mentioned, and that the defendant was not bound by any direc- tion from the now plaintiff not to compromise such action, and was as such attorney, and under and by virtue of his retainer, at liberty to conduct such action in such manner as to him should, in the exer- cise of reasonable skill and care, appear to be more beneficial to the interests of the now plaintiff. Aver- ment, that the defendant, in consenting to such Judge's order, acted in good faith, and exercised reasonable skill and care, and that it appeared to the defendant that by so consenting he was acting in the manner most beneficial to the interests of the now plaintiff: — Held, on demurrer, that the plea was a good answer. Chown v. Parrott, 32 Law J. Rep. (U.S.) C.P. 197 ; 14 Com. B. Rep. N.S. 74. Semble — That an attorney has authority from his client to compromise an action under the ordinary retainer, to bring or defend such action unless he be expressly forbidden by the client to do so. Ibid. The plaintiff recovered judgment and took the defendant on a ca. sa.; W, attorney of the plaintiff's father, agreed with the defendant, that on delivery of certain documents he would discharge the defendant ; the documents were delivered, and W gave defen- dant an order of discharge, directed by the plaintiff to his attorney ; the sheriff refused to discharge, as the order was not directed to him: — Held, that the defendant was entitled to his discharge on condition that no actions were brought against the sheriff or any one else, and that the plaintiff's attorney's reme- dies on the judgment should not be prejudiced. Langley v. Headland,, 34 Law J. Rep. (if.s.) C.P. 183 ; 19 Com. B. Rep. N.S. 42. An action was brought to recover the price of a piano. The plaintiff's attorney agreed to settle the action by the return of the piano and payment of costs : — Held, that, in the absence of a distinct pro- hibition from his client, he had authority to do so; and the defendant was entitled to have all further proceedings stayed. Pristwiclc v. Foley, 34 Law J. Rep. (if.s.) C.P. 189; 8. c. now,. Prestvnchv. Poky, 18 Com. B. Rep. N.S. 806. A solicitor on his way to attend a summons at the chambers of one of the Judges in Serjeants' Inn held to be privileged from arrest under an attachment. In re Jewitt, 33 Law J. Rep. (n.s.) Chanc. 730; 33 Beav. 659. (D) Duties and Liabilities. (a) In general. When money, which forms part of a larger sum placed by his client in the hands of a solicitor for purposes of investment, is lent by him on the secu- rity of a mortgage, in which he has affected to act as principal, the client is bound by notice of all the circumstances which come within his (the solicitor's) knowledge. Spaight v. Cowrie; Edwards v. Spaight, 1 Hem. & M. 359. Where in such a case the mortgage debt is after- wards settled upon trusts which are substantially trusts for the benefit of the original mortgagee, the trustees have no higher rights than their cestui que trust had before the settlement. Ibid. , A bill of interpleader, where the whole ground for relief rested on a false allegation of a threat, and intention by one of the defendants to bring an action, was dismissed, and the plaintiff's solicitor who filed the bill being proved to be aware that the allegation was groundless, it was ordered on the petition of one of the defendants, for whom he also acted as soli- citor, that all items in his bill of costs in respect of the interpleader suit be disallowed. Oooh v. the Earl of Rosslyn, in re Boole, 3 Giff. 175. (i) Summary Jurisdiction over. (1) At Law. (i) Suspension for Misconduct. Where an attorney of the Court has been guilty of gross misconduct, the Court will interfere summarily, although the misconduct does not amount to an indictable offence, and arose in a transaction in which the attorney was not acting in that character. In re Blake, 30 Law J. Rep. (K.3.) Q.B. 32; 3 E. & E. 34. B, having previously known an attorney and employed him as an attorney and solicitor, informed him that he had some money to invest, on which the attorney himself borrowed it, on the security of his promissory note and the deposit of a mortgage- deed of an estate in Ireland on which he had ad- vanced a larger sum. The estate coming into the Encumbered Estates Court, the attorney borrowed the deed of B, in order, as he informed B, to sub- stantiate his claim on the estate; he afterwards returned the deed, but by this temporary possession of it was enabled to receive the whole of his advance, which he accoi'dingly received, and appropriated the whole to his own purposes. He told B nothing of the matter, but went on for several years paying him interest on his loan. The attorney, afterwards, became insolvent, and B lost the whole of his prin- cipal. On these facts, the Court suspended the attorney from practising for two years. Ibid, (ii) Striking off the Roll. An attorney having been convicted of embezzle- ment, in July, 1861, and sentenced to seven years' penal servitude, an application to strike him off the roll was held not to be too late in Michaelmas Term, 1862. The rule for that purpose may be served upon the prisoner. In re Thompson, 13 Com. B. Rep. N.S. 288. The Court will not strike an attorney off the roll, where he has become bankrupt, having moneys of a client in his hands, which ought to have been paid over, unless a clear case of fraudulent mis- appropriation be made out against him. In re Sparks, 17 Com. B. Rep. N.S. 727. (iii) Answering Matters of Affidavit. If a rule be obtained against an attorney to answer affidavits and to shew cause why he should not pay a sum of money, and he do not answer or shew cause why he should not pay, the Court, on an affi- davit of service, will make absolute the rule to pay and grant an attachment for not answering, Inre Bluck, 31 Law J, Rep. (n.s.) Q.B. 262. Where an attorney does not appear to shew cause against a rule calling on him to answer the matters of an aflSdavit, the Court will grant a rule to answer within a certain time, and, in default, will issue an attachment, and strike him off the roll. In re ATTORNEY AND SOLICITOR; (E) Pkofits. 31 Worman, 32 Law J. Rep. (n.s.) Exch. 83 ; 1 Hurls. & C. 636. It is no answer to a rule calling on an attorney to answer matters that the applicant has already filed a bill in equity against the attorney for an account in reference to the transactions complained of, even though the proceedings in equity have resulted in a decree against the attorney. Bx pa/rte Thomas, 12 Com. B. Rep. N.S. 705. Where it has been referred to the Master to ex- amine into the charges and to report to the Court, it is not competent to the counsel for the accused to go into the evidence given before the Master; the Court will only look to his report. Ibid. (2) In EguUy. The jurisdicfion of the Court over solicitors as officers of the Court for misconduct is very special, and will not be exercised on an ordinary summons for taxation of a bill of costs. In re Forsyth, 2 De Gex, J. & S. 609. On occasion of the transfer of the securities of first and second mortgagees to a third mortgagee, a sum of money was paid to the solicitor acting on behalf of the first and second mortgagees and the mortgagor on account of his costs, and was added to the mortgage debt. Afterwards he sent in his bill of coats to the third mortgagee, which included charges for business done for the mortgagor, and also for business done for the mortgagees in a comm on law Court. The third mortgagee took out a summons for taxation of the bill: — Held, that he could have no relief upon the application, either under the Solicitors' Act or under the general jurisdiction of the Court. Ibid. (c) PrimUged Communications. Motion that a former solicitor of the plaintiff, who had declined on the ground of privilege to answer to whom he had applied on behalf of the plaintiff, might attend at his own expense before the examiner and answer the question, refused with costs. Mar- riott V. the Anchor Reversionary Co. (Lim.), 3 Giff. 304. The rules of the Court as to privileged commu- nications will not exempt a defendant from answering, who states that his knowledge has been acquired " by virtue of his employment as the solicitor of his client." It must have been acquired by means of confidential communications between the solicitor and client. March v. Keith, 30 Law J. Eep. (h.s.) Chanc. 127 j 1 Dr. & S. 342. Information obtained by a solicitor from a third party, though while acting professionally for a client, is not privileged (overruling Oreenough v. Qashell, 1 Myl. & K. 98). Ford v. Termamt, 32 Law J. Rep. (if .s.) Chanc. 465 ; 32 Beav. 162. ^ (d) Negligence. A receiver was appointed by the Court upon the representation of the plaintiff's solicitor that the re- ceiver had entered into the usual recognizances, which he had not in fact done. A loss occurred, in conse- quence of the receiver's liability being only in the nature of a simple contract debt. The solicitor was, at the instance of a defendant, made personally liable for the loss occasioned by his neglect. Simmons v. Rose; Weeks v. Ward, in re R. A. Ward, 31 Beav. 1. Held, also, that the country solicitor was liable, though the representations were madO by his London agents. Ibid. An attorney is not liable to an action for negligence at the suit of one between whom and himself the relation of attorney and client does not exist, for giving, in answer to a casual inquiry, erroneous in- formation as to the contents of a deed. Fish v. Kelly, 17 Com. B. Eep. N.S. 194. (e) Delivery of Papers. If a solicitor is in custody for debt, he will be ordered to deliver the papers and dociiments of his client to a new solicitor, upon his undertaking to hold them subject to any lien there may be upon them for costs. In re Williams, 30 Law J. Rep. (n.s.) Chanc. 609. The Master of the Rolls decided that the retention of papers by a counsel for fees and by a law-stationer for charges will not entitle a solicitor to his discharge under an attachment for the non-delivery of the papers of a late client ; but, upon appeal to the Lords Justices, it was held that the solicitor, having deli- vered all papers in his possession or power within the meaning of the order, was entitled to his discharge, with costs to him of the appeal. In re Williams, 30 Law J. Rep. (n.s.) Chanc. 610 ; 3 De Gex, F. & J. 104. A client employing a firm of solicitors is entitled to the services of all the members of the firm, and a dissolution of partnership amounts to a discharge of the client. For the purpose of completing any busi- ness in hand at the time of discharging a client, the papers must be given up to his new solicitor, the lien of the former solicitor reviving on the completion of the business. The former solicitor is entitled to have a schedule of the documents so handed over, and the expense of preparing such schedule must fall upon the person requiring the papers. Rawlinson v. Moss, 30 Law J. Rep. (n.s.) Chanc. 797. (E) Profits. Prima facie, the emoluments derived from offices of the character of a clerkship to the guardians of a union do not fall within the ordinary description of profits of an attorney. Collins v. Jackson, Jackson V. Collins, 31 Beav. 645. The profits of the offices of clerkship to poor law guardians, or superintendent registrar of births, &c., treasurer of turnpike trust, stewardship of a manor, treasurership of a charity, and receivership of tithes, at a fixed salary, — Held, to. form part of a partner- ship between solicitors. Ibid. (F) Dbalinos with Client. A contract between attorney and client that the attorney shall advance money for carrying on a law- suit to recover possession of an estate, and that the client shall, if the suit be successful, pay the attorney, over and above his legal costs and charges, a sum according to the benefit to the client from possession of the estate, is void on the ground of maintenance. Eaurley. Sopwood, 30 Law J. Rep. (n.s.) C.P. 217 ; 9 Com. B. Rep. N.S. 566. After the issuing of a writ, the attorney gave the plaintiff the following memorandum, — " I undertake to carry on this action on having cash provided for costs out of pocket, such costs not to exceed \5l., in- 32 ATTORNEY AND SOLICITOR; (F) DEAH»as with Client. eluding counsel's fee ; not any witnesses' expenses": — Held, that this was an engagement on the part of the attorney not in any event to charge the client more than 151. Moon v. ffaU, 17 Com. B. Rep. N.S. 760. An agreement (to be carried into effect in this country) which would be void on the ground of champerty if made here, is not the less void because made in a foreign country where such a contract would be legal. Where, therefore, an attorney en- tered into an agreement in France with a French subject to sue for a debt due to the latter from a person residing here, whereby the attorney was to receive by way of recompense a moiety of the amount recovered, — Held, that, the agreement being void for champerty, the attorney was remitted to his ordinary retainer as an attorney, and the work having been done, and the client having received the benefit of it, was entitled to his costs as between attorney and client. Grell v. Levy, 16 Com. B. Rep. N.S. 73. Lapse of time is a ground for not setting aside a purchase, though the contract was to be kept secret, and the purchase was made by a solicitor from his client, and the question may be determined indepen- dently of the question of value. The Marquis of Clanricarde v. Henning, 30 Law J. Rep. (if.s.) Chanc. 86S ; 30 Beav. 175. If the Court considers that full value was given for the estate, the bill will be dismissed with costs, but if the question of value is doubtful, without costs. Ibid. In 1837 a solicitor bought lands from his client, who was in embarrassed circumstances. In 1855 the heir-at-law of the client filed a bill to have the sale set aside and it was set aside accordingly, on the ground of, the relative position of the vendor and purchaser, and of gross inadequacy of price. An account was directed to be taken between the parties, and it appeared, on taking the account, that there was no evidence of the payment of the purchase- money beyond the acknowledgment in the deed of conveyance and the receipt indorsed upon it. One of the Vice Chancellors considered this sufliicient; but upon appeal, — Held, by the Lords Justices, that no part of the purchase-money could be allowed in the account, it being the duty of the solicitor to give his client the same protection as if the transaction had been with a stranger, and to preserve indepen- dent proof that he (the solicitor) had actually made the payment. Gresley v. Mousley, 31 Law J. Rep. (n.8.) Chanc. 637 ; 3 De Gex, F. & J. 433. Gift made in 1852, pending the relation of soli- citor and client, by a client to his solicitor, by means of a parol direction on the part of the client to the solicitor to retain a sum of money in the hands of the latter belonging to the client, set aside upon a bill filed in November, 1861, the relation of solicitor and client having continued from the time of the gift up to the early part of 1861, when it was termi- nated. O'Brien v. Lewis, 32 Law J. Rep. (n.s.) Chanc. 569; 4 Giff^. 221. Although a gift by a client to his solicitor may be influenced by proper motives, it is subject to be set aside unless there be clear evidence of removal of that pressure upon the client, which the Court always presumes where the relation of solicitor and client is proved to subsist. Ibid. Claim by a solicitor against a testator's (his client's) estate for a sum of money advanced to the client on loan, but which, in fact, formed the proceeds of a bond debt due to the testator, and received by the solicitor at the client's direction, and which the soli- citor alleged the client had given him, by an agree, ment prepared by such solicitor at the client's ex- pense, and containing no recital of intended bounty, disallowed. In re Holmes's Estate; Woodward v. JBumpage, Sevan's case, 3 Giff. 337. Gift by a client to a solicitor, while that relation subsisted between them, was declared invalid at the instance of the residuary legatees of the donor, but legacies to the solicitor, his wife and children were supported. The principles which govern such cases stated. Walker v. Smith, 29 Beav. 394. By agreement in writing between a solicitor and his client it was stipulated that th« former should have 51. per cent, commission on the gross amount of property recovered by him for the latter, in addi- tion to his costs: — Held, that the stipulation was contrary to the policy of the law, and that the soli- citor must refund the amount received by him for commission, though included in a settled account. Pince v. Beattie, 32 Law J. Rep. (n.s.) Chanc. 734. A purchase by solicitors of the equity of redemp- tion of their client's property set aside, although another solicitor had been called in, and the defen- dants had ceased to act as solicitors just before the contract for purchase, it appearing that the other soli- citor had, with the knowledge of the defendants, not properly discharged his duty, and that the defendants had concealed from him an important fact. Gihbs V. Daniel, 4 Giff. 1. The intervention of another solicitor or adviser, who, with the knowledge of the p'urchaser, neglects or does not properly discharge his duty, is not sufii- cient to support a purchase by a solicitor from his client. Ibid. (G) Bill of Costs. {a) Delivery of Bill. No particular form of heading being prescribed by section 37. of 6 & 7 Vict. c. 73. as essential to an attorney's bill of costs, if the bill be sent with a letter, and the party to whom it is sent knows that it is intended to charge him, it is suflicient within the requirements of that section. Cham/p v. Stohes, 30 Law J. Rep. (n.s.) Exch. 243 ; 6 Hurls. & N. 683. The defendant, when surveyor of the highways of the parish of L, retained the plaintiif to conduct the defence of an indictment against the inhabitants for non-repair of a highway. Pending these pro- ceedings, the defendant ceeised to be surveyor, and a new surveyor was appointed. The plaintiff sent by post to the defendant his bill of costs, headed, " The surveyor of the township, &c. to A B C, solicitor. — The Queen against the Inhabitants, Sjc," inclosed in the following letter : — " Mr. C. Stokes. Dear Sir, — Herewith you have my bill of costs in the Lanphey matter, &c. I have sent a copy to the surveyor of the highways of the parish of Lanphey. Yours truly, ABC" : — Held, a sufficient delivery of a signed bill, within section 37, to entitle the plaintiff to recover against the defendant. Ibid. A clerk to Improvement Commissioners under a local act, who is paid by a fixed salary, is not within the Attorneys and Solicitors' Act, 6 & 7 Vict. c. 73, ATTORNEY AND SOLICITOR; (G) Bill of Costs. 33 so as to require the delivery of a signed bill, although he is an attorney, and his services consisted of work which, before his appointment at a fixed salary, he did as an attorney. Bush v. Mwttm, ; The Same v. the Same, S3 Law J. Rep. (n.s.) Exch. 17; 2 Hurls. &C. 311. (5) Taxation of. (1) In general. Upon a motion by a cestui que trust to tax a bill of costs, which had been delivered to and paid by a trustee, the solicitor will not be allowed to amend it by adding a sum of money, part of a previous bill of costs, which had also been paid. In re Gregg, 31 Law J. Rep. (U.S.) Chanc. 632; 30 Beav. 259. A solicitor had employed an auctioneer to sell some property for his client. He, however, made no previous arrangement as to the amount of his remu- neration, and the-auctioneer had retained, out of the deposits, more than would be allowed under the Bankruptcy scale: — Held, reversing the decision of the Taxing Master, who had merely allowed the amount according to the scale in Bankruptcy, that the whole charge ought to be allowed to the solicitor. In re Paj'e (No. 3), 32 Beav. 487. A solicitor, who has included in his bill of costs a lump or gross sum, may on taxatioii before the Master supply a detailed statement shewing how the sum is made up, and the Master may allow such of the items contained in the detailed statement as are proper, not exceeding in the aggregate the gross sum originally charged; but the Master can in no case allow more than the original amount. In re TiUeairdj 32 Law J. Rep.- (n.s.) Chanc. 765. Six railways, forming parts of a general system, were projected by the same persons. An act of par- liament was obtained authorizing the construction of two only, the other four being abandoned, and the special act provided that the expenses, costs and charges of obtaining and passing the act, and inci- dental and preparatory thereto, should be paid by the company: — Held, that the costs incurred in relation to the abandoned railways were to be re- garded as costs incidental and preparatory to the obtaining of the act, and were properly payable by the incorporated company. Ibid, Application of a solicitor after an order for taxation to withdraw a non-taxable item from his bill refused. In re Bldkesley and Beswich, 32 Beav. 379. On an ordinary taxation, the Taxing Master had disallowed the costs of a deed of reconveyance from a benefit building society of the property in a regis- tered county, thinking that a receipt was sufiicient under the 6 & 7 Will. 4. c. 34. s. 2. The decision was reversed by the Court. In re Pdge, 32 Beav, 485. A client having objected to a bill of costs delivered by his solicitor, the solicitor admitted that the bill (which he alleged was made, out on the understand- ing that he was to be paid liberally), contained items which would not be allowed on taxation. The client applied for an order to tax the bill ; but the order could not be obtained for some days, the offices being closed for the vacation. In the mean time, and before the order could be carried into the Taxing Master's Office, the solicitor delivered a second bill on a reduced scale, with notice of his withdrawal of the first bill. The Court allowed the second bill to Digest, 1860—65. be substituted for the first in the order for taxation, upon payment by the solicitor of the client's costs up to the time of the delivery of the second bill. In re Chambers, 34 Law J. Eep. (n.s.) Chanc. 292 ; 34 Beav. 177. (2) When gramted. N, a solicitor, was employed as such by J. from 1833 to 1867, and also in the payment and receipt of money, and he delivered his bills of costs and cash accounts between himself and J, to the number of forty-six, most of them before the year 1857. Other of the bills were delivered after April in that year, but none of them were paid, excepting that N was allowed by J. to retain moneys in his hands in respect of certain items in the accounts. No settlement was ever come to between th e parties. In March ,1858, J presented a petition under the statute, 6 & 7 Vict. c. 73, alleging overcharges and improper charges, and praying taxation: — Held, on appeal from an order of the Master of the Rolls, that as the bills formed items of account, themselves unsettled, none of those bills could be considered as paid : that the bills con- tained excessive and improper charges; and that, although there had been a delay of more than twelve months between the delivery of the bills and the presentation of the petition, the Court could order a general taxation more especially as the relation of solicitor and client existed up to a time within twelve months of the presentation of the petition. Bx parte Johnson, in re Nicholson, 30 Law J. Rep. (n.s.) Chanc. 585 ; 3 De Gex, F. & J. 93. When a bill of costs is paid, the onus of proving overcharges is thrown on the client. In re Towle, 30 Beav. 170. Charges for attendances, to the extent of eight on one day, are not sufficient to open a paid bill. Ibid. Where a mortgagee had instituted a suit for fore- closure, and an arrangement had been made for a transfer, and the bill of costs was not delivered until the day appointed for completion, and was not paid until fourteen days after, the Court refused to order a taxation, no overcharges being satisfactorily proved. The Court considered that the mortgagee ought to have obtained an order to stay the suit, on payment of the mortgage and the deposit of the amount claimed for costs. Ibid. In an action by a client against his solicitor, the latter pleaded his bill of costs by way of set-off. The client obtained an order for the delivery of the bill, and suffered himself to be non-prossed: — Held, that it was not necessary to state these circumstances on an ex parte application in Chancery for taxation. In re David, 30 Beav. 278. A and B compromised a suit, B agreeing to pay A's costs, and any question on this was to be referred to an arbitrator who was named. A's solicitor de- livered his bill of costs to B: — Held, that B was entitled to a taxation by an order of course. In re Martley, 30 Beav, 620. Where a bill of costs cannot be taxed as against the solicitor, the Court has no jurisdiction under the 38th section of the 6 & 7 Vict. c. 73. to order it to be taxed as between a client and a third party — In re Jessop (32 Beav. 406) and In re Baker (Ibid. S26) overruled. In re Massey, 34 Law J. Rep. (n.s.) Chanc. 492 ; 34 Beav. 463. On the day fixed for the completion at a solicitor's P 34 ATTORNEY AND SOLICITOR; (G) Bin op Costs. office of the sale of mortgaged property belonging to a former client, who was in somewhat embarrassed circumstances, the solicitor delivered his bill of costs. The client and his new solicitor attended, and in order to prevent the postponement of the comple- tion, allowed the solicitor to retain the amount of his bill, but under protest. The bill contained over- charges to a considerable amount : — Held, that the bill was paid under circumstances of pressure, and that taxation ought to be ordered. In re Pugh, 1 De Gex, J. & S. 673. Agreement by a solicitor to receive a fixed sum for costs for business hereafter to be done is not binding on the cHent, who is, notwithstanding pay- ment under it, entitled to an order of Court for the delivery of a bill of costs and its taxation. In re Newman, 30 Beav. 196. A solicitor delivered his bill of costs to his client, made out in double columns, one being the amount allowed on taxation, which he refused to accept when tendered. The client then paid the larger sum to obtain his papers; and, upon his petition, — Held, notwithstanding the payment, that he was entitled to an order to tax the bill, as he had been constrained to pay the larger sum by the refusal of the solicitor to accept what he himself had stated that he was legally entitled to. Hx parte Tosland, in re Letts, 32 Law J. Rep. (n.s.) Chanc. 100 ; 31 Beav. 488. TjO prevent the sale of the mortgaged property by a first mortgagee, a puisne mortgagee took a transfer of the first mortgage, by deed executed by him, which recited the amount due on the first mortgage. This, however, included the costs of the first mort- gagee's solicitor, no account of which had been de- livered until afterwards. The bill contained some costs of the solicitor against the mortgagor, and, therefore, not mortgagee's costs; — Held, that the puisne mortgagee was not entitled, on summons, to an order for the taxation of the bill. In re Forsyth, 34 Beav. 140. (3) Costs of Taxation, Moneys specifically paid by a client to his soli- citor for counsel's fees and stamps, as they were re- quired, — Held, properly included in the solicitor's bill in calculating the sixth on a taxation. In re Metealfe, 30 Beav. 406. (4) Practice. An order to tax the bill of a solicitor, deceased, will be revived upon an ex parte motion made by his executors. In re Waugh, 30 Law J. Rep. (n.s.) Chanc. 796 n. ; 29 Beav. 666. A client may apply ex parte against an executrix of a solicitor deceased, to revive an order for the taxation of the solicitor's bills of costs. In re Nicholson, 30 Law J. Rep. (U.S.) Chanc. 796 ; 29 Beav. 665. The order to revive an order to tax will be made in the Rolls Court, though the order for taxation was made specially by the Lords Justices, and though they reserved to themselves a right to deal with such special circumstances as might be certified by the Taxing Master. Ibid. Upon a petition by a mortgagor to tax the bill of the mortgagee's solicitor, after payment the mort- gagee must be served. In re Baker, 32 Beav. 52S. An order of course to tax a solicitor's bill incurred by three persons, obtained on the application of two of them, is irregular. In re Ilderton, 33 Beav. 201. A client obtained an order of course to tax, after action brought, but before notice of it, and the order did not provide for the costs of the action: — Held, that this was not irregular, and a motion to discharge it was refused, with costs. In re Paringtan, 33 Beav. 346. A solicitor delivered four bills, the last of which and the cash account shewed, upon the whole, a large balance due to the solicitor. The solicitor brought an action to recover the balance, whereupon the client obtained an order of course to tax the last bill and to stay the action in the mean time. The order was held irregular, and was discharged, with costs. In re Tetts, 33 Beav. 412. An application for the delivery and taxation of the bill of costs of a solicitor, who claims to retain, in satisfaction of costs, money received by him on his client's account, and for payment by the solicitor to the client of the excess of the money retained over the amount of his bill, is an application under the 6 & 7 Vict. c. 73, and must therefore be made in chambers under the General Order of the 2nd of August, 1864. In re May, 34 Law J. Rep. (n.s.) Chanc. 236 ; 34 Beav. 132. When the common order for taxation has been obtained, not made in a suit or matter, but under the Solicitors' Act, all special applications connected therewith must be made to the Master of the Rolls, even though the Chancery proceedings, in respect of which the order has been made, may have been depending in some other branch of the Court, and orders may have been made therein. In re Bell, 2 Hem. & M. 501. (H) Lien fob Costs. An attorney cannot set up the lien of his London agent on the papers of his client against the claim of that client, the client having paid his attorney's bill of costs. In re Andrew, 30 Law J. Rep. (n.s.) Exch. 403 ; 7 Hurls. & N. 87. The Court will grant an attachment against the attorney for disobeying an order of the Court, for delivery of such papers to his client, notwithstanding those papers are detained by the London agent against the will of the attorney. Ibid. The attorney for a successful litigant was declared by the Court in which the action was brought to be entitled, pursuant to 23 & 24 Vict. c. 127. s. 28, to a charge upon the property recovered through his instrumentality, for the amount of his taxed costs In the action, although the estate of his client (who had died since the action) was being administered in the Court of Chancery. Wilson v. Hood, in re Seaman, 33 Law J. Rep. (n.s.) Exch. 204 ; 3 Hurls. & C. 148. Though the Court will not interfere as against the defendants with a bona fide settlement of an action with a view of enforcing the plaintiff's attorney's lien for his costs of the action, they will, neverthe- less, while the sum agreed upon as a compromise remains unpaid, direct the defendants to pay to the plaintiff's attorney so much of the sum as is neces- sary to satisfy his charge. Slater v. the Mayor of Sunderland, 33 Law J. Rep. (n.s.) Q.B. 37. The London agent of a country solicitor is not entitled to a lien on the documents of a client for the ATTORNEY AND SOLICITOR; (I) SET-OFr of Costs. 35 amount of his charges, if nothing is due from the client to the country solicitor. Waller v. Holmes, 30 Law J. Rep. (n.s.) Chanc. 24 ; 1 Jo. & H. 230. It makes no difference whether the bill has been paid in cash or by set-off in account, if at the time of the lien claimed nothing remains due to the country solicitor. Ibid. Although in a suit instituted on behalf of an infant plaintiff, the Court will, where the defendants have been ordered to pay the costs of the suit but are insolvent, direct the costs due to the plaintiff's soli- citor to be paid out of a fund in court, the proceeds of sale of real estate recovered in the cause, it will not, under section 28. of 23 & 24 Vict. c. 127. (the Attorneys and Solicitors' Act, 1860), direct those costs to be made a charge on the real estate so re- covered, inasmuch as that section applies only to suits instituted by adult plaintiffs. Bonser v. Brad- sham, 30 Law J. Rep. (n.s.) Chanc. 159. Where the directors of a joint-stock company carry on a business not authorized by the deed of settlement, and costs are thereby increased, the solicitors of the company have no lien for their costs on the papers of the company. In re the Pficmix Life Assurance Co.; Howard and DoVmmCs case, 1 Hem. & M. 433. Where, in such a case, moneys have been recovered in any of the actions, although the solicitors would have had a lien for their costs on such moneys while in then: hands, yet, after they have paid over such moneys to the company, and allowed them to be incorporated with the general assets, they have no lien on those assets in respect of such costs. Ibid. Where, in such a case, moneys have been paid by the company to the solicitors, an account of costs generally, the solicitors have no right, post litem motam, to appropriate such payments to the costs incurred in respect of the unauthorized business, but on the contrary the Court will appropriate the pay- ments to the costs which the company was liable to pay. Ibid. Where a sum is due for costs in a suit to a London agent of a country solicitor, whose costs in the suit have been ordered to be paid out of a fund in court, the Court will, under section 28. of 23 & 24 Vict. c. 127. (the Attorneys and Solicitors' Act, 1860), order the costs of the London agent to be paid out of the fund in court to the extent of the country solicitor's interest therein. Tairdrew v. HofweOi, Paary v. Howdl, 31 Law J. Rep. (jj.a.) Chanc. 57; 3 Giff. 381. A solicitor is entitled, under 23 & 24 Vict. c. 127, to a charge upon property recovered or preserved, for his costs of the litigation by which it is recovered or preserved, irrespective of his client's interest in the property, and although it turns out that the latter has not and never had any interest therein. Bailey v. BvrchaU, Barnes v. Sateliffe, Bailey v. Ratcliffe, 2 Hem. & M. 371. The Court will, before the completion of a tax- ation, order the delivery up of papers by a solicitor to his client, eithor upon payment into court of the amount claimed, or in case it appears from the soli- citor's own account that a balance is due from him to his client. In re Bevcm a/nd Wkitting, 33 Beav. 439. 'A solicitor does not, by taking the body of his client in execution on a judgment obtained by him at law for his costs in a suit in equity, lose his lien for such costs upon the costs of the suit ordered to be paid by the opposite party to his client. O'Brien V. Lewis, 32 Law J. Rep. (n.s.) Chanc. 665; 4 Giff. 396. Where a solicitor had obtained a foreclosure de- cree for a client (who had subsequently died, and a decree for administration of his estate had been made), the Court, vmder the 28th section of the 23 & 24 Vict. c. 127, made a charging order for the costs of the suit against the real estate of the client. Wilson v. Sound, 4 Giff. 416. The solicitor of a party to a suit has, indepen- dently of the 23 & 24 Vict. c. 127, a paramount lien for his costs of suit upon the interest of that party in a fund brought into court, through the soli- citor's exertions; and, semble, notwithstanding the doubt suggested by the terms of the statute, this lien must prevail, even against an assignee for value without notice. Haymes v. Cooper, Cooper v. Jenkins, 33 Law J. Rep. (n.s.) Chanc. 488; 33 Beav. 431. Where, therefore, a plaintiff in a suit, to whom a defendant had been ordered to pay costs, obtained a charging order nisi upon a share of funds in court belonging to the defendant, — Held, that it could only be made absolute, subject to the lien for the taxed costs of the defendant's solicitor. Ibid. Where a solicitor was employed by the next friend in establishing an infant's title to certain land, the infant having attained twenty-one, the Court, under the 23 & 24 Vict. c. 127. s. 28, declared, on petition, so much of the costs as remained unpaid a charge on the land recovered. Brown v. Bradshaw, 4 Giff. 260. A solicitor ordered, pending a taxation of his bill, to deliver over his client's papers, on the client undertaking to produce them, and giving security for the amount claimed. In re lewitt (No. 2), 34 Beav. 22. (I) Set-off of Costs. An attorney may set off the amount of his costs, although he has not delivered a bill of such costs one month before the action. Brown v. Titbits, 31 Law J. Rep. (n.s.) C.P. 206 ; 11 Com. B. Rep. N.S. 855. Declaration on an agreement, by the defendant, to indemnify the plaintiff against the costs which the plaintiff might be obliged to pay in a certain suit, conducted by the defendant as the attorney of the plaintiff, with an allegation that the plaintiff was compelled to pay in such suit a certain sum for costs; and breach, that the defendant had not indem- nified the plaintiff, or paid such sum : — Held, that a plea of set-off, pleaded to so much of the declara- tion as related to the plaintiff's claim in respect of the payment of the said sum for costs, was a good plea. Ibid. A, being indebted, employed a solicitor to prepare a deed of assignment for the benefit of his creditors, which the solicitor did, but in such a form as not to bind non-assenting creditors. The trustees accepted the trusts of the deed, and employed the solicitor to get in the estate. Subsequently, but more than twelve months after the execution of the deed, A was adju- dicated a bankrupt. The deed contained a trust for payment of the costs of preparing it. In taxing the 36 ATTORNEY AND SOLICITOR— BAILMENT. solicitor's bill of costs against the trustees, — Held, that the solicitor was entitled to set off, against moneys received by him on behalf of the trustees, the costs of preparing the deed, although it had not been prepared upon the retainer of the trustees. In re Sadd, 34 Law J. Rep. (h.s.) Chanc. 562; 34 Beav. 650. (K) Okdeb foe Payment of Costs. After declaration the plaintiff executed a re- lease to the defendant and gave his own attorney notice not to proceed ; the release was pleaded ; to this plea there was a replication confessing the release; judgment was signed for the costs, and writ of execution issued. Notice was then given to the sheriff by the plaintiff not to execute process on peril of being treated as a, trespasser, and thereupon the plaintiff's attorney obtained an order, calling on the plaintiff " or defendant " to pay his costs : — Held, that this was a proper case for the interfer- ence of the Court, and that the form of the order was good. Ex pa/rte Games, in, re Williams v. Lloyd, 33 Law J. Rep. (n.s.) Exch. 317 ; 3 Hurls. & C. 294. (L) Recovery of Costs by Unceetificatbd Attobney. The objection that the attorney is not duly quali- fied, and that a party to an action cannot, there- fore, recover his costs, must be taken before the Master on the taxation of costs, and, if not taken then, cannot afterwards be taken on a motion to set aside the taxation, unless the omission be satisfactorily explained. Fullahve v. Parker, 31 Law J. Rep. (s.s.) C.P. 239 ; 12 Com. B. Rep. N.S. 246. It is not a satisfactory explanation merely to state that the applicant was not aware of the defect in the attorney's quahfication, when the taxation took place, but it must also appear that by the exercise of reasonable diligence the defect could not have been discovered earlier. Ibid. If money has been paid by a party to an action to an unqualified attorney, he cannot recover it back, and to this extent he may recover his costs from his opponent. Ibid. AUCTION AND AUCTIONEER. [See Sale — Vesdoe and Puechaser.] AUDIT AND AUDITOR. [See Poor-Law,] BAIL. [See Arrest.] Bail in Error : Papnent into Court in lieu of. The plaintiff had judgment in this Court, and the damages were referred to an arbitrator, and a sum of money paid into Court to cover the damages and costs, upon the terms that it should be in lieu of giving bail in error and to abide the further order of the Court, and that thereupon all fiirther proceed- ings upon the reference should be stayed until after the proceedings in error should be disposed of. The judgment for the plaintiff was afterwards reversed in the Exchequer Chamber : — Held, that the defen- dant was entitled to have the money paid out to him without awaiting the result of an appeal to the House of Lords. Caslrique y. Imrie, 30 Law J. Rep. (N.S.) C.P. 281; 10 Com. B. Rep. N.S. 340. Bail on Appeal: dispensing with. The Court or a Judge has a discretion to dispense with bail on appeal, as well as with bail in error. Beavan v. Witmore, 15 Com. B. Rep. N.S. 442. An official assignee of a district Court of Bank- ruptcy, having been sued by the trade assignee for contribution to the costs of an unsuccessful action to which the former was an assenting party, and judgment having gone against him, — Held, that it was a fit case for dispensing with bail on appeal. Ibid. BAILMENT. (A) CoNSTEtrcTivE Delivery and Rights of THE Bailee. (B) Jus Tertii. (a) consteuotive delivery and rights of the Bailee. The plaintiff, being indebted to A, entered into an agreement that certain goods should be held by A as a security for the debt, and the agreement contained an acknowledgment that A had received into his possession the goods which were the subject of the pledge. Part of the goods were, in fact, delivered to A, but a cart and one set of harness were, by arrangement, left in possession of the plain- tiff. Shortly afterwards, upon A getting into diffi- culties, the plaintiff took back all the goods which were the subject of the pledge into his own posses-' sion, but, upon A's being declared bankrupt, his assignees seized the goods, and sold them for the benefit of A's creditors ; — Held, in trover by the plaintiff, against the assignees, that there was a con- structive delivery of all the goods into the possession of the pawnee. Martin v. Meid, 31 Law J. Rep. (N.S.) C.P. 126; 11 Com. B. Rep. N.S. 730. Semble, per Willes, J., that the pawnee of a chattel has a right to sell it, although no special day be named for the performance of the obUgation, after which day the property of the pawnee shall become absolute. Ibid. (B) Jus Tertii. Where one of two contracting parties so conducts himself as to hinder the performance of the contract by the other, or to subject the latter to an action at the suit of some third person if he duly perform the contract, no action will he for the non-performance. The European and AvstraXian Co. v. the Royal MaU Steam Packet Co., 30 Law J. Rep. (n.s.) C.P. 246. ' When a bailor mortgages the chattel bailed, and the mortgagee has a right to demand possession from the bailee and does demand it, the bailee may refuse to give the chattel up to the bailor. Ibid. The plaintiffs delivered a ship to the defendants BAILMENT— BANKER AND BANKING COMPANY. 37 under a contract, which provided, among other things, that the defendants should during the contin- uance of the contract and while the ship remained in the possession and use of the defendants, pay and discharge certain claims which would arise against the owners of the ship for its expenses, and upon the determination thereof re-deliver the ship to the plain- tiffs. The plaintiffs afterwards mortgaged the ship, and certain expenses were incurred within the above provision, and after that the mortgagees demanded possession under their mortgage : — Held, first, that such mortgage and demand were an answer to the claim of the plaintiffs to have the ship re-delivered to them ; but, secondly, were no answer to their claim to have the expenses paid. Ibid. A bailee is not estopped from disputing the title of his bailor, and setting up the jiis tertii, where the bailment has been determined by what is equivalent to an eviction by title paramount. Middle v. Bond, 34 Law J. Rep. (n.s.) Q.B. 137 ; 6 Best & S. 225. The plaintiff seized goods belonging to R under a distress for rent of a house alleged to have been demised by the plaintiff to R, and having seized them he delivered them to the defendant, an auctioneer, for the purpose~of selling them. When the sale was about to begin R gave notice to the defendant that he must not sell the goods, or if he did sell them that he must retain the proceeds for him, R, as the dis- tress was void, and as the relation of landlord and tenant did not exist between himself and the plaintiff. This was true, and the distress was void altogether. The defendant did sell the goods, but kept the pro- ceeds for R: — Held, that he was entitled to set up thejvs tertii, and had a good defence to an action by the plaintiff. Ibid. Plaintiff when a young child resided with her aunt in the house of the defendant's testator, where the aunt Uved as housekeeper, and the plaintiff was almost adopted into the testator's family. The aunt was a married woman living apart from her husband who had deserted her, and previously to her death she gave the plaintiff some articles of jewelry and apparel ; part of these the plaintiff gave the testator to keep for her, and the rest she placed in her own boxes in the testator's house. Upon the aunt's death her hus- band once called and claimed her effects, but the testator repudiated the husband's right, and the hus- band never afterwards claimed thdm or interfered further in the matter. When the testator died, which happened whilst the plaintiff was away at school, the defendant as executor took possession of the articles which had been so given to the plaintiff, and refused to restore them to her: — Held, that the plaintiff was in possession so as to be entitled to maintain an action against the defendant for ,these articles ; and that it was not competent to the defendant to set up the right of the aunt's husband as an answer to the action. Bourne v. Fosbroohe, 34 Law ,T. Rep. (n.s.) C.P. 164 ; 18 Com. B. Rep. N.S. 515. BANKER AND BANKING COMPANY. [Certain banking copartnerships discontinuing the issue of their own notes enabled to sue and be sued by their public officer by 27 &■ 28 Vict.x. 32.] (A) Nature or a Banking Company. (B> Dealings with CnsTOMERS. (C) Actions by and against. (a) Payment by Mistake. (o) Conduct of Mamager. BAKEHOUSE. An Act for the Regulation of Bakehouses — 26 & 27 Vict. c. 60. (A) Nature op a Banking Company. A company called a " Savings Bank " was formed with limited liability and registered under the Joint- Stock Corppanies Act, 1856, the objects being alleged to be to receive deposits, grant loans on security and to conduct emigration agencies, with a capital of 50,000/. in shares of 1/. each. An order to wind up was made in Bankruptcy, and afterwards a petition to wind up in Chancery was presented, on the ground that the company was not a banking company, and therefore that there was no jurisdiction to wind up in Bankruptcy; and it being proved that the company was not registered under either of the Banking Com- panies Acts, 1857 and 1868 ; that money could not be withdrawn except upon a stated period of notice ; that cheques could not be drawn in the ordinary form ; and that the company itself kept an account with a banking-house, — Held, that the company was not a banking company within the meaning of the statutes regulating joint-stock companies, and that being a company of limited liability registered under the act of 1866, it must be wound up as directed by that statute in the Court of Bankruptcy. Ex parte Coe, in re the District Savings Bank (Lim.), 31 Law J. Rep. (n.s.) Bankr. 8 ; 3 De Gex, F. & J. 336. (B) Dealings with Customers. In 1847 the customer of a bank gave a mortgage to the bankers to secure, with interest at 51. per cent., money due and to become due to them upon a run- ning account, on which it had been usual to make annual rests, and charge compound interest on the balances. In 1855 the customer assigned his pro- perty to trustees for the benefit of creditors: — Held, that the bankers had no right to make rests after the relation of banker and customer had ceased, and that the mortgage was a security only for the balance due at the date of the assignment, with simple interest from that time at bl. per cent, per annum. CrosshiU V. Bower, Bower v. Turner, 32 Law J. Rep. (n.s.) Chanc. 540 ; 32 Beav. 86. If bankers take a mortgage security from a cus- tomer for a fixed sum owing to them by the latter, the relation of banker and customer ceases thenceforth as to that sum, and it cannot be included in the customer's banking account so as to entitle thebankers to charge compound interest thereon ; and in refer- ence to the sum so secured, the mutual rights and obligations are thenceforth those of mortgagees and mortgagor. Mosse v. Salt, 32 Law J. Rep. (n.s.) Chanc. 766 ; 32 Beav. 269. Bankers cannot refuse to allow income-tax to a customer upon interest accruing on a mortgage security. Ibid. As between a banker and his customer, the mode 38 BANKER AND BANKING COMPANY. in which the account has habitually been made out "will be viewed as evidence of an agreement that it should be taken in that way ; and in the absence of any special agreement, express or implied, evidence as to the custom of bankers is receivable for the pur- pose of determining the principle upon which the account is to be taken. Ibid. Q,u(ere — Whether a conveyance of land is a " security " within the custom which gives to bankers a general lien on securities deposited by their cus- tomers. Serrible — not. Wylde v. Sadford, 33 Law J. Rep. (n.s.) Chanc. 51. The articles of association of a joint-stock bank provided that the bank should have a paramount lien on the shares of any shareholder for all moneys due to them from him, and that they might decline to register any transfer whilst the transferring share- holder was indebted to them. A shareholder being unable to meet certain bills of exchange accepted by him and held by the bank, the bank took from him renewed bills for the same amount. Before the re- newed bills arrived at maturity the shareholder trans- ferred his shares, but the bank declined to register the transfer: — Held, that the renewed bills, though they suspended the remedy, did not discharge the antecedent debt, and that consequently the bank had a lien on the shares and were not bound to register the transfer. In re the London, Birmingham and South Staffordshire Bank, 34 Law J. Hep. (n.s.) Chanc. 418 ; 34 Beav. 332. Bankers retained the balance of a customer to answer a future liability which might arise in respect of bills which they had discounted for him to a much larger amount than the balance, and the customer brought an action against the bankers for damages for having dishonoured his cheques, and for the amount of his balance. After the action was com- menced several of the above bills, to a larger amount than the balance, were dishonoured. Upon a bill filed by the bankers against the customer for an account and for an injunction to restrain the action at law, the Court (considering there was a substantial ques- tion to be tried in equity), upon motion, made during the Sittings in London at which the trial of the action was to take place, granted an- injunction restraining the action. The Agra and Masterman's Bank (Lim.) V. Hoffman, 34 Law J. Rep. (h.s.) Chanc. 285. Where a customer of bankers gets them to discount bills at a time when his account is largely over- drawn, and the amount is simply carried to the credit of his account, the bankers are holders for value, though no money was actually paid. In re Carew's Estate Act, 31 Beav. 39. The defendant, a merchant at Newcastle, was a customer of the plaintiff's bankers at Newcastle, whose London agent was the Union Bank. H, a merchant at Wolgast, in Prussia, wrote to the de- fendant, stating that he was inclined to consign to him a cargo of wheat, and asking for how much and at what date the defendant would open for him a credit in London. The defendant wrote in reply : " You may draw against transmittal of bill of lading at 30s. to 32«. per quarter in advance for your best yellow wheat on our account at fourteen days, one, two or three months' date, on the Union Bank of London." H afterwards wrote to the defendant, stating that he was about to consign to him 8,320 scheffels of wheat, shipped by the vessel Anna, Capt. K, and that he annexed duplicate bill of lading. On the same day H wrote to the Union Bank, stating that he had drawn on them six bills of exchange for 400/. each, for account of defendant. The Union Bank, having no instructions, sent the letter to plaintiffs. Messrs. B & C afterwards pre- sented to the Union Bank for acceptance six bills of exchange for 400/. each, drawn and indorsed by H, together with a paper writing, purporting to be a bill of lading, addressed to the Union Bank. The defen- dant came to the plaintiffs' bank and had some con- versation with the manager respecting the cargo of wheat supposed to have been shipped by H, when defendant said " it was a large amount, and that they must only accept against the bill of lading." The defendant then wrote to the plaintifis as follows: " We shall feel obliged by your requesting the Union Bank of London to accept the drafts of Mr. H, of Wolgast, for 2,4001 against properly indorsed bill of lading of 8,320 scheifels of wheat, per Anna, E K Master, on our account." The Union Bank, at the request of the plaintiffs, accepted the drafts, and the plaintiffs debited the defendant with the amount. Before the drafts became due, it was discovered that the bill of lading was forged, ^nd that no cargo was shipped on board the Anna. H was afterwards con- victed of uttering a forged bill of lading. The Union Bank having paid the bills and debited the plaintiffs with the amount, — Held, that the plaintiffs were en- titled to recover the amount from the defendant on an implied contract to indemnify them. Woods v. Biedemmm, 1 Hurls. & C. 478. (C) Actions by and against. (a) Payment by Mistake. The plaintiff presented a cheque at a bank, which the cashier of the defendants (the bankers) took, and gave the plaintiff in return notes and gold. Whilst the plaintiff was counting the notes one of the de- fendants, having discovered that the drawer of the cheque had no assets, demanded the money back. The plaintiff refused to give it up, and the defendants thereupon took it by force: — Held, in an action by A of assault and trespass for taking the money from him by force, that he was entitled to recover. That the transfer of the money was complete; that as between the plaintiff and the defendants there was no mistake at all, the mistake being between the defen- dants and their customer ; and that the defendants, therefore, could not have recovered back the money from the plaintiff in an action for money had and received. Chamiers v. Miller, 32 Law J. Rep. (n.s.) C.P. 30 ; 13 Com. B. Rep. N.S. 125. Qu{ it. Murray v. Arnold, 32 Law J. Rep. (is.s.) Q.B. 11 ; 3 Best & S. 287. At the hearing of a suit instituted by the wife of a bankrupt for redemption of a mortgage executed by the husband and wife of the wife's real estate, the assignees of the bankrupt, who were co-defendants with the mortgagee, disclaimed their right to re- deem, and a decree was made giving the first equity of redemption to the wife. After this decree, the Commissioner in Bankruptcy allowed the mortgagee to prove against the estate of the bankrupt for the full amount of his principal and interest. Upon appeal to the Lord Chancellor, it was held that the disclaimer of the assignees operated only in accele- ration of the wife's right to redeem, but if she did not exercise the right, then, the purpose for which the disclaimer was given having ceased to exist, the assignees' equity of redemption would continue as before. Consequently, the mortgagee could only be admitted to prove, subject to the condition that in the event of the bill being dismissed as against him, the interest of the bankrupt in the mortgaged pre- mises should be sold, and proof admitted for the residue of the mortgage debt, after deducting the proceeds; or, in the event of redemption by the wife, the proof should be admitted subject to the same being expunged, or remaining wholly or par- tially for the benefit of the person paving the mort- gage debt. Ex parte Paine, » re Gleaves, 32 Law J. Rep. (S.S.) Bankr. 65. The receipt of dividends under a bankruptcy will, after a great lapse of time and loss of the securities, be accepted as prima facie proof of the existence of the debt, and any objection to it must rest on evi- dence shewing some probable reason for supposing, not that it may be, but that it is, bad. Ex parte Qraham, in re Grant, 33 Law J. Rep. (n.s.) Bankr. 1. Thus, where a bankruptcy took place in 1783, and a person claiming under an assignment of a proof received dividends in 1820 and 1824, the repre- sentatives of the assignee claiming in 1863 were held entitled to the dividends subsequently declared, though the deed of assignment was not produced. Ibid. A creditor, after proving his debt, received 500/. under a collateral security on property of the bank- rupt, and was suhsequently paid dividends on the full amount of his proof until application for a final dividend, when the receipt of the 500/. became known; — Held, that the dividends on the 600/. must be deducted from the final dividend, and that the creditor must be charged with interest at 51. per cent, on the excess of dividends actually received from time to time over what would have been 46 BANKRUPTCY; (E) Proof of Debt. receivable if the proof had been properly reduced. Ibid. Under the usual order made upon the petition of an equitable mortgagee, directing the securities to be realized and applied in payment of principal, intei^ est and costs, and giving the equitable mortgagee leave to prove for the deficiency, the calculation of interest must be made to the date of the bankruptcy only, and the mortgagee cannot claim to retain, in the first instance, out of the proceeds of the secu- rities, interest accrued subsequent to the bankruptcy. Ex parte Lubbock, in. re Flood and Lott, S2 Law J. Eep. (N.s.) Chanc. 58. (h) Double Proof. A firm of two persons, D and Y, carrying on business as D, Y & Co. at Liverpool, and of three persons, D, Y & Y, carrying on business in Pernam- buco, were adjudicated bankrupts in 1854 at Liver- pool. A creditor of both firms proved for a debt under this bankruptcy, and received a dividend, after which receipt the house at Pernambuco also became bankrupt, and the creditor proved the same debt against the estate there, and received a divi- dend in respect of it. In 1861 an order was made by the Commissioner in England that the proof in this country should be expunged, unless the creditor paid to the assignees the dividend received by him at Pernambuco. This order was varied by the Lords Justices, who declared that the creditor was not en- titled to any dividend in England, except the first which he had received, but without prejudice to any question as to that dividend, or to any question under the foreign bankruptcy. The assignees pre- sented a petition praying that the creditor might be ordered to refund such first dividend : — Held, (affirming a judgment of the Commissioner,) that, in the absence of all evidence to shew that the law of Brazil would not have given the creditor the right to receive the dividend there, he was under no obli- gation as to that which he received here ; but that, as he had rightfully received, he was entitled to re- tain it, and the petition was dismissed, with costs. Ex parte Smith, in re Deane, Youle & Co., 31 Law J. Rep. (n.s.) Bankr. 60. (i) Gaming. By the rules and the ordinary practice of the Stock Exchange, it is customary among brokers for one to make advances to another upon the deposit of foreign shares, &c., or to make purchases of similar securities ; such loan to be repaid, or such purchase to be completed, upon the next of the settling days fixed for such transactions ; but, accord- ing to the rules and customs of the association, if such loan should not be repaid, or such purchase completed, on that settling day, it is the right, in the absence of any new agreement, of the lender, or seller (as the case may be) either to sell the secu- rities, or to retain them himself, at a price to be fixed by officers appointed for that purpose ; and if the price so fixed should prove to be less than the debt in the case of a loan, or less than the price agreed to be paid in the case of a sale, the borrower or purchaser is liable to pay the deficiency ; but any surplus beyond the loan, or the price agreed upon, is to be paid by the party retaining the shares to the borrower or purchaser. Further, if the borrower or purchaser should be unable to repay or com plete, by reason of his being proclaimed a defaulter, the lender or seller is bound to take the shares in ques- tion at the price fixed by the proper officer. In the year 1858 P, M and M (the bankrupt) were members of the Stock Exchange. In November in that year P advanced M (the bankrupt) a sum of money, on the deposit of certain foreign railway shares. On each of the days for settling the account was adjusted between them, and the transaction was by agreement carried over from time to time at each successive settling day, until the month of April 1 859, when M (the bankrupt) became a defaulter, at which time a balance was due to P after deducting the market value of the shares. M (the bankrupt) was so adjudicated in July, 1859, and P tendered a proof against his estate ; but one of the Commissioners being of opinion that the transaction was one of gaming, and as such illegal, rejected the proof. In March 1858 M and M (the bankrupt) had this deal- ing, namely, that the former sold to the latter foreign railway shares, the sale to be completed on the next settling day ; which was not done, but an adjustment of the account was made on each settling day, until M (the bankrupt) finally became a defaulter, when a balance was due to M after deducting the value of the shares, which shares he retained. This balance M claimed to prove in the bankruptcy; but the Com- missioner, for the same reason as he rejected P's proof, rejected that of M : — Held, on appeal, that there was no gaming in either case, and that the proofs must be admitted. Ex parte Phillips, in re Morgan; Ex parte Marnham, in re Morgan, 30 Law J. Rep. (n.s.) Bankr. 1. (F) Tkansaotions affected by Bankeuptcy. [See ajrUe, (B) Act of Bahkkuptoy.] The sheriff, having taken the goods of A, a trader, in execution under a fi. fa., at the suit of B, sold them to B. A few days before the sale B had re- ceived notice that A had filed a petition in the Court of Bankruptcy for an arrangement with his creditors. This petition was afterwards dismissed, and on the day of the dismissal, on the petition of a creditor, A was adjudicated a bankrupt. This, by relation back, made the filing of the petition for an arrangement an act of bankruptcy from the time of the filing, under section 76. of the Bankrupt Law Consolidation Act, 1849 : — Held, that B had notice of a prior act of bankruptcy before the purchase under the execution ; and, consequently, that the transaction was not protected by section 133. of the same act, and that the assignees of the bankrupt were entitled to recover the goods. Edwards v. Gairiel (Ex. Ch.), 31 Law J. Rep. (n.s.) Exch. 113; 7 Hurls. & N. 520. The 133rd section of the 12 & 13 Vict. c. 106,— which enacts that all executions executed and levied by seizure and sale of a bankrupt's goods before the date of fiat or filing petition shall be valid notwith- standing a prior act of bankruptcy, provided the execution creditor had not at the time of levying or sale notice of any prior act of bankruptcy, — has reference only to an act of bankruptcy prior to the seizure ; and, therefore, an execution levied by seizure before any act of bankruptcy is not inva- lidated by a subsequent act of bankruptcy aud notice BANKRUPTCY; (G) Assiqubes. 47 thereof before sal^. Edwards v. Scwrsbrooh, 32 Law J. Eep. (n.s.) Ci.B. 45 ; 3 Best & S. 280. Under the 12 &13 Vict. c. 106. s. 202. any secu- rity given for the purpose therein mentioned ia declared to be void. This section is repealed by the 24 & 26 Vict. c. 134, and is re-enacted (section 166.) with a proviso in favour of hona fide holders for value of such securities (if negotiable) : — Held, that the latter section is not retrospective, and that a bill of exchange drawn prior to the passing of this act is not affected by this proviso. Reed v. Wiggins, 32 Law J. Eep. (n.s.) C.P. 131; 13 Com. B. Rep. N.S. 220. The defendant agreed with the plaintiff and others of his creditors to pay them a composition on their debts, but in order to give the plaintiff a fraudulent preference, and to induce him to agree to the compo- sition, the defendant agreed to grant the plaintiff an additional composition, and to carry out this object the plaintiff assigned hia debt to S, the defendant's brother, and accepted a bill drawn by the plaintiff for the additional composition. The bill being over- due, the defendant by deed, reciting that S was indebted to the plaintiffs in the amount of the bill, assigned to the plaintiff a policy of assurance by way of security, covenanting to keep up the assurance, and repay any premiums paid by the plaintiff: — Held, that this arrangement was an answer to an action on the covenant, within the principle of Fisher V. Bridges. Geere v. Mare, 33 Law J. Rep. (h.s.) Exch. 50 ; 2 Hurls. & C. 339. Prima fade a trader who, on the eve of bank- ruptcy, hands over to a creditor assets which ought to be rateably distributed among all hia creditors, must be taken to have acted in fraud of the law. But if circumstances exist which tend to explain and give a different character to the transaction, and to shew that the debtor acted from a different motive, these circumstances ought to be left to the jury; and the proper direction in such a case ia that, unless the jury come to the conclusion that the debtor had the intention of defeating the law, and preventing the due distribution of his assets, by preferring one cre- ditor at the expense of the rest, the transaction standa good in law. The whole queation turns upon the intention of the trader in disposing of hia goods to the particular creditor. Bills v. Smith, 34 Law J. Rep. (if-s.) a.B. 68; 6 Best & S. 314. (G) Assignees. {a) Choice of. Where, on the occasion of the choice of assignees, a misapprehension exiated as to the willingness of a certain gentleman to act, an order was made for a new choice, and the coats attending the application were ordered to be paid out of the estate. Ex pa/rte the Wolverhampton and Staffordshire Banking Co., in re Boddington, 31 Law J. Rep. (n.s.) Bankr. 30. An executor and trustee of a will was declared bankrupt. Under the will he took both real and personal estate, in trust for the testator's widow, E C, for her life, with remainder to her infant chil- dren. He fraudulently misapplied the trust property, and under his bankruptcy E C was admitted to prove against hia estate. On the choice of assignees, she applied for leave to vote, but her application was refused by the Registrar, and on appeal by the Com- missioner ; but, on appeal, the Lords Justices held that she was sufficiently interested to be entitled to vote. Ex parte Cadwallader, in re James, 31 Law J. Rep. (n.s.) Bankr. 66. (6) What Property passes to, (1) In general. Under the Bankrupt Law Consolidation Act, 1849, a bankrupt, by force of his adjudication, is divested of whatever leasehold property he possessed at the period of his bankruptcy ; and the act does not reserve to him any right of electing to continue to be the owner of such property. Gartviright v. Glover, 30 Law J. Rep. (n.s.) Chanc. 324 ; 2 Gilf. 620. A deed of partnership contained a proviso that a withdrawing partner should not be entitled to credit for the value of the lease of certain mines vested in a trustee for all the partners in shares, according to the capital contributed by them respectively, but that the account to be taken should consist only of his share in the assets of the partnership other than the value of the lease, and that in the event of bank- ruptcy of any partner an account ahould be taken of his share and interest in the mines, except the value of the lease, which was not to be taken into account. One of the partners having become bankrupt, it was held, that such a stipulation was a fraud upon the Bankrupt Laws, and void as against the aeaignees in bankruptcy. -Whitmore v. Mason, 31 Law J. Rep. (n.s.) Chanc. 433 ; 2 Jo. & H. 204. A party bought land, &c., of a trader, and after- wards the trader was adjudicated bankrupt. A person holding the purchase-deed for the purchaser, was summoned, after the adjudication, under section 120. of the 12 & 13 Vict. c. 106, before a county court Judge, to produce the deed. The Judge or- dered it to be impounded, and the property to be delivered up to the assignees to be sold for the benefit of the creditors. Ex parte Cole, in re Att- water, 32 Law J. Rep, (N.s.) Bankr. 11. On appeal, the Lord Chancellor discharged the order, and the assignees were directed to pay the costs. Ibid. The 137th section of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), does not authorize the sale of the books of a solicitor who has become bank- rupt. Ex parte Roberts, in re Holden, 33 Law J. Rep. (n.s.) Bankr. 8. The interest of a bankrupt in property given to him contingently on hia obtaining hia certificate passes to hia aasignees in like manner as any other contingent interest. Damdson v. Chalmers; Perry v. Chalmers, 33 Law J. Rep. (n.s.) Chanc. 622 ; 33 Beav. 653, A testatrix gave real and personal estate to trus- tees, upon trust during the life of her nephew, then an uncertificated bankrupt, at their uncontrolled dis- cretion, to apply the income for the benefit of him, or hia wife, or his children, and as to the income which ahould not be applied, upon trust to invest the same ; but should he at any time obtain hia cer- tificate 80 as to enable him to hold and enjoy real and personal estate for hia own personal uae, enjoy- ment and benefit, then the testatrix directed that thenceforth during hia life and so long as he shall be able to hold and enjoy real and personal estate for his own personal use, enjoyment and benefit, the 48 BANKRUPTCY; (G) Assignees. whole income should be paid to him for his own use. The nephew never married, and after several years he obtained his discharge ; — Held, that the will con- ferred on the nephew a contingent interest in the income, which passed to the assignees, and, upon his obtaining his discharge, vested in them absolutely. Ibid. Whether payments made by the executors for the benefit of the bankrupt out of the income accruing previously to his obtaining his discharge were valid — qtuere. Ibid. By a marriage settlement real estate was vested in trustees for a term of 500 years, upon trust, after the death of the survivor of H and his wife, to raise, by sale or mortgage, 2fl00l. for the portions of their younger children. T, one of such younger children, assigned, by way of mortgage, his interest in the 2,000^., and notice of the mortgage was given to the surviving trustee of the settlement. Afterwards he executed a deed of further charge, of which, until after his bankruptcy, no notice was given to the trustee, and subsequently he became bankrupt. At the date of the deed of further charge the 2,0001. had not become raiseable: — Held, as between the owner of the further charge and the assignees in bankruptcy claiming under the reputed ownership clause, that T's interest under the settlement was a chose in action only, and not an interest in land ; and that the claim of the assignees were entitled to priority. In re Hughes, 33 Law J. Kep. (h.s.) Chanc. 725 ; 2 Hem. & M. 89. A & Co. contracted with B & Co. for the pur- chase of a large quantity of railway sleepers, to be delivered at intervals at the wharf of A & Co., and to be paid for on delivery. The sleepers arrived at the wharf of B & Co., in timbers of length suffi- cient when sawn asunder to make each two sleepers. After several deliveries had taken place, one of the firm of B & Co. called at the office of A & Co., and obtained from A an advance of 600?. on account of the last cargo of timber, which he represented to be, and which then was at the wharf of B & Co., and a portion of which had already been sawn into sleepers: — Held, that this was such a specific appro- priation of the timber and sleepers to A & Co. (who had possessed themselves of them) as to entitle them to retain them as against the assignees of B & Co., who had become bankrupt after the advance. Lang- ton V. Waring, 18 Com. B. Eep. N.S. 315. (2) Order and Disposition and Seputed Ownership. By a bill of sale A B conveyed all his goods to the plaintiflFfor the sum of 1001. It was provided that if A B, on a certain day named, or on such earlier day as the plaintiff, by notice in writing, should appoint, should repay the 1001. and interest, then the conveyance was to be void. Provided also, tiiat, after default in payment of princi pal or interest, the plaintiff should have power to sell the goods and pay himself all that was due for principal, interest and costs, and pay the balance to A B in the usual way. Provided further, that, until default, A B should hold, make use of and possess the goods. A B continued in pos- session of the goods until he became a bankrupt. After A B had committed an act of bankruptcy, but before he was adjudicated bankrupt, the plaintiff served him with a notice to repay the 1002. within two days, in accordance with the bill of sale ; but before the notice had expired A B had been adjudi- cated a bankrupt, and the messenger of the Court of Bankruptcy had taken possession of the goods: — Held, that the plaintiff was not entitled to recover the goods from the assignees, for that they were in the possession, order and disposition of the bankrupt with the consent of the true owner within the meaning of the 12 & 13 Vict. c. 106. s. 125. Spackman v. Miller, 31 Law J. Rep. (n.s.) C.P. 309 ; 12 Com. B. Rep. N.S. 659.- Writs of fi. fa. on judgments recovered by R against M were issued on the 22nd of January ; the sheriff seized the goods of M under these writs on the 23rd, and advertised a sale for the 30th ; M filed his petition for adjudication of bankruptcy in the district court, was duly adjudged a bankrupt, and the goods were claimed by the messenger of the Court on the 24th of the same month: — Held, that M's assignee was entitled to the goods as against R. Young v. Roebuch, 32 Law J. Rep. (n.s.) Exch. 260 j 2 Hurls. & C. 296. Section 103. of the Bankruptcy Act, 1861, — which enacts that " every adjudication against any prisoner for debt, so brought up as aforesaid, shall, unless the Court otherwise direct, have relation back . to the date of his commitment or detention," — has reference to sections 98. and 99 ; and therefore where a debtor was arrested under a cos. aa. and lodged in prison, and he afterwards petitioned in forma pau- peris and was brought before the county court and adjudicated a bankrupt under sections 98. and 99, the adjudication relates back to the date of the com- mittal to prison, and goods which were then in the order and disposition of the bankrupt with the con- sent of the true owner, though taken possession of by him before the adjudication, passed to the bank- rupt's assignees. BramweU v. Eglington, 33 Law J. Rep. (n.s.) Q.B. 130; 5 Best & S. 39. As section 103. makes the adjudication relate back to the commitment or detention absolutely and not merely as an act of bankruptcy, section 133. of the 12 & 13 Vict. c. 106. affords no protection in such a case. Ibid. Goods were assigned by S to the defendant by a bill of sale under seal in consideration of 50/. ad- vanced by the defendant, with a proviso that if S paid the 601. upon demand in writing given to him, or left at his last place of abode, the deed should be void, but in default of payment contrary to the pro- viso, "then at any time thereafter "it was to be law- ful for the defendant to take possession of the goods, which were to remain in S's possession until default. At the same time S accepted and gave the defendant a bill of exchange at four months for 501. to secure the same debt, and the defendant at once indorsed it over for value. On the 16th of February, the bill being still current, the defendant, knowing S to be in gaol under a ca. sa., left a demand in writing at his house, and took possession of the goods the same evening; S was adjudicated a bankrupt on the 23rd of February: — Held, assuming the 23rd of February to be the material date, that on that day the gooda were not in the order and disposition of the bank- rupt with the consent of the defendant, the true owner ; for that, if the defendant had been premature in taking the goods the same day as the demand, yet that did not prevent his taking possession in proper time before the 23rd ; and that the mere taking of BANKRUPTCY; (G) Assignees. 49 the bill of exchange did not suspend his remedy under the bill of sale. Ibid. QacEire — Whether section 103. applies to an ad- judication made by the Registrar under section 101. Ibid. To make a valid verbal contract for the sale of goods above the value of 10?. where nothing has been given to bind the bargain or by way of part payment binding upon the vendee, there must be an accept- ance and actual receipt, and such acceptance must be made with the consent of the vendor ; and until such acceptance, the property in the goods is not changed and the vendor may exercise his right to rescind the contract. And if under such circum- stances the contract has been rescinded, no act on the part of the vendee, or of his assignees in case of his subsequent bankruptcy, can effect an acceptance so as to change the property in the goods. Smith v, Hudson, 34 Law J. Rep. (n.s.) Q.B. 145 ; 6 Best & S. 431. Goods purchased under such a contract and sent by the vendor to a railway station, consigned to the order of the vendee, are not, whilst lying at the station, waiting the order of the vendee, and before any order given or other act done by him constituting an acceptance of the goods, in his " possession, order or disposition," with the consent of the true owner, so as, "upon his bankruptcy, to give his assignees any right to them under the 12 & 13 Vict. c. 106. s. 125, notwithstanding the goods were no longer in traimtu, and the right of stoppage therefore did not exist. Ibid. A, an innkeeper at Sheemess, being indebted to B, under what the jury thought sufficient pressure, on the 30th of May employed his own attorney to prepare a bill of sale of all his effects in favour of B, to secure an existing debt and a small further ad- vance (the amount being about a fair equivalent for the value of the goods), and sent it to B. On the loth of July B. sent a man to A's premises to paint out A's name, and on the 15th went down to Sheer- ness and took possession, leaving A there to manage the concern on his behalf. On the 15th A filed a peti- tion in bankruptcy, and on the 16th was duly adjudged bankrupt. In an action by the assignees to recover the value of the goods thus conveyed, the jury having found that the transaction was bona fide, and that possession was really and notoriously taken by B prior to the bankruptcy, — Held, that the transaction could not be avoided, either as an act of bankruptcy (there being no relation) or as a fraudulent prefer- ence; and that the goods were not in the order and disposition of A at the time of his bankruptcy. Shruisole v. Suasa/im, 16 Com. B. Rep. N.S. 452. A transfer of shares in a jojnt-stock company was executed by a shareholder, a blank being left for the name of the transferee and for the date. On the day on which the transfer was executed by the transferor, the assistant secretary certified on the transfer, on the application of the purchaser, that the certificates for the shares were at the company's oflSce, the certificates not having yet been issued to the share- holders. Before the name of a purchaser was in- serted in the transfer, the transferor became bank- rupt. The assistant secretary of the company in his evidence said that after the certificate which he had made on the transfer, a transfer of the shareswould not have been permitted except under the above transfer Digest, 1860—65. or upon the production of that transfer cancelled: — Held, by one of the Vice Chancellors, that the shares were in the order and disposition of the transferor at the date of his bankruptcy, but, upon appeal, this decision was reversed, it being considered, that the shares were neither in the order and disposition nor in the reputed ownership of the transferor at that time. Morris v. Ccmnan, 31 Law J. Rep. (n.s.) Chanc. 425. A having a contract with the Admiralty to deliver coals at certain foreign ports at stipulated prices, shipped coals in performance of the contract, and in pursuance of the terms of the contract, deposited three parts of the bills of lading with the Admiralty, retaining a fourth part himself, which he deposited, together with the policies on the ships, with B, to secure an advance. The deposit was accompanied by a letter, stating that it was made to secure the amount of the advance, and undertaking, in case of default in repayment at maturity or on demand, to enable B to receive the value of the cargoes. B having giving no notice to the Admiralty until after he, B, was aware of an act of bankruptcy by A, on which an adjudication was afterwards founded, — Held, that the moneys which became due from the Admiralty passed to the assignees, under the order and disposition clause of the Bankrupt Law Consoli- dation Act, North V. Gumey, 1 .lo. & H. 509. Held, also, that the goods having been delivered, the owners from whom the ship had been chartered had no claim against the said moneys for unpeiid freight. Ibid. Costs being given against all the defendants, a direction was added, that this should be without prejudice to any question as to contribution between them. Ibid. The order of the Court of Bankruptcy for sale of goods, as in the reputed ownership of a bankrupt is' ex parte; and, semlle, it cannot be appealed against by the true owner. Mather v. Lay, 2 Jo. & H. 374. But the Court of Chancery has jurisdiction, not- withstanding such order, to restrain a sale and deter- mine the rights of the parties. Ibid. An application by the true owner to the Court of Bankruptcy for a stay of proceedings held not to be a bar to a subsequent bill for injunction to stay a sale. Ibid. A mortgaged a policy of insurance, and also a share in his father's estate to B. The executors under the father's will paid their trust funds into court under the Trustees' Relief Act. B, the mortgagee, gave notice of his incumbrance upon the policy to the insurance company, and gave notice of his mort- gage upon the estate to the executors, and obtained a stop-order upon the fund in court. He then sub- mortgaged both the policy and the estate to C, who gave notice of his incumbrances to the executors, but did not give notice to the insurance company, nor did he obtain a stop-order upon the fund in court. B became bankrupt: — Held, that the policy remained in the ordef and disposition of the bank- rupt,but'that the notice to the executors was sufH- cient to take the interest in the estate out of his order and disposition without any stop-order upon the fund in court. Thompson v. TomJcins, 31 Law J. Rep. (n.s.) Chanc. 633; 2 Dr. & Sm. 8. It was also decided that the costs which had arisen out of the litigation between the assignees and the so BANKRUPTCY; (G) Assignees. mortgagee were not to be borne by the general estate ; and as each party had been successful in one part, neither of them would be entitled to any costs as to the controversy. Ibid. By agreement dated the 11th of April, 1862, B & B, shipbuilders at Sunderland, contracted to build a vessel for F, who agreed to pay for the same upon certain terms therein mentioned. On the 12th of April, 1862, B &. B, by deed, assigned the contract to S, to secure an antecedent debt, and an advance then made (amounting together to 500/,), and also future advances; and by the assignment it was de- clared that, subject to F's right, S should be entitled to a lien on the vessel for the above sums. On the 19th of May, 1862, the agreement of the 11th of April, 1862, was cancelled, and by memorandum of agreement, dated the 20th of May, 1 862, B & B con- tracted to complete the vessel for, and to sell it to, S for 1,150/,, of which the 600/. already advanced was to be taken in part payment. Neither the deed of the 12th of April, 1862, nor the agreement of the 20th of May, 1862, was registered under the Bills of Sale Registration Act (17 & 18 Vict, c. 36). On the 2nd of June B & B became bankrupt: and the vessel was then incomplete. Upon a bill filed by S against the assignees in bankruptcy of B & B, for the purpose of obtaining a declaration that S was entitled to a lien or charge on the vessel, or for specific performance of the agreement of the 20th of May, 1862, one of the Vice Chancellors decided that S was entitled, under the deed of the 12th of April, 1862, to a lien or charge upon the vessel, and a sale thereof was ordered. Upon appeal, the Lords Justices held that the lien under the deed of the 12th of April was destroyed, either by the cancella- tion of the agreement with F, or by the fact that the 500/. thereby secured was merged into and taken as part payment of the purchase-money under the agree- ment of the 20 th of May ; but that under the latter instrument the plaintiff was entitled to a lien on the unfinished ship for the 500/, actually advanced. Their Lordships also held, that no registration of the instrument of the 20th of May was necessary, under the Bills of Sale Act, and that the vessel was not in the order and disposition of the builders as reputed owners at the time of their bankruptcy within the meaning of the Bankrupt Act. Swainsfon v. Clay, 32 Law J. Rep. (n,s,) Chanc. 603 ; i Giff. 187. Until the Court has made an order for the pay- ment of costs out of a fund in court, the solicitor has no lien on such fund for such costs ; therefore, where the solicitor to a party in a suit assigned the costs due and to become due to him in the suit, and subsequently became insolvent, and an order was afterwards made for the payment of the costs out of a fund in court, and the official assignee in insol- vency of the solicitor claimed the costs as against the person to whom they had been assigned as being under the order and disposition clause, on the ground that (though notice had been given to the solicitors for the plaintiff in the suit) no stop order had been obtained on the fund in court: — Held, that it was not necessary to get a stop order on the fund in court, and therefore that the person taking under the assignment was entitled to the costs. Lord v. Cokin, 2 Dr. & S. 82, In December 1861 the bankrupt contracted with W to build a barge for him, to be paid for in bricks ; the barge to be completed on the 5th of June 1862. The bankrupt hired a yard for a certain number of months, for the purpose of completing the contract, which period expired before the completion of the work, and W then hired the yard. In June it was agreed by the bankrupt in writing that the barge should be held by W as a security for advances made by him. In July the bankruptcy took place. The advances made by W exceeded the amount of work done and materials supplied by the bank- rupt : — Held (reversing the decision of the County Court Judge sitting in Bankruptcy), that W had a lien upon and was entitled to hold the barge, unless the assignees chose to complete the contract. Ex parte Watts, in re Atiwater, 32 Law J. Rep. (n.s.) Bankr. 35. The object of the 19th section of the Joint-Stock Companies' Act, 1856, enacting that " no notice of any trust, express or implied or constructive, shall be entered on the register or receivable by the com- pany," was that the company itself should not be bound by any notice of any trust, but the section does not prevent an equitable mortgage by deposit of shares from being so far completed by notice as to be valid as against the assignees in bankruptcy of the mortgagor, claiming them imder the reputed ownership clause of the Bankruptcy Act. Ex parte Stewwrt, in re Shelley, 34 Law J. Rep. (n.s.) Bankr. 6. The directors and secretary of a joint-stock com- pany joined in depositing the certificates of shares belonging to them with a banking company, as a security for money advanced : — Held, that this transaction amounted to a sufficient notice to the company of an equitable assignment of the shares belonging to the secretary, so as to support the title of the equitable mortgagees against his assignees in bankruptcv. Ex parte Boiilton, in re SketcMey (1 De Gex & J. '163 ; Ibid. Bankr. App. Cas. 37 ; 26 Law J. Rep. (n.s.) Bankr, 45) distinguished. Ibid. (3) Booh Debts. The 137th section of the 24 & 25 Vict. c. 134, which empowers a bankrupt's assignees to sell the book debts of the bankrupt, is not confined to debts entered in a book, but applies to all such debts as would, in the ordinary course of the bankrupt's business, be entered in his books. Shipley v. Mar- shall, 32 Law J, Rep. (n.s.) C.P. 258; 14 Com. B. Rep. N.S. 566. A bankrupt who, in addition to the trade of a saddler, had been engaged in the purchase and sale of copyrights of newspapers, sold, shortly before his bankruptcy, the copyright of a newspaper of which he was the proprietor, but made no entry of the sale in any book, except his diary. One of the terms of the sale was, that the purchase-money should be secured by a mortgage on the newspaper: — Held, (Williams, J. dubitante), that the purchase-money due to the bankrupt at the time of his bankruptcy was a book debt within the meaning of the 24 & 25 Vict, c, 134, s, 137, the right to sue for which would pass on a sale of such debts by the assignees under that section, though the right to insist on the mort- gage would not so pass. Ibid. (4) Chx>se in Action of Bankrupt's Wife. Where a right of action of the wife of a bankrupt BANKRUPTCY; (G) Assigkees. 51 or insolvent is of such a nature that if vested in the bankrupt or insolvent it would pass to his assignees, the interest of the banlsrupt or insolvent in such right of action passes to his assignees. RicKbeU v. AUocamder, 30 Law J. Rep. (n.S.) C.P. 268 ; 10 Com. B. Rep. N.S. 324. A right of action for the conversion, before the mar- riage, of the wife's goods falls within this rule. Ibid. An action brought to enforce such a right must be brought in the names of the wife and of the assignees, who are necessary parties ; and an action by husband and wife must fail. Ibid. (5) Lease. The assignees of a bankrupt are bound to exercise their option of accepting a lease in which the bank- rupt is lessee within a reasonable time ; and, in eject- ment, where title is traced through a bankrupt's assignees, it is a -question for the jury whether, under all the circumstances of the case, the assignees ac- cepted the lease within a reasonable time. MacHey V. Pattmden, 30 Law J. Rep. (n.S.) Q.B. 225 ; 1 Best & S. 178. To a declaration for breaches of covenants con- tained in a lease, in writing, of certain premises from the plaintiffs to the defendant, the defendant pleaded his discharge in bankruptcy, a refusal by the cre- ditors' assignee to accept the lease, his own execution of a surrender of the lease to the plaintiffs, his tender of the deed of surrender, and offer to deliver up possession to them, without, however, alleging that the lease was lost or destroyed, or that he was pre- vented from giving it up : — Held, that the plea was bad. CoUes v. Evanson, 34 Law J. Rep. (n.S.) C,P. 320; 19 Com. B. Rep. N.S. 372. (6) Sequestralwn. If a judgment creditor of a beneficed clergyman, issue a sequestration, and, the clergyman becoming bankrupt, his assignee under the bankruptcy issue a second sequestration, the former sequestration will remain valid and have priority, even though it were not published till after the filing of the petition in bankruptcy. Hophinsv. Clarke (Ex. Ch.), 33 Law J. Rep. (n.S.) Q.B. 334 ; 5 Best & S. 753— affirming the judgment below, 33 Law J. Rep. (U.S.) Q.B. 93. (7) Under Second BqmJcruptey. The plaintiffs were assignees in bankruptcy of one K who, at the time of the, adjudication under which the plaintiffs were appointed, was already an uncer- tificated bankrupt. 'The plaintiffs sued the defendant in trover for goods which K had acquired after his -first bankruptcy, and which he had fraudulently assigned to the defendant. The assignees under the first bankruptcy did not in any manner interfere: — Held, that the second bankruptcy was not void ; that the title of the bankrupt to the property after ac- quired, which was good against every one except the assignees under the first bankruptcy, was transferred to the assignees undeir the second, and that the first assignees not having interfered, the second assignees were entitled to maintain this action. Morgan v. Knight, 33 Law J. Rep. (if.S.) C.P. 168 j 15 Com. B. Rep. N.S. 669. (e) Landlord's Right to Arrears of Rent. On the 27th of March, 1861, J P being then » trader, committed an act of bankruptcy by a frau- dulent conveyance of all his goodsi on the Hth of October his landlord levied a distress for four years' arrears of rent; on the same day the 24 & 25 Vict. c. 134. came into operation, and on the 17th of October, J P, being then a non-trader, was adjudi- cated a bankrupt upon his own petition, under the 75th section of that act. The 129th section of the 12 & 13 Vict. c. 106. enacts, that no distress for rent made and levied after an act of bankruptcy, whether before or after the issuing of the fiat or the filing of the petition for adjudication of bankruptcy, shall be available for more than one year's rent accrued prior to the date of the fiat or filing of the petition : — Held, that to bring the case within that section the act of bankruptcy must be one to which the title of theassignees could relate; that no such relation existed to the act of bankruptcy of the 27th of March ; and that, therefore, the landlord was entitled to retain the four years' rent against the assignees. PauU v. Best, 32 Law J. Rep. (h.s.) Q.B. 96 ; 3 Best & S. 537. (d) Rights and LiahUities. Since the custody and possession of a bankrupt's estate has been vested in the official assignees, the mere relative position of trade assignees and mes- senger will no longer suffice to create a liability in the trade assignees to pay the messenger, without an express promise to pay, or an express employ- ment of the messenger; for the messenger, in receiving the property, and taking care of it, prima facie represents the official assignee. Stubbs v. Twynam, 30 Law J. Rep. (n.s.) C.P. 8. An official assignee of a district court of bank- ruptcy having given his a.ssent to the bringing of an action in his name jointly with that of the trade assignee for the recovery of part of the bankrupt's estate, and, the action proving unsuccessful, the trade assignee having paid the costs, — Held, that he was entitled to sue the official assignee for contribution. Bevan v. Wkitmore (Ex. Ch.), 19 Com. B. Rep. N.S. 763 — affirming the judgment below, 15 Com. B. Rep. N.S. 438. M in March, 1859, consigned oats to the corre- spondents of the plaintiffs at Melbourne for sale, the proceeds to be remitted to the plaintiffs, and against this consignment the plaintiffs accepted in favour of M a bill at four months for 600/., it being agreed that the plaintiffs should be repaid that sum out of the proceeds of the sale of the oats, — any deficiency to be made good by M, who was also to pay interest to the plaintiffs on the 600/. from the time the bill came due till the arrival in this country of the proceeds of the oats. In June, 1859, M became bankrupt, the plaintiff's acceptance remaining in his hands unne- gotiated. The assignees of M took possession of the bill, and paid it into the Bank of England, to the credit of the accountant in bankruptcy for the estate of M ; and the bill was presented to the plaintiff's -bankers at maturity (July, 1859), and paid by them, the plaintiffs being in ignorance of the fact of its having remained in M's hands unnegotiated. The account sales of the shipment were received from Melbourne in March, 1860, shewing that M's estate had been overpaid to the extent of 270/. : — Held, that the plaintiffs were not entitled to recover back that money from the assignees. De Pass v. Bell, 10 Com. B. Rep. N.S. 517. 52 BANKRUPTCY; (H) Op the Bankrupt. (c) Actions hy. A notice to the effect that A has committed an act of bankruptcy by filing a petition for a private ar- rangement with his creditors, and that the sheriffs must not sell the goods of A seized under a writ of fi. fa. delivered to the sheriff on the day of the filing the petition (such petition having been subse- quently dismissed and A adjudged a bankrupt on a creditor's petition), is notice of an act of bankruptcy committed by A at the date of filing the petition. Edwards v. Oabrid, 30 Law J. Rep. (n.s.) Exch. 245 ; 6 Hurls. & N. 701. The defendant, a creditor, obtained a judgment and issued a Ji. fa., under which the sherifi^ seized the debtor's goods on the 6th of July ; on the 9th the debtor filed a petition for an arrangement with his creditors under section 811. of the 12 & 13 Vict, c. 106 ; on the same day notice of this was given to the sherifls, by the solicitors to the petition ; the sheriffs sold to the execution creditor on the 13th ; on the 7th of August the petition for arrangement was dismissed by the Court of Bankruptcy, and A was, the same day, adjudged bankrupt on the peti- tion of another creditor : — Held, in an action of trover by the assignees of A, against the sheriffs and the execution creditor, that the assignees were entitled to recover the proceeds of the sale. Ibid. The defendant, a merchant at Hull, kept an account with the Hull Bank, upon the terms that they should procure P & Co., their London agents, to accept on their credit bills draivti by the foreign correspondents of the defendants against their coht signments to him, and of which P & Co. were adr vised by the Hull Bank. The defendants paid the Hull Bank a quarter per cent, on the amount of the acceptances, and they paid P & Co. a fixed annual sum for transacting their London business. When a bill was accepted by P & Co. the Hull Bank debited the defendant with the amount, and they charged him interest from the time the bill was due. The Hull Bank became bankrupt, and P & Co, paid all bills accepted by them which were due after the bankruptcy : — Held, in the Exchequer Chamber (reversing the decision of the Court of Exchequer), that the assignees of the Hull Bank, and not P.&Co., were entitled to recover from the defendant the amount of such bills, Barkworih v, EUermom, 6 Hurls, & N. 605. (H) Of the Bankeupt. (a) Protection from Arrest and other Process, A bankrupt having surrendered, his examination was commenced, and adjourned to a subsequent day. Before that day the Commissioner granted a certificate— under the 12 & 13 Vict. c. 106. s. 257. and Schedule (B, a.) — withdrawing protection, at the instance of a creditor, and a ca. sa. was sued out of the Court of Exchequer, under which the bank- rupt was arrested by the sheriff, before the day to which the examination had been adjourned. After that day another certificate was granted, and a ca. sa. under it from this Court was lodged with the sheriff as a detainer Eigainst the bankrupt : — Held, assuming the bankrupt to have been absolutely pri- vileged from arrest by the 112th section until he had finished his examination, and the original arrest consequently to be illegal, that the detainer was good, being lodged after the privilege had ceased ; for that the principle applicable to such a case is, that whenever an arrest by the detaining party would have been good, a detainer by him, being equivalent to an arrest, is good also, unless it appears that the first arrest was a wrongful act of the sheriff himself, or that there was some collusion between the detaining party and the creditor making the arrest, or between the detaining party and the sheriff. Bateman v. Preston, 30 Law J. Rep, (n.s.) Q.B. 133; 3E. &E. 578. A bankrupt after adjudication, and up to final examination, is protected from arrest under the 12 & 13 Vict. c. 106, without the Commissioner's indorsement of protection on the summons. The Commissioner has no authority to deprive him of protection up to that time. Ockford v. Preston; and Chapman v. Preston, 30 Law J. Rep. (n.s.) Exch. 88 i 6 Hurls. & N. 466. A Commissioner's certificate, under section 267. in the Form given in Schedule (B, a.), certifying that the bankrupt is not protected by the Court from process, granted by the Commissioner before the day to which the final examination of the bankrupt has been adjourned, is void; a ca. sa. sued out on it is invalid, and an arrest on such ca. sa. illegal ; and this Court, although it has no j urisdiction over the Commissioner's certificate, will set aside the writ and discharge a bankrupt arrested on such writ from custody. Ibid, A ca. sa. issued on a ( B, a.) certificate granted on the day to which the final examination has been adjourned, but after the termination of such exami- nation, though valid, will not operate as a detainer against a bankrupt already in custody under a writ founded on a void certificate ; for, whether the cir- cumstances under which the sheriff arrested would render him liable to an action or not, if the custody under the original arrest be illegal, no subsequent writ, though valid, can operate as a detainer. Ibid. Per Pollock, C.B. and Wilde, B., d/iMiamte Ma/rtin, B., the principle of the decision in Hooper V. Lane embraces this case. Ibid. A petition and order for protection of a debtor's property from all process under section 211. of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), did not affect property levied and seized under a writ of f,. fa. previous to the petition and ord^r ; and the sheriff was therefore bound to proceed to a sale notwithstanding notice of such order. Bottomley v. Pfeyward, 31 Law J. Rep. (n.s.) Exch. 500 ; 7 Hurls. & N. 662. The defendant in August, 1860, presented a peti- tion to the Court of Bankruptcy, under the Bank- rupt Law Consolidation Act, 1849, s. 211, and obtained the usual order for the protection, which was from time to time renewed until the 6th of June, 1861, and hjs proposal (to pay 10«. in the pound by certain instalments) was assented to by the requisite number of creditors, and approved and confirmed by the Commissioner. On the gth of March and 4th of April, 1861, the plaintiffs obtained two judgments against the defendant ; on the 21st of April, 1861 (and whilst his protection was in force), they com- menced an action against him upon those judgments. The Court refused to stay the proceedings therein. Naylor v. Mortimore, 10 Com, B, Rep. N.S, 566. BANKRUPTCY; (H) Op the Bankbtjpt. 53 A bankrupt having surrendered, his examination waa commenced on the 6th of November and ad- journed to the 3rd of December. On the 29th of November the CommiBsioner, at the instance of a creditor, granted a certificate, under the 12 & 13 Vict. c. 106. 8. 257, and Schedule (B, a.), and a ea. sa. was sued out of the Court of Exchequer, under which the bankrupt was, on the lat of December, arrested. On the 4th of December another certifi- cate was obtained, and another ca. sa. was sued out of the Court of Exchequer at the instance of another creditor, and lodged with the sheriff, On the 15th of January another certificate was obtained, and another ca. sa. was sued out of the Court of Queen's Bench, at the instance of another creditor, and lodged with the. sheriff. The Court of Exche- quer held that the first ca. sa. was invalid and the arrest upon it illegal; and that tilthough the second ca. sa. was valid, the bankrupt could not be detained in custody, the original arrest being illegal. The Court of Queen's Bench, however, held, that the detainer upon the ca. sa. from that Court was good. A writ oi habeas corpus having been obtained from the Court of Chancery, it was held, that both the original arrest and the subsequent detainers were illegal, and that the bankrupt was entitled to his discharge. Bx parte Preston, 30 Law J. Rep. (if.s.) Chanc. 460 ; 3 De Gex, F. & J. 61^. Three partners were sued upon a promissory note given by them for a partnership debt, and judgment was recovered agaihst all. After suit, but before judgment, C, one of the partners, executed a deed under section W%. of the 24 & 25 Vict. c. 134, by which he assigned all his estate to trustees for the benefit of his creditois, no reference being made to the partnership or its assets or liabilities. The deed was registered under section 198. of the same act, and a certificate obtained and notice given. C was arrested under the judgment, and on application for his discharge one of .the Commissioners refused to release him ; but, on appeal, held, that C was pror tected from arrest as well from joint as from separate creditors. In re Oastleton, 31 Law J, Kep. (n.s.) Bankr. 71. The discretionary power giyen to the Court of Bankruptcy by the 112th section of the Bankruptcy Law Consolidation Act, 1849, of releasing from pri- son a bankrupt who has been arrested for debt, is only to be exercised for the purpose of advancing the interests of the creditors under the bankruptcy, and is not given for the benefit of the bankrupt. £ip parte Stua/rt, in re Waugh, 33 Law J, Rep. (n.s.) Bankr. 4. Therefore where a bankrupt, who had left England jshortly before the adjidicatioa of bankruptcy, failed to surrender at the day appointed and remained abroad for about five years, making occasional yisits to England under a false name, and only applied for leave to surrender after he had been arrested on mesne proce8s,-r-Held, that the mere circumstance that his discharge might afford some additional facile ity in reference to the accounts, was not a sufficient . ground, under the other circumstances of the case, for discharging the bankrupt. Ibid. Whether the 112th section applies to the case of .a bankrupt in custody upon mesne process — qucere. Ibid. The first part of the 112th section of the Bank- rupt Law Consolidation Act, 1849, empowering the Court of Bankruptcy to give protection from arrest to a bankrupt not in prison at the date of the adju- dication has no retroactive operation ; and the Court has no power under that part of the section to release from prison a bankrupt who was in custody under final process at the time of obtaining his protection. Ex pq/rte Kimberley, in re Kimherley, 34 Law J. Rep, (if.s.) Bankr. 28, And, semhle, the latter part of the same section giving the Court a discretionary power to order the release of a bankrupt who having surrendered and obtained his protection, is in prison for debt at the time of obtaining such protection, does not apply to the case of a bankrupt who has passed his last examination, and has been taken in execution upon final process while without protection, Ibid. A bankrupt passed his final examination, and ob- tained his order of discharge, suspended for twelve months, with protection for three months renewable from time to time on giving notice to the assignees and opposing creditors. After the expiration of the three months the bankrupt was taken into custody under an execution, and he then applied, upon notice, for a renewal of his protection and a release from custody. He obtained a renewal of the protec- tion ; but upon the application for a release from custody, it was held, affirming the decision of one of the Commissioners, that the Court had no power under the first part of the abovcsmentioned section to grant the application, and that whether it had or had not a discretionary power under the latter part of the same section, it was not a case for the exercise of that discretion. Ibid. (6) Indictqile Offences, The prisoner, a bankrupt, having failed duly to surrender himself, and having thereby committed a felony under the statute 12 & 13 Vict. c. 106. s. 251, a warrant of a Bankruptcy Commissioner issued for his apprehension. An information also for the offence was laid before a Magistrate, who issued his warrant thereon to arrest the prisoner. All these proceedings took place before the 11th of October, 1861, on which day the new Bankruptcy Act, 1862, 24 & 25 Vict, c, 134, came into operation. Section 230. of that act repeals the former act, but provides that that repeal shall not affect any proceeding pending or any penalty incufred for anything done prior to the commencement of the new act : — Held, that there were proceedings pending against the pri- soner, and also a penalty incurred by him, for an act done by him prior to the new act, and therefore that he might be indicted subsequently to the 11th of October 18Q1, for the felony under the provisions of the old act ; though as to these matters the act was repealed, and though the new act made a similar offence committed after the 11th of October 1861 a misdemeanor only. J2. v. Corss Smith, 31 Law J. Rep. (n.Sj) M.C,"105'; 1 L, & C. 131. An indictment against a bankrupt for embezzling part of his estate with intent to defraud his cre- ditors, alleged that he committed an act of bank- ruptcy " by being unable to meet his engagements with his creditors, and by filing his petition in the Court of Bankruptcy for the B district, for adjudi- cation of bankruptcy against himself"; and that afterwards, on the said petition being so filed, he was 54 BANKRUPTCY; (H) Of the Bankkupt. adjudged a bankrupt. It did not state that he had filed a declaration of insolvency : — Held, that the indictment was bad. R. v. Massey, 32 Law J. Rep. (n.s.) M.C. 21 ; 1 L. & C. 206. A count of an indictment, laid under the 221st section of the Bankruptcy Act, 1861, charged that the defendant was adjudged bankrupt in the Liver- pool District Court of Bankruptcy, and that, upon his examination in the said court, with intent to defraud his creditors, he did not fully and truly dis- cover to the best of his knowledge and belief all his property, to wit, all his personal property in money and goods ; and did not, as to part of his property, fully and truly discover, to the best of his knowledge and belief, how and to whom and for what conside- ration and when he had disposed of, assigned or transferred such part thereof, to wit, l,000i., 1,000 sacks of corn, 10 horses, &c. The defendant having been found guilty on this count, and having brought a writ of error, — Held, that, at all events after verdict, the count was good ; that the offence being charged in the words of the statute, any want of particularity was cured, after verdict, by the 7 Geo. 4. c. 64. s. 21; and that if the count charged two offences, duplicity was not ground of error. Nash v. the Queen, in error, 33 Law J. Rep. (n.s.)M.C. 94; 4 Best & S. 935. Quoere — Whether the count charged two offences. Ibid. (c) Evidence. If a person adjudicated bankrupt take no steps within the prescribed period to annul the adjudica- tion, the London Gazette containing the advertise- ment of his bankruptcy is oonclusivp evidence of the bankruptcy in criminal as well as in civil proceedings taken against him. R, v. Levi, 34 Law J. Rep. (n.s.) M.C. 174 ; 1 L. & C. 597. (I) Arbangements under the Control of the Court. The defendant petitioned the Court of Bankruptcy for protection, under section 211. of the 12 & 13 Vict. u. 106, and made a proposal for the benefit of his creditors. The Commissioner declared the de- fendant a bankrupt, and adjourned the proceedings into open court. There was an appeal against this order, which was reversed, and a further order of adjournment was then made by the Commissioner in order that a fresh proposal might be made by the defendant, which proposal was eventually accepted by a resolution assented to by more than three-fiftha in number and value of the creditors, and the Com- missioner granted a certificate of conformity under section 221. The plaintiffs were creditors of the defendant upon three bills of exchange at the time the latter petitioned the Court of Bankruptcy for protection, and they proved their debt at the sitting appointed for that purpose. Subsequently, they com- menced two actions on the above three bills of exchange and recovered judgment therein, and upon these two judgments the present action was brought : — Held, that the certificate, if a bar at all, was as complete a bar to the action on the judgments as to an action to recover the original debts on which those judgments were founded. Naylor v. Morti- more, 33 Law J. Rep. (n.s.) C.P. 273; 17 Com. B. Rep. N.S. 207. In respect of a debt owing by the defendant to the L Company, an unincorporated bank, the assent to the above proposal was given by a person professing to hold a letter of attorney, as required by sec- tion 217. This letter of attorney was itself under seal, but it was executed by the manager of the com- pany, who was not authorized by any instrument under seal. The company had ratified the act of their manager, and accepted the composition: — Held, that the letter of attorney under which assent was given on behalf of the L company was sufficient. Ibid. The proposal accepted by the creditors provided that payment of the composition should be made on a certain day, partly in cash and partly in promis- sory notes ; and that payment of the promissory notes should be guaranteed by the bond of one H. In carrying out this arrangement, some of the creditors were paid wholly in cash, instead of being paid partly in cash and partly in prcffnissory notes ; others were paid after the time stipulated for, and the bond which was executed was subject to a condition, that if proceedings in bankruptcy were taken against the defendant it should be void. But all the creditors except the plaintiffs, who refused to receive it, were paid the full amount of their composition in accord- ance with the proposal :t;— Held, that the arrangement had been carried out in conformity with the proposal; that it was competent for the defendant to pay some of the creditors their instalments in a manner other- wise than provided for, provided all were satisfied ; and that the condition in question did not vitiate the bond, for that, under the circumstances, there was not at any time any means by which the bond could have been avoided under the condition, by any person whatever. Ibid. Held, also, that the proceedings subsequent to the appeal were rightly continued. Ibid. A B was in trade for thirty years, and was also a farmer. He never took stock. A London firm, with whom he principally did business, were in the habit of drawing bills upon him, in the nature of accom- modation bills, which he accepted. The London firm failed, and A B then stopped payment ; and it appeared that he had been insolvent two years before, but he did not then know the extent of his debts and liabilities. He presented a petition for arrangement, but upon the opposition of a small number of his creditors, the Commissioner, under the 223rd section of the Bankrupt Law Consolidation Act, 1849, adjudged him a bankrupt as having post- poned the presentation of his petition longer than was excusable. This order was, however, reversed on appeal. Ex pa/rle Mortimore, in re Mortimore, 30 Law J. Rep. (n.s.) Bankr. 17; SDeGex.F. &J. 599. Observations as to accommodation bills. Ibid. (K) ARBAHGEMEiTTS B¥ DeED. [See title Debtor and Creditor.] (L) Certificate and Order of Discharge. (a) Grant of, in general. A trader was adjudged bankiupt in 1851, and his certificate was wholly refused by one of the Commis- sioners ; and, on appeal, the judgment was affirmed, on the ground that the bankrupt had engaged in BANKRUPTCY; (L) Ceetifioate and Oeder op Dischakoe. 55 gambling in stock within the 201st section of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), which section is repealed by the act of 1861). After a lapse of ten j'ears, during which he had lived abroad, but had there been sued by a cre^ ditor holding a security provable under the bank- ruptcy, and was imprisoned at his suit for a period of nine months, he applied to one of the Commis- sioners for his discharge under the 160th section of the act of 1861 (24 & 25 Vict. u. 134), but his Honour refused to order the same, principally on the ground of his going and remaining abroad ^ter the refusal of his certificate ; — Held, on appeal, that he was entitled to an absolute and unconditional dis- charge, tn re Maiheaon, Si Law J. Rep. (n.Si) Bankr. 23. The Court will not lay down any general rule as to the granting an order of discharge under the above act of 1861, but each case must depend upon its own individual circumstances. Ibid. In the inquiry into the circumstances, acts which, under the 201st section of the act of 1849, would constitute offences disentitling a bankrupt to any certificate are not to be taken into the consideration of the Court, that section having been repealed. Ibid. Where a bankrupt had omitted certain contracts and property from his statement of accounts, one of the Commissioners had adjourned the further hear- ing of an application for his discharge sine die, with limited protection under the 110th section of the Bankruptcy Act, 1861, but the Lords Justices (with- out expressing any opinion on the bankrupt's right to an order of discharge) gave him leave to appear again before the Commissioner. In re Delamere, 31 Law J. Rep. (n.s.) Bankr. 35. A bankrupt applied for his order of discharge under the 158th section of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), when one of the Commis- sioners suspended the order for eighteen months without protection, on the ground that the bankrupt had falsely represented an accommodation bill as a trade bill. The bankrupt denied the false represen- tation, and appealed. The Lords Justices considered that the fact of the falsehood of the representa- tion was doubtful, and that it was also doubtful whether there was any power to suspend the dis- charge of a bankrupt the proceedings in whose bank- ruptcy were pending at, the time the act of 1861 came into operation, on account of offences punish- able under the repealed 2S6th section of the Conso- lidation Act, 1849 (12 & 13 Vict. c. 106), and therefore they thought it best and the right course to issue an immediate discharge. In re Bond, 31 Law J. Rep. (n.s.) Bankr, 47, Qucere — Whether there is any power to suspend the discharge of a bankrupt, the proceedings in whose bankruptcy were " pending" at the time the act of 1861 came into operation, by reason of his having been guilty of offences punishable under the re- pealed section of the act of 1849, but for which no punishment is provided by the act of 1861. Ibid, D and B, partners, borrowed, in 1854, 1,000/. on their joint personal security. B, in 1859, retired from the partnership, but the debt continued upon the security of D only, and was made payable in 1869. In 1861, D, being sued for arrears of interest, petitioned for adjudication, and was adjudged bank- rupt, and the only debt proved was the 1,000^. The bankrupt's examination shewed insolvency for a period of ten years before the adjudication. One of the Commissioners having granted an unconditional order of discharge, the Lords Justices, on the appeal of the assignee, suspended the order and granted another protecting the bankrupt from molestation in respect of debts under the adjudication, but leaving after-acquired property liable for all debts proved or provable under it. Eec parie Hewitt, in re Drink- water, 31 Law J. Rep. (n.s.) Bankr. 83. Where proceedings under the bankruptcy have been suspended under the llOth section of the 24 & 2S Vict. c. 134, and the bankrupt has not made a full discovery of his estate, it is doubtful whether under the above section, he is entitled, as of right, to an order of discharge, or only entitled to apply for the order which may be granted or with- held on consideration of his general conduct. In re Delamere, 31 Law J. Rep, (n.s.) Bankr. 67. The discretion of the Court as to refusing or sus- pending a certificate to the bankrupt which existed under the Bankrupt Law Consolidation Act, 1849, is not continued by the act of 1861 as to the order of discharge, but the bankrupt is entitled to an order of discharge unless he be guilty of any of the offences mentioned in the latter act. In re Mew and Thome, 31 Law J. Rep. (n.s.) Bankr. 87. The bankrupt's father was a manufacturer living at G, and having a mill at M, four miles distant. The bankrupt was in the employ of his father, and also carried on business on his own account at M, where he slept during five nights of the week, return- ing to his father's house at G on Saturday, and remaining with him as part of his family till Monday. In his petition the bankrupt described himself merely as "of G, manufacturer." Whether this was a misdescription upon which the adjudication might be annulled, qucere; but held, that it was no ground for reversing an order of discharge. Ex parte Craltree, in re Taylor, 33 Law J. Rep. (n.s.) Bankr, 33. An action founded on tort is not an action to recover money due within the meaning of the 159th section of the Bankruptcy Act, 1861, and a. vexa- tious defence to such an action is therefore no ground for refusing the order of discharge. Ibid. In re Mew and Thorne (31 Law J. Rep. (n.s.) Bankr. 87) adhered to. Ibid. For a malicious injury done before the act of 1861 came into operation a verdict with damages was returned by a jury against B. He afterwards was adjudicated bankrupt upon his own petition; and one of the Commissioners granted him an order of discharge. On appeal, the Lords Justices differed in opinion, the Lord Justice Knight Drmce consi- dering that it is not within the power of the Court to refuse orsuspend the order of discharge when the bankrupt has not been guilty either of conduct amounting to a misdemeanor under the act of 1861, or of one or more of the offences enumerated in the third paragraph of its 169th section ; but the Zord Justice Turner dissented, being of opinion that as the act nowhere makes it obligatory upon the Court to grant the order of discharge, it must have been intended that the Court should have a discretion to suspend or refuse such an order. The appeal of the plaintiffs in the action was therefore dismissed. Ex 66 BANKRUPTCY; (L) Certificate and Oedek op Discharge. parte Olass and Elliot, in re BosviaU, 31 Law J. Kep. (n.s.) Bankr. 73. The words "order of discharge'' in the Bank- ruptcy Act, 1861, denote two different things : first, the order made by the Court on the applica- tion of the bankrupt, and which is made and pro- nounced by the Commissioner, subject to appeal, and is recorded in the proceedings ; and, secondly, that further document or certificate which is formally drawn up and handed over to the bankrupt after the time allowed for appealing has elapsed. The order of discharge referred to by the 1st rule of the lE9th section is the first of these, and the date from which it takes effect is the time when it is pronounced by the Court. Consequently, where, after the making of the order of discharge by the Commissioner, but before the expiration of the time required by the 170th section to elapse before the order of discharge should be drawn up, property devolved upon the bankrupt, it was held that he, and not the assignees, was entitled to it. Ex parte Bell, in re Zaforest, 32 Law J. Rep. (n.s.) Bankr. 50. The 159th section of the Bankruptcy Act, 1861, 24 & 26 Vict. c. 134, is not retrospective, and an offence created by that clause must, in order to jus^ tify the refusal or suspension of the order of discharge, have been committed subsequently to the passing of the act. Ex parte White, in re White, 33 Law J. Eep. (n.s.) Bankr. 22. It is the duty of the Commissioner when applied to by a bankrupt for his discharge under the circum* stances mentioned in the 110th section of the Bank- ruptcy Act, 1861, to be judicially satisfied, before granting it, that the bankrupt has made a full dis- covery of his estate. Ex parte Jones, in re Wilson and Slater, 33 Law J. Rep. (n.s.) Bankr. 11. The power given to the Court by the 162nd sec- tion of the Bankrupt Law Consolidation Act, 1849, to adjourn a bankrupt's last examination sine die, is not to be used for the purpose of indirectly defeat- ing the bankrupt's right to an order of discharge in cases where the order could not be directly refused under the 169th section of the act of 1861. Ex parte Grummitt, in re Grummitt, 33 Law J. Rep. (n.s.) Bankr. 43. A Registrar acting as the deputy of the Commis- sioner, under the 27th section of the Bankrupt Law Consolidation Act, 1849, has power to grant orders of discharge in unopposed cases ; and this power is not taken away by implication by the 62nd section of the Bankruptcy Act, 1861, nor by the 169th sec- tion of the same act. Ex parte Lees, in reEmberton, 83 Law J. Rep. (n.s.) Bankr. 25. The order of discharge in such a case ought to be signed by the Registrar, and not by the Commis- sioner. Ibid. P, carrying on business in Australia, was pro- ceeded against in the Insolvency Court there, and being unable to get his certificate, left the colony, and came to this country, where he was sued by an Australian creditor who had not proved his debt under the proceedings in insolvency. Judgment was recovered against him, and he was shortly afterwards adjudicated bankrupt on his own petition. The Commissioner was afterwards applied to .on behalf of the creditor to dismiss the petition, but he refused to do so, and this decision was not appealed from. Subsequently the Commissioner made an order granting the bankrupt his discharge after suspension for eight calendar months, with protection. Upon the matter coming before the Lord Chancellor, upon appeal from the order of discharge, it appearing that the bankrupt had contracted debts without reason- able ground of expectation of being able to pay, the order was suspended (with intermediate protection) for twelve months, for the purpose of gaining infor- mation as to any future property of the bankrupt, the Lord Chancellor at the same time intimating that the order of discharge would be granted ulti- mately only upon the terms of the future property being made available for the creditors. Ex parte Gibson, m re Pattrich, 34 Law J. Rep. (n.s.) Bankr. 31. Semble — If the adjudication had been appealed against in due time, it wouldhavebeen annulled. Ibid. (6) Conduct as a Trader. A trader obtained money on the discount of bills of exchange drawn by him and his firm, representing to the discounters that the bills were ordinary trade bills, and not accommodation bills, and on that foot- ing they were discounted. The trader became bank- rupt) and one of the Commissioners, for the above misconduct and other reasons, refused him any cer- tificate, and also refused him liberty to apply for his discharge, if taken in execution, until he should have been in prison six months. The bankrupt ap- pealed from this judgment ; but the Lords Justices, being of opinion that the representations amounted substantially to obtaining money by untrue pre- tences and fraudulent misrepresentations, refused to mitigate the sentence, and dismissed the appeal. Ex parte Laurence, in re Laurence, 30 Law J. Rep. (n.s.) Bankr. 33. A trader purchased goods of a manufacturer, and after the invoice had been made out, he added to the invoice an amount more than double that of the sum charged by the manufacturer as the cost price of the goods, and upon the invoice so added to, or fabricated, he procured a loan of money to two- thirds of the fabricated price. The custom of the trade was to "salt" invoices to the extent of 51. per cent, on the amount charged as cost price, to meet theincidental expenses of shipment, and the trader re- presented to the lender that this invoice had only been so "salted." The goods were shipped to Australia, and sold for an amount less than the true cost price. The trader became bankrupt, and for this and other acts of misconduct one of the Commissioners refused him his certificate ; and, on appeal, the Lords Jus- tices affirmed the decision, and dismissed the bank- rupt's petition with costs. Ex parte Johnson, in re Johnson, 30 Law J. Rep. (n.s.) Bankr. 38. A father, a solicitor in practice, took his son, aged twenty-four, into partnership. The son never inves- tigated the affairs of the firm, but though he lived with and was maintained by the father, he drew out of the concern annually 300/. for his own purposes. The father became bankrupt, and subsequently also the son. On the latter applying to one of the Com- missioners for his discharge, his Honour suspended it for twelve months, three months to be without protection. On appeal, the Lords Justices mitigated the sentence by a suspension for three months only, with protection. Ex pa/He Holden, in re Solden, 31 Law J. Eep. (n.s.) Bankr. 86. BANKRUPTCY; (L) Cbrtipioatb and Obser or DisoHAnaB. 57 Semhle — A speculation is not " rash and hazard- ous" within the meaning of the 169th section of the Bankruptcy Act, 1861, unless it is not only dan- gerous, but such as no reasonable man would enter into. Ex parte Downmcm, in re Downman, 32 Law J. Rep. (n.s.) Bankr. 49. A bankrupt accepted accommodation bills without consideration, to an amount far beyond his means or expectations, for a firm in large business, to whom he was under considerable obligations, and whom he believed to be perfectly solvent: — Held, affirming the decision of the Commissioner, that his conduct amounted to a contracting of debts without reason- able or probable ground of expectation of being able to pay the same within the 159th section of the Bankruptcy Act, 1861, and his order of discharge was absolutely refused. Ex parte Ba/rker, in re Barker, 33 Law J. Rep. (n.8.) Bankr. 13. The primary consideration of the Court of Bank- ruptcy should be for the benefit and satisfaction of the civil rights of the creditors, and not the satisfac- tion of any personal injury ; and no moral conside- ration not belonging to the jurisdiction of the Judge ought to influence the nature or amount of a sen- tence passed by him on the bankrupt. Ex pwrte Griffiths, in re Griffiths, 33 Law J. Rep. (w.s.) Bankr. 44. Though the bankrupt may have committed acts for which he is liable to imprisonment, under the 159th section of the Bankruptcy Act, 1861, yet if they are not acts for which the Court is in the habit of awarding imprisonment, no amount of moral mis- conduct not coming within that section can be called in aid to justify such a sentence. Ibid. SenMe — Where a debt originates in special circum- stances, and is contracted with a view to a special emergency, and is not attributable to the ordinary expenditure and style of living of the bankrupt (as where the bankrupt has borrowed money for his defence to a suit in the Divorce Court), it ought not to be taken into account in estimating whether he has contracted debts without reasonable ground of expectation of being able to pay the same. Nor can damages recovered against the bankrupt in the Divorce Court be considered as a debt so contracted. Ibid. (c) Fraud. A solicitor was co-trustee under a settlement of a sum of 3,000Z. charged upon certain property. He borrowed a sum of 300?., and, as security, deposited the title-deeds of the above-named property, without the knowledge of his co-trustee, and without inform- ing the lender of the fact of the 3,000i. charge. The solicitor was adjudicated bankrupt, and one of the Commissioners refused him any certificate, on the ground that the above was fraud both on the cestv/is gue trust and on the lender of the 300?. On appeal, the Lords Justices, considering that wilful fraud could not necessarily be implied from the facts of the case, mitigated the sentence by the grant of a certificate of the second class, after a suspension of two years from the date of the adjudication, and said that their invariable rule was never to alter an order of a Commissioner refusing a certificate, where fraud was established. In re Fretton, 31 Law J. Rep. (n.s.) Bankr. 1. During a period of unquestionable solvency, but DiSBST, 1860—66. shortly before bankruptcy, a trader purchased goods for, as he alleged to the seller, home trade. The goods were very soon after consigned to a relative in America, and when sold were disposed of at very great loss. After his bankruptcy he applied for his discharge, but was opposed on the ground of having made misrepresentations, and that the consignment of the goods to America was a rash and hazardous speculation within the meaning of paragraph 3. of section 159. of the statute, 24 & 25 Vict. c. 134. The Court, affirming the view of one of the Com- missioners, held that this paragraph of the 159th section was not applicable to the case, the bankrupt at the time of the venture being possessed of pro- perty beyond the amount of his liabilities, and the representations, though erroneous, not being fraudu- lent. Ex parte Evans, in re Barnard and Rosen- thal, 31 Law J. Rep. (n.s.) Bankr. 63. (d) Fravdvlent Preference. One of the Commissioners had refused the bank- rupt any certificate for, amongst other offences, a fraudulent preference; but the Lords Justices, on appeal, on hearing further evidence, were of opinion that there had nof been a fraudulent preference, and, the assignees not opposing, granted a certificate of the second class. In re Shatter, 31 Law J. Rep. (n.s.) Bankr. 5. A trader, when involved in difficulties and hope- lessly insolvent, deposited the title-deeds of property, of which he was surviving trustee, with his brother, who was entitled to the same property for life, under the will of which the bankrupt was trustee as a security for a debt owing to the brother. The certifi- cate was refused on the ground that this was a fraudulent preference, but protection was granted valeat qtumtum. In re Barton, 31 Law J. Rep. (n.s.) Bankr. 7. (e) MisdenKunor. [See ante, (H)-(J).] A bankrupt had been guilty of acts which amounted to a misdemeanor within the 221st section of the statute, 24 & 25 Vict. c. 134 ; and one of the Com- missioners, under section 169. of the same act, granted him an order of discharge with a suspension of twelve months. On appeal, the Lords Justices considered that the Commissioner had jurisdiction to direct a prosecution before a Court of Criminal Justice, and that it was not incumbent on him, with or without a jury, to try the case himself; and they discharged the order, and directed a prosecution by the assignees at the next assizes. Ex parte Dobson, m re Wilson, 32 Law J. Rep. (n.s.) Bankr. 1. Subsequently friends of tlie bankrupt subscribed money in order to provide a dividend, if the order made by the Court should be discharged. Their Lordships discharged their order, and permitted the money to be accepted by the assignees. Ibid. Reasonable evidence of the guilt of parties is necessary before a prosecution by indictment, under the 221st section of the act, 24 & 25 Vict. c. 134, can be directed. It cannot be so on a case of mere suspicion. Ex parte William and George Strick- land, in re Still, 32 Law J. Rep. (n.s.) Chanc. 12. An order for the prosecution of a bankrupt may be made before the appointment of a creditors' assignee, and notwithstanding the bankrupt has not I 58 BANKRUPTCY; (M) Pbactice. been examined or had any opportunity of explana- tion afforded bim ; and it is a matter for the discre- tion of the Commissioner whether a previous inquiry or an examination of the bankrupt shall be directed. Ex parte Levi, in re Levi, 34 Law J. Rep. (n.s.) Bankr. 23. An order for prosecution, reciting that there is reason for supposing that the bankrupt has been guilty of some one or more of the offences set forth in the 221st section of the Bankruptcy Act, 1861, is properly framed without specifying the particular offences with which the bankrupt is charged. Ibid. (/) AUowanee to. The 109th section of the Bankruptcy Act, 1861, giving power to the creditors to determine whether any, or what, allowance shall be made to the bank- rupt up to the time of passing his last examination, does not repeal the 194th section of the Bankrupt Law Consolidation Act, 1849, by which that power is given to the Court; but the power still remains in the Court, subject to the control of the creditors under the later act. JEx parte EUerton, in re Leech, 33 Law J. Rep. (n.s.) Bankr. 32. The time of " passing the last examination,'' up to which a bankrupt's allowance is to be paid under the 109th section of the Bankruptcy Act, 1861, is the time appointed under the 140th section for passing the last examination, and not the time when the last examination is actually passed. Ex pajrte Oshom, in re Jowett, 34 Law J. Rep. (n.s.) Bankr. 16. (g) Effect of. The 154th section of the Bankruptcy Act, 1861, discharges the bankrupt from liability to a surety in respect of payments of premiums on a policy of in- surance becoming due subsequently to the date of the adjudication. Sav/nders v. Best, 17 Com. B. Rep. N.S. 731. (M) Practice. One of the Commissioners pronounced an order, and one of the parties affected by it appealed within twenty-one days. Another party affected also ap- pealed after the twenty-one days had expired, but before the first petition of appeal was heard : — Held, that the order of the Commissioner in these circum- stances was not " final," and that the second petition of appeal was presented in time. Ex parte M'Eenna, in re Streatfeild, Lawrence tfc Co.; Ex parte the Batik of England, in re Same, 30 Law J. Rep. (n.s.) Bankr. 24. A prisoner who had been adjudicated bankrupt by a registrar was allowed, on appeal, to examine witnesses to prove that his arrest was illegal by reason that the debt was not of sufficient amount to justify arrest ; but the Court being of opinion that he was legally in custody on an execution issued by a Court of competent jurisdiction, and which execu- tion that Court had refused to set aside, — Held, that the appeal must be dismissed. In re Haywa/rd, 31 Law J. Rep. (n.s.) Bankr. 33. The date of an order is the day when it was made, and the time for appealing under the 12 & 13 Vict. c. 106. ts. 12. runs from that day, and not from the day when the order was drawn up. Ex parte the Dudley and Weat Bromwich BanJdng Co., in re Hopkins, 32 Law J. Rep. (n.s.) Bankr. 68. Ex parte Heslop (1 De Gex, M. & G. 477) not followed. Ibid. The effect of the Bankruptcy Act, 1861, transfer- ring the jurisdiction of the Insolvent Debtors' Court to the Court of Bankruptcy, is to give the same right of appeal in insolvency cases as is given by the 12th section of the Bankrupt Law Consolidation Act, 1849, in bankruptcy cases. Ex parte Perhini, in re Perkins, 34 Law J. Rep. (n.s.) Bankr. 37. Motions by way of appeal under No. 32. of the General Orders pursuant to the act 24 & 25 Vict, c. 134, are to be placed in the paper in the same way as appeal petitions were formerly. Ex parte Lewis, in re Hollier, 31 Law J. Rep. (n.s.) Bankr. 11. The 32nd General Order of 1861 having directed that all appeals to the Court of Appeal shall be brought on by motion, the 12th section of the Bankrupt Law Consolidation Act, 1849, requiring all appeals to be entered within twenty-one days from the date of the decision or order of the Court, is no longer applicable, and it is sufficient if the notice of motion is given within the twenty-one days. Ex parte Bromley, in re Redfeam, 34 Law J. Rep. (n.s.) Bankr. 33. Notwithstanding the repeal of the 18th section of the Bankrupt Law Consolidation Act, 1849, by the 24 & 25 Vict. u. 134, the discretionary power of the Lords Justices as to appeals to the House of Lords remains. There is no right of appeal by com- mon law to the House of Lords. In re Newton, 31 Law J. Rep. (n.s.) Bankr. 81, 82. An order having been made in July, 1861, grant- ing a bankrupt his discharge, with a condition as to his after-acquired property, the Lords Justices refused an application by the bankrupt for leave to appeal to the House of Lords, and detennind to re- hear the case themselves, directing that a new deposit of 20t should be made. Ex parte Drinkwater, in re Drinkwater, 32 Law J. Rep. (n.s.) Bankr. 20. After the case had been so re-heard, an order was made, varying the former order by suspending it for a certain time, giving the bankrupt protection in the mean time, and an unconditional discharge at its termination. Ibid. Application to receive fresh evidence on appeal refused. In re Potts, 31 Law J. Rep. (n.s.) Bankr. 34. The 32nd Order in Bankruptcy must be construed with reference to evidence on the matters in issue, and does not preclude the introduction of fresh evidence for the purpose of informing the Court of Appeal of what has taken place in the Court below. Ex parte Page, in re Neal, 32 Law J. Rep. (n.s.) Bankr. 14 ; 1 De Gex, J. & S. 283. In the former case some ground must be shewn for the admission of the new evidence. Ibid. It is not necessary that the notice of motion by way of appeal, upon the ground, among others, of rejection of evidence, should state that ground. Ibid. The Court of Appeal has jurisdiction to allow fresh evidence in addition to that adduced before the Commissioner ; and, when produced, will entertain the question, and not send it back to the Commis- sioner. Ex parte Miller, in re Miller, 32 Law J. Rep. (n.s.) Bankr. 45. The time for appeal against an adjudication does not expire until two calendar months after the BANKRUPTCY— BARON AND FEME. 59 advertisement of the bankruptcy, under the 233rd section of the Bankrupt Law Consolidation Act, 1849, varied by the 24th section of the 17 & 18 Vict. c. 119, notwithstanding that the former section uses the word " commenced " proceedings. Ibid. A creditor who intended to oppose the discharge of a bankrupt was misinformed as to the case being not to come on before a particular Commissioner, and did not therefore attend. The bankrupt was discharged by another Commissioner, and on appeal the case was remitted back as being a surprise on the creditors and a proper subject for appeal under the 171 St section of the Bankruptcy Act, 1861 (24 & 25 Vict, c 134). Ex parte Johnstone, in re Newton, 31 Law .1. Rep. (n.s.) Bankr. 63. A creditor who has not opposed a bankrupt's order of discharge before the Commissioner is not thereby precluded from appealing against it. jEb parte Burgess, in re Monk and Brooks, 33 Law J. JJep. (n.s.) Bankr. 61. A creditor who has not proved his debt when an order of discharge Is granted cannot appeal against the order. Ex parte Oreenwood, im, re Monk and Brooks, 33 Law J. Rep. (h.s.) Bankr. 60. An order made by a Registrar sitting for the Com- missioner under the 27th section of the Bankrupt Law Consolidation Act, 1849, must shew, on the face of it, the nature of the circumstances under which the Registrar was authorized so to sit. Ex parte Morgan, in re PenneU, 32 Law J. Rep. (n.s.) Bankr. 61. One trader had been solely, and afterwards he and his partner had been jointly, adjudicated bank- rupt: the Lord Chancellor, discharging an order made by the Registrar, gave leave to apply to the senior Commissioner as to the consolidation of the proceedings. Ex parte Chwchill, m re Griffiths, and in re Thomeycroft and Griffiths, 32 Law J. Rep. (n.s.) Bankr. 48. An official assignee who has no other duty than to assent will not be allowed his costs out of the estate. Ibid. It is not necessary to the validity of a resolution to suspend proceedings in a bankruptcy passed by a meeting of creditors, under the 110th section of the Bankruptcy Act, 1861, that previous notice of the meeting should be advertised in the Gazette. Ex parte Boldero, in re Bodenhurst, 34 Law J. Rep. (n.s.) Bankr. 34. Where by a resolution of the creditors the pro- ceedings in bankruptcy have been suspended under the 110th section of the Bankruptcy Act, 1861, the bankrupt is not, on making a full discovery of his estate, entitled as of course to his order of discharge, but in granting such order the rules laid down by the 159th section must be observed. Ex parte M'Kerrow, in re M'Kerrow, 34 Law J. Rep. (n.s.) Bankr. 37. By a Bankruptcy Act (1849) notice of disputing the requisites on bankruptcy must be given " within ten days after rejoinder." Rejoinders having been abolished in equity, the Court, eight weeks after replication, allowed ten days to the defendants to give the notice which they had previously neglected to do. Lee v. Sonnistoun, 29 Beav. 465. Trustees of a deed of assignment for benefit of creditors were allowed out of the estate the costs they had bona fide incurred, although the debtor was afterwards adjudicated bankrupt. Ex parte Tomlinson, in re Boyce, 30 Law J. Rep. (n.s.) Bankr. 41. An action, by direction of a Commissioner, was brought with the assent of the creditors, to try a disputed point. The action failed, and some creditors objected to the allowance of the assignees' costs on the ground that the Commissioner had no jurisdic- tion to order the action to be brought, as not being an action within the meaning of the 163rd section of the Bankrupt Law Consolidation Act, 1849, but the Lords Justices ordered the costs to be paid out of the bankrupt's estate, on the ground that the objec- tion ought to have been made earlier, that is, before the result of the action was known. Ex parte Edmondson, in re Thomson, 31 Law J. Rep. (n.s.) Bankr. 32. BARON AND FEME. [See DiTORCE — Dower — Executor and Ad- ministrator — Fine and Reootert — Free Bench — Marriage — Settlement — Slander.] (A) Joint Estate of and Contracts between. (B) Husband. (a) Bights and lAdbilities in, respect of Wife's Property. (6) lAahUity for Necessaries supplied to Wife. (c) Rights and LiaMlities in respect of Wife's Acts, {d) Liability for Wife's Costs in Divorce Court. ( c ) Liaiility for Wife's Funeral. If) Gift to Wife. (C) Wife. (a) Rights in respect of Husband's Property. lb) Property of. (c) Egvit/y to a Settlement. (D) Separate Estate of Wipe, (os) How acquired. (b) Power over and Disposition of. (c) Liability in respect of. (E) Separation Deeds. (F) Wipe's protected Property. (G) Actions and Sdits : Pleading and Evi- dence IN. - (H) Offence op Desertion of Wife. (A) Joint Estate op and Contracts between. A testator, by his will, made before the act (20 & 21 Vict. c. 85.) establishing the Divorce Court, vested property in trustees, upon trust, out of the rents and profits, to pay an annuity to his son G and E, his (the son'.s) wife, jointly, and further, out of the rents and profits of "the property so left in trust for his son G," to pay to the wife, if she survived, 501. annually, so long as she continued unmarried ; but if G survived, to pay him 100?. annually. G was divorced from E on account of her adultery : — Held, that G was^entitled to the whole annuity. Knox v. Wells, 34 Law J. Rep. (n.s.) Chanc. 160 ; 2 Hem. & M. 674. Stock invested in joint names of husband and wife held to belong to the wife as survivor. In re Gadbwry, 32 Law J. Rep. (n.s.) Chane. 780. 60 BARON AND FEME; (B) Husbawd. It is against public policy to compromise a suit for a divorce ; and the Court will not entertain a bill for specific performance of a contract founded on such compromise. Gippa v. Hume, 31 Law J. Kep. (K.S.) Chanc. 37; 2 Jo. & H. 517. (B) Husband. (a) Rights and LiahUities in reaped of Wifit Priyperty. A testator having bequeathed the dividends of a fund to his niece for life, remainder to her children, by a codicil reciting that her husband was dead, declared that in case she married again without the consent of the trustees, she should forfeit the legacy and take only 501. a year. The niece, without the consent or knowledge of the trustees, married, re- ceived the dividends for some time, and died. On a bill by the trustees against the husband (who denied knowledge of the clause of forfeiture), the Court declared the husband subject to the liabilities that affected the wife. Charlton v. Coomies, i Giff. 382. A lady, three months before her marriage, but after she was engaged to be married to her future husband, executed a voluntary settlement of a fund upon herself for life, and after her death upon such trusts as she should by deed or will appoint, and in default of appointment upon trust for such persons as under the Statutes of Distribution would be entitled thereto at her death, as if she had died possessed thereof intestate and without having been married. The settlement also empowered the trus- tees, notwithstanding the trusts aforesaid, to transfer the trust fund as the lady should, whether covert or sole, by request in writing, direct. The husband, prior to the marriage, was told by the lady that she had executed a document affecting the above fund, but he did not then make any inquiries as to the nature of such document. The lady died about two years and a half after the marriage, without having made any appointment or disposition of the fund ; and the husband, shortly after her death, for the first time ascertained that the settlement was to the effect above stated. The husband thereupon filed a bill to have the fund transferred to him. It appeared that his wife, during her lifetime, had stated to him that she had been informed by her solicitor that he would be entitled to the fund if he survived her : — Held, that, as the information which the husband received as to the nature and effect of the settlement was incorrect, he was entitled to have it declared that it was invalid, and ought to be set aside. Pri- deaux v. Lonsdale, 32 Law J. Rep. (n.s.) Chanc. 317; 1 De Gex, J. & S. 433. A law-stationer, who was an executor of the per- son who had bequeathed the above fund to the lady, advised and framed the settlement, and although he was not a party thereto, he was made a defendant to the suit : — Held, that, as his conduct had been mainly the occasion of the litigation, the husband was entitled to a decree against him, together with the other defendants, with costs. Ibid. (J) lAability for Necessaries mpplied to Wife. In an action against a husband for necessaries supplied to a wife while living apart, the plaintiff's case being, that the wife had originally left the de- fendant with his consent, had been since, by his instrumentality, wrongfully temporarily confined in a lunatic asylum, and after her discharge, had for a time received from him a weekly allowance wholly inadequate for her support, and had been compelled to accept this inadequate allowance in preference to returning to live with him, in consequence of his threat that if she did return, he would send her to a lunatic asylum, — Held, that the form of question to be left to the jury was — "Was the wife justified in leaving her husband, without his consent, by his conduct? If not so justified — Did he agree she might pledge his credit ? " Biffin v. Bignell, 31 Law J. Rep. (N.S.) Exch. 189; 7 Hurls. & N. 877. Held also, that the nature of the threat which would justify her in refusing to return to her hus- band, ought to have been explained to the jury. Johnston V. Sumner discussed. Ibid. A husband and wife were living together; she had a separate income of her o^vn, over which the hus- band exercised no control ; the husband also agreed to make her a certain allowance for her expenditure on herself and their children, with an express stipu- lation that she should contract no debts whatever. The husband did not pay the stipulated allowance in full, and what he did pay was not sufficient to supply to his wife and children such articles as the jury thought were suitable to their estate and degree: — Held (per Brie, C.J., Williams, J. and Willes, J.), that the husband was not liable for goods supplied to the wife on credit, although such goods were suitable to the estate and degree of her- self and the children, for that having power to draw inferences of fact, they did not infer that the hus- band had held out that the wife had authority to bind him to that extent. Held (per Byles, J.), that the husband was liable ; for that the wife had an apparent authority to pledge her husband's credit, and the plaintiff had no notice, under the circum- stances, that such authority was revoked. Jolly v. Bees, 33 Law J. Rep. (if.s.) C.P. 177 ; 15 Com. B. Rep. N.S. 628. Where a husband by his cruelty compels his wife to live apart from him, he is liable upon contracts made by her for necessaries, notwithstanding she in fact receives from him an allowance, if the jury find the allowance insufficient, regard being had to his means and position in life. Baker v. Sam/pson, 14 Com. B. Rep. N.S. 383. Where a debtor has advanced moneys for neces- saries supplied to the deserted wife of the creditor, he is entitled in equity to set off such moneys against the creditor's legal demand. Jenner v. Morris, 30 Law J. Rep. (h.s.) Chanc. 361 ; 3 De Gex, F. & J. 45. A wife, after divorce, is entitled for her sole bene- fit to such of her property and effects as were not reduced into possession by her husband during cover- ture. WeUs V. Malbon, 31 Law J. Rep. (n.s.) Chanc. 344; 31 Beav. 48. T W having become lunatic, was taken to an asylum in London. His wife, who at the time of her marriage was entitled to separate property, removed to London in order to be near her husband, and borrowed money on his credit to meet the expense of such removal of herself and husband, and to pro- vide herself with necessaries. T W died, and a bill was filed for the administration of his estate. The persons who had made the advances to the wife car- ried in their claim for the amount against T W'b BARON AND FEME; (C) Wifh. fll estate : — Held, by one of the Vice Chancellors and affirmed on appeal, that the claim must be allowed. Davidson v. Wood, 32 Law J. Rep. (n.s.) Chanc. 400; 1 De Gex, J. & S. 465. Senible — That a woman possessed of separate estate is entitled to maintenance by her husband, although he be lunatic, and is not bound to pledge her sepa- rate estate in order to provide herself with necessaries. Ibid. The costs of a solicitor employed by a married woman to institute proceedings on her behalf against her husband to obtain a decree of judicial separa- tion, are not necessaries for which the husband is liable, unless there was at least great probability of ultimate success; and to entitle a solicitor so em- ployed to recover the costs from the husband, or to prove for them against the husband's estate, he must, in the absence of actual success, be at least able to shew that he made proper investigation and inquiry into all the circumstances of the case before he commenced the proceedings. In re Hooper^ BayUs V. WatUm, 33 Law J. Rep. (n.s.) Chanc. 300 ; 2 De Gex, J. & S. 91. Whether previous inquiry and the existence of reasonable grounds for instituting such a suit would entitle the solicitor to recover from the husband if, in the result, the wife failed — qaasre. Ibid. (c) Sights and LiaMUties in respect of Wife's Acts. A contract entered into and paid for by a wife, without the knowledge, but for the benefit of the husband, is valid and binding when ratified by the husband. Millard v. Harvey, 34 Beav. 237. A wife, unknown to her husband, requested her father to sell her husband a field to be paid for out of her savings. The father at firstrefused,but hereceived the money, and shortly afterwards put the husband into possession. For ten years the money was retained by the father without payment of interest, and the field by the husband without payment of rent. The fether then attempted to eject the husband, who being made acquainted with the circumstances, in- sisted on retaining the field :— 'Held, that the father was bound to convey it to the husband. Ibid. During coverture probate was granted to a feme executrix. The husband died insolvent, leaving the wife surviving, who died leaving assets : — Held, that the wife's assets were not liable to make good the joint receipts of herself and her husband during the coverture. Soady v. TitrnbuU, 34 Law J. Rep. (n.s.) Chanc. 539. Semble — Where probate is granted to a feme covert during marriage the husband and his estate are alone liable in equity for devastamts committed by him, or by him and his wife, during the cover- ture. Ibid. (d) Liability for Wif^s Costs in Divorce Court. The husband is liable to an action, at the suit of his wife's solicitor, for costs necessarily incurred by her in filing a petition in the Divorce Court for a judicial separation on the ground of cruelty and adultery, although the petition is not proceeded with, and the course prescribed by the practice of the Divorce Court for obtaining the wife's costs has not been pursued. Bice v. Shepherd, 12 Com. B. Rep. N.S. 332. (e) LidbiKiyfor WifSs Pimeral. Where the wife dies when living apart from her husband, and is buried by the person in whose house she dies in a manner suitable only to her rank, the husband is liable to repay the funeral expenses, although he has never been asked to bury his wife; if he has not been prevented from discharging that duty by any fraud or misconduct of the person who is at the expense of such funeral. Bradsham v. Beard, 31 Law J. Rep. (n.s.) C.P. 273; 12 Com. B. Rep. N.S. 344. if) Gift to Wife. A wife with the knowledge and approval of her husband, invested money belonging to the latter in the purchase of Government stock in their joint names. Subsequently, under the authority of a power of attorney given to her by the husband, she sold a portion of the stock and kept the money in her custody, and it so remained at the husband's death: — Held, that the stock remaining in the joint names of the husband and wife survived to her, but there being no evidence of an intention on the part of the husband to make an absolute gift to the wife, that the proceeds of sale of the stock formed part of the husband's general assets. In re Oadbury, 32 Law J. Rep. (n.s.) Chanc. 780. In order to constitute a gift by a husband to his wife, the husband must use words which clearly indicate that he has divested himself of all beneficial interest in the subject-matter of the gift. Such words need not be technical, and may be spoken either at the time of the gift or afterwards. Grant v. Gi'ant, 34 Law J. Rep. (n.s.) Chanc. 641; 34 Beav. 623. A husband may constitute himself a trustee for his wife; the declaration need not be in writing, but the words must be clear, unequivocal and irrevocable. Ibid. The Court will not act upon the unsupported testimony of a claimant upon the estate of a de- ceased person. Ibid. (C) Wife. (a) Eights in reject of Husband's Property. A woman who under the old practice had been divorced a mensa et thoro on the ground of adultery, and had not since been reconciled to her husband, — Held, upon his dying intestate, to be entitled, as his widow, to a share of his personal estate, under the Statutes of Distribution. Molfe v. Perry, .32 Law J. Rep. (n.s.) Chanc. 149. (6) Property of. Where a marriage settlement was valid when executed the wife does not, by adultery, lose any benefit which it conferred upon her; and the Court of Chancery has no power to set aside the settle- ment, although the marriage has been dissolved by the Divorce Court. Evans v. Carrington, 30 Law J. Rep. (n.s.) Chanc. 364; 2 De Gex, F. & J. 489; 1 Jo. & H. 698. Where there was a fund in court, to which a married woman was entitled absolutely under a will, the Court directed that she should attend and give her consent, and sign a separate receipt for the money; her husband appearing by counsel and con- 63 BARON AND FEME; (C) WifE. senting to the payment. Maine v. ffeamside, 80 Law J. Rep. (n.3.) Chanc. 937. A husband and wife having a joint power of ap- pointment over an estate the ultimate limitations of which in default of appointment were to the use of the husband and wife in moieties in fee, executed the power by way of mortgage to secure the husband's debt: — Held, that this was no mortgage of the wife's estate, and, consequently, that she was not entitled to have her moiety exonerated out of the estate of the husband. Scholefield v. Zochwood, 33 Law J. Rep. (n.s.) Chanc. 106; 32 Beav. 434. T D, being entitled to three estates, the first un- incumbered, the second mortgaged for 1,400Z., and the third for 3,000/., settled them to the use of him- self for life, remainder to such uses as he and his wife should jointly appoint, with an ulterior limitation as to one moiety to himself in fee, and as to the other moiety as his wife should appoint. Subsequently, T D and his wife appointed the first and second estates to A B, by way of mortgage to secure 1,000?. borrowed by T D. Subsequently A B entered into possession of the first and second estates, kept down the interest, and paid off part of the principal moneys out of the rents. T D and his wife died, and upon A B selling under a power of sale contained in his mortgage deed, there remained a net surplus in his hands after satisfying the 1,400Z. and his own debt: — Held, first, that as between a judgment cre- ditor of T D and the appointees of T D's wife, the principal debt of 1,4002. must be borne equally by the respective moieties of the husband and wife of the proceeds of sale, so as to restore to the husband's estate the rents and profits applied by A B in satis- faction of principal moneys; and, secondly, that a counter equity existed on the part of the appointees of the wife to have the surplus rents and profits applied in discharging the interest upon the 3,000/. ; and in case of loss to the appointees of the wife through the neglect of the tenant for life to keep down the interest, they would have a right of set-off to the extent of this loss against the judgment cre- ditor, and an inquiry was directed to ascertain the value at the death of the tenant for life of the estate comprised in the 3,000/. mortgage. Ibid. A, with the concurrence of B, his wife, who was entitled to certain stock for her separate use during the joint lives of herself and A, applied to an insur- ance office for a loan of 700Z., of which 302/. was needed to pay off a previous mortgage on the wife's separate interest, and the residue for the husband's necessities. A policy was thereupon, with a view to the loan, effected in the same office, insuring the payment of 800/., on the death either of A or of B, to the survivor; and, by an indenture of the same date, the policy was assigned by A, and the dividends of B's separate estate both by A and B, to trustees for the office, to secure the loan. B also joined A, "so far as she could bind her separate estate," in covenanting, with the trustees, for title, and for pay- ment of premiums. A having died, B as survivor, claimed the policy moneys as a reversionary interest to which she was entitled at the date of the mortgage, and neither assignable nor assigned thereby; and the Master of the Rolls decided in favour of her claim : but, on appeal, — Held, by the Lords Justices, re- versing the decision of the Master of the Rolls, that the loan, policy, and indenture of mortgage together constituted one transaction j that B's interest under the policy was, from the first, subject to a paramount charge in favour of the lenders, and that, conse- quently, it was unnecessary to decide whether B could have assigned, or had in fact assigned, her interest in the policv. Winter v. Easum, 33 Law J. Rep. (n.s.) Chanc. 665; 2 De Gex, J. & S. 272. . Whether B's interest in the policy was assignable as being in the nature of an accretion to her separate estate — qucere. Ibid. Agreement, in contemplation of marriage, to settle a money fund of the wife's for her separate use, to revert to the husband if he should survive: — Held, that the wife's reversionary interest in the fund was taken under the agreement and not as a resulting use, and that she could not dispose of the fund under the powers of the statute. Clarice v. Green, 2 Hem. & M. 474. Where an estate L had been contracted to be purchased by a woman who married leaving part of the purchase-money unsatisfied, which was paid by her husband who took the conveyance to himself and devised the estate, — Held, that the estate was the property of the wife subject to a charge in favour of her husband for the amount of purchase-money con- tributed by him. Maddisony. Chapman, 1 Jo. & H. 470. The husband having devised all his lands, houses, tenements, real and personal property at L and else- where, and died, leaving no real property to L other than the charge aforesaid and having given benefits by his will to his widow, — Held, that he had a suffi- cient interest to satisfy the words of the will without attributing an intention to devise his wife's property, and that the widow was not put to her election. Ibid. A deed relating to a reversionary interest in a fund was executed by some married women and their husbands. One having survived her husband, who died before the fund fell into possession, — Held, that the deed was not binding on her, and that therefore it was not binding on any of the other parties to it. Bolitho V. Hillyar, 34 Beav. 180. A married woman under a general power of appointment exercisable during coverture, by deed of appointment executed after marriage, appointed the property to trustees in trust during the joint lives of herself and her husband for her sole and separate use, and, if she should survive her husband, on trust for herself absolutely, but in case she pre- deceased him, as she should appoint, and, in default of her appointment, to her next-of-kin. 'There were no children, and the marriage having been dissolved by a final decree of dissolution on account of the husband's misconduct, — Held, that the wife was absolutely entitled. Jessop v. Blake, 3 Giff. 639. Money of a wife was, by the direction of her husband, paid to the trustees of a post-nuptial settlement, which was not binding on the wife: — Held, that her right by survivorship was destroyed, the property having by these means been reduced into possession. Hamilton v. MilU, 29 Beav. 193. A husband deserted his wife two days after their marriage. She became entitled to an annuity of 100/. a year; but as the trustee refused to pay it without the receipt of her husband, she was left without means of support, and was wholly maintained by her sister. After a decree for judicial separation, BARON AND FEME; (C) Wife. 63 upon the petition of the wife and sister, — Held, upon the request of the wife, that the accumulations of the annuity must be paid to the sister, and that nothing should be paid to the husband. In re Ford, 33 Law J. Rep. (n.s.) Chanc. 180; 32 Beav. 621. In a foreclosure suit against a husband and wife, the agreement for the mortgage having been entered into by the wife when a feme sole, and part of the moneys paid to her, but the mortgage executed by both husband and wife, the Court made a decree against both. Lewis v. Poole, 3 Giff. 636. On a Tuesday, an intended husband, who was an infant, wrote to the trustee of the intended wife, " that he especially wished his wife's property entirely settled on herself," and that the wedding was to take place on the Saturday. They married, unknown to the trustee, on the Wednesday, without any settlement : — Held, that this letter contained no settlement or agreement for a settlement binding on the husband or wife. Beaumont v. Carter; Carter v, Beawmont, 32 Beav. 586. (c) Equity to a Settlement. A testator devised his real estate to hia son, sub- ject to an annuity of 50Z. to his wife for life, and to the payment of a sum of 1,0002. to his daughter A E at the end of six months after his wife's death ; and the testator declared that if default should be made in payment of the said sum of 1,0002., it should be lawful for A E to enter upon the lands, and by receipt of the rents, or by demise, sale or mortgage of the same, or any part thereof, or by any other ways and means to raise the said sum of 1,0002., &c. The wife died in 1853. The husband of A E assigned to the F society the 1,0002., and afterwards took the benefit of the Insolvent Act. A E filed a bill against the owner of the lands and the F society to have the legacy raised by sale or mortgage, and her right to a settlement thereout declared, and to restrain the F society from proceed- ing against the owner of the land upon his paying the 1,0002. into court, &c. The F society demurred to the bill, on the ground of the right to the 1,0002. being a legal chattel interest in the husband in right of his wife, and assignable by him, and therefore not the subject of equitable jurisdiction, or one upon which the wife's right to a settlement could attach ; but the demurrer was overruled by the Master of the KoUs, and afterwards upon appeal. Dunconibe v. Cfreenacre, 30 Law J. Rep. (if.s.) Chanc. 413. Where a husband was an uncertificated bankrupt, and had become entitled in right of his wife to a sum of about' 13,0002., the Court, having regard to the circumstances of the ease, directed the whole amount to be settled, as against the assignees in bankruptcy, on the wife and children, there being no other provision for them except a sum of 1502., to which the wife was entitled under her father's and mother's marriage settlement. Smith v. Smith, 30 Law J. Rep. (is.a.) Chanc. 637 ; 3 Giff. 121. A reversionary interest of a wife in a legacy of 1,0002. was, upon becoming payable, settled upon herself and children, though it had been mortgaged by her husband for value. Duncomhe v. Greenacre, 30 Law J. Rep. (n.s.) Chanc. 882 ; 29 Beav. 578. A married woman became entitled to a legacy of 2002. and applied for a settlement. The Coui^ in consideration of the husband having already spent some portion of the wife's property, and now living apart from her, and being unable to support her and her children, directed that the whole amount should be settled on the wife and her children. In re Mer- rimam's IVvst, 31 Law J. Rep. (if.s.) Chanc. 367. A husband assigned his interest in his wife's pro- perty for value, and afterwards took the benefit of the Insolvent Act : — Held, that the wife was entitled to a settlement of the whole corpus, but not to the arrears of income. Newman v. Wilson, 31 Beav. 34. A married woman, being equitable tenant in tail in remainder of an undivided share in lands to be purchased with a sum of trust money, she and her husband joined in mortgaging herinterest. The fund was misappropriated. Proceedings having been taken for its recovery, the husband and wife succeeded in obtaining the restoration of her share of the fund which was brought into court, with arrears of interest since the time when her estate came into possession. The mortgagee did not concur in any steps to recover this share. The husband, when the mortgage was made, was maintaining his wife, but had become a bankrupt before her interest came into possession, and was uncertificated : — Held, that the wife had no equity to a settlement out of the capital, nor, as against the mortgagee, out of the future income of the fund . But held that the mortgagee had no claim to the arrears of income of t;he mortgaged property, which he had taken no steps to recover ; and that the assignees of the husband could only take, subject to the wife's equity to a settlement, and that the whole arrears ought to be settled. The Life Association of Scotland v. Siddal, 3 De Gex, F. & J. 271. The mere filing of a bill by a married woman to enforce her equity to a settlement is not sufficient to confer upon her children a right to a settlement in the event of her death. Wallace v. Auldjo, 32 Law J. Rep. (h.s.) Chanc. 748 ; 1 De Gex, J. & S. 643; 2 Dr. & S. 216. A married woman filed a bill to enforce, for the benefit of herself and children, her equity to a settle- ment out of property to which she was equitably entitled ; but she died before decree. The children filed a bill after her decease claiming a settlement : — Held, by the Lords Justices, aflirming a decree of one of the Vice Chancellors, that all benefit of the wife's suit was lost by her death j that the rights of the husband were the same as if she had never insti- tuted it ; and that the bill in the suit of the children must be dismissed with costs (overruling Steinmeti v. Halthin, 1 Gl. & J. 64). Ibid. Where a husband is unable to maintain his wife, and the fund is small, the Court will order the whole to be settled ; but in a case where the husband was in good circumstances, the Court directed one-half the fund to be settled on the wife. In re Grorve's Trusts, 3 Giff. 675. Where a married woman, who, prior to her mar- riage, was entitled under a will to a debt payable after the death of her sister, secured on land by the deposit of title-deeds, by deed acknowledged, joined her husband in assigning her share and interest in the said debt and the said real security, in order to secure moneys due by her husband, — Held, in a suit to administer the testator's estate, that she was not entitled to a settlement out of the proceeds of the real estate. Williams v. Cooke, 4 Giff. 343. A married woman has no equity to a settlement 64 BARON AND FEME; (D) Separate Estate of Wipe. out of her fee-simple estates, as against the mort- gagee of her husband's life interest therein. Durham V. Crackles, 32 Law J. Rep. (u.s.) Chanc. 111. Distinction between property of the wife which the husband takes absolutely and that in which he only takes a life interest. Ibid. Semble — A married woman is not entitled to a settlement out of her fee-simple estates — Sturgis v. Champneys (a Myl. & Cr. 97 ; 9 Law J. Rep. (n.s.) Chanc. 10) disapproved of. Gleaves v. Paine, 32 Law J. Rep. (n.s.) Chanc. 182 ; 1 De Gex, J. & S. 87. A wife, suing in forma pauperis, without a next friend, held to be entitled as against the assignees in insolvency of her husband to a settlement for her separate use for life of the rents of real property, the legal estate in which was vested in trustees for her benefit for hfe. Barnes v. Robinson, 32 Law J. Rep. (n.s.) Chanc. 143. A trustee is always justified in refusing to pay over the wife's fund to the husband, even at her request, and insisting on affording her an opportunity of asserting her equity to a settlement. And where a trustee has paid into court a fund to which a mar- ried woman is absolutely entitled, he is entitled as of course to his costs as between solicitor and client, unless his conduct has been simply capricious or vexatious. In re Swan, 2 Hem. & M. 34. (D) Separate Estate of Wife. (a) How acquired. A gift to the testator's widow " for her sole use and beneBt " does not give her a separate estate, so as to entitle her on marrying again to sue by her next friend. Gilbert v. Lewis, 32 Law J. Rep. (n.s.) Chanc. 347 ; 1 De Gex, J. & S. 38. A trust only for a married woman, her executors, administrators and assigns, is not a trust for her separate use. Spirett v. WHlows, 34 Law J. Rep. (n.s.) Chanc. 365. By a marriage settlement, 2,000?., part of a mort- gage debt of 4,000/. due to the wife, was settled upon trust for her for her separate use, and the residue was left unsettled. The husband having become bankrupt, an inquiry was directed whether, having regard to the marriage settlement and to the present circumstances of the husband, any and what addi- tional settlement .ought to be made out of the un- settled portion of the property on the "wife and chil- dren of the marriage. Ibid. (6) Power over and Disposition of. A married woman is entitled to dispose of her separate property when living apart from her hus- band by sentence of judicial separation without alimony. In re Andrews, 19 Com. B. Rep. N.S, 371. Stock was settled to the separate use of a married woman for life and after her decease as she should appoint by will, and in default of appointment for her next-of-kin. The married woman died in her husband's lifetime, having exercised her power, and a suit being instituted in chambers to administer her estate, her separate creditors took out a summons, and sought to prove under the decree : — Held, that the married woman did not by exercising her power of appointment constitute the property appointed separate estate. Blachford v. WoMey, 32 liaw J. Rep, (11.8,) Chanc. 634; 2 Dr. & S. 204. If freeholds of inheritance be vested m trustees upon trust for a married woman for her separate use, she does not thereby acquire any additional ponfer of disposing of the equitable fee, and cannot do so otherwise than by a deed duly acknowledged under the 3 & 4 Will. 4. c. 74. Lechmere v. Brotheridge, 32 Law J. Rep. (n.s.) Chanc. 677 ; 32 Beav. 353. iSecM! — as respects an estate in lands limited for the separate use of a married woman during her life : this she may alienate, in equity, by deed unacknow- ledged. Ibid. Adams v. Gambh (12 Irish Chanc. Rep. 102) dissented from. Ibid. A married woman having property settled to her separate use, and not restrained from alienation, has, as incident to her separate estate, and without any express power, a complete right of alienation by instrument i/nter vivos (not acknowledged under the Fines and Recoveries Act), or by will. And there is no distinction in this respect between an equitable fee and other property. Taylor v. Meads, 34 Law J. Rep. (n.s.) Chanc. 203. A testator, by his will, bequeathed his residuary estate to trustees, upon trust to pay the income " when and as the same should be due and received," to S C (a married lady), for her separate use, with- out power of anticipation. The residue comprised a bond on which interest was payable yearlv on the 31st of October. On the 23rd of May, 1860, S C assigned to A B all interest and moneys comprised in the bequest which had " accrued and become payable." On an appeal from a decision of the Master of the Rolls, — Held, by the Lords Justices, differing from his Honour, that the interest on the bond debt between the 31st of October, 1869, and the 23rd of May, 1860, did not pass by the assignment ; as well because the interest was not at the date of assign- ment " due and received " within the meaning of the clause restraining anticipation, as also because it had not "accrued and become payable" within the meaning of the deed of assignment. In re Brettle; JoUcmds v. Burdett, 33 Law J. Rep. (h.s.) Chanc. 471 ; 2 De Gex. J. & S. 79. A married woman S was entitled to a gross sum, payable on the death of her father, for her separate use, subject to a restraint on anticipation. During her father's life she promised, by letters, to repay to D out of the fund, when it fell in, advances made by him to her and her husband. After the death of her father the fund was paid into court, and S still being under coverture, verbally promised D that he should be paid out of the fund if he would offer no opposition to her application for payment out of court ; and it was accordingly paid to her ; — Held, that D had no charge on the ftind, the letters being ineffectual by reason of the restraint on anticipation, and the subsequent parol promise being void for want of consideration and under the Statute of Frauds. In re SyJces's Trust, 2 Jo. & H. 415. Upon the evidence that a married woman, desiring to execute a voluntary settlement, transferred stock, to which she was entitled for her separate use, into the names of trustees, and approved of a draft declaration of trust, — Held, that there was a locus pcenitentia, and that the trusts did not attach unless the draft had been finally authorized before the transfer to the trustees ; and an inquiry to that effect being answered in the negative, the fund was ordered, BARON AND FEME; (E) Separation Deeds. 65 on the petition of a married woman, to be retrans- ferred for her separate use. Ibid. Where personal property was bequeathed to a woman upon trust, for her separate use, but without the intervention of any trustee, and she afterwards, being discoverte and sui juris, sold the stock, spent a portion of the proceeds and invested the rest in shares of a joint-stock bank and Canada Bonds,— Held, that by so doing she had determined the trust for her separate use. Wright v. Wright, 2 Jo. & H. 647. A married woman, to whom alimony has been granted by the Ecclesiastical Court, may dispose by will, as against her husband, of her savings thereout, in the same manner as if she was a feme sole. Moore v. Barber, 34 Law J. Rep. (n.s.) Chanc. 667. (c) Liethility in respect of. The Court will not order the discharge of a mar- ried woman arrested on a ca. sa., if it appears that she has property settled to her separate and inalien- able use. After the refusal of the Court to discharge a married woman under the above circumstances, her husband obtained his discharge under the Bank- ruptcy Act, 1861. On a second application, on that ground, for the discharge of the wife, the Court refused to order the discharge on a rule, but gave the applicant leave to bring a writ o{ audita querela. Ex parte Sutler, in re Jay v. Amphlett, 32 Law J. Hep. (ir.s.) Exoh. 176 ; 1 Hurls. & C. 637. A married woman, who had property settled upon her in the usual way to her separate use, in 1837 made a joint promissory note with her husband for 9502., and delivered the same to his bankers as a security for his overdrawn account ; from time to time the note was renewed until the death of the husband, in 1855, the last renewal bearing date 1848. At the time of his death the debt due by the husband to the bankers was 2,3402. 16s. id., which was reduced by the realization of certain other securities they held to 9172. lis., for which sum, on the 28th of August, 1856, she, after her coverture had deter- mined, made and delivered her promissory note ; — Held, that there was a. good consideration for the last-mentioned note, as the note made in 1848, although made during coverture, was binding on her separate estate in equity, and that it was immaterial whether it was barred by the Statute of Limitations or not. Laiouche v. Latouche, 34 Law J. Rep. (n.8.) Exch. 85 ; 3 Hurls. & C. 576. J G, a married woman living apart from her hus- band, carried on business on her own account between the years 1849 and 1855. Messrs. B & "W, uphol- sterers, who were aware of her being married and separated from her husband, supplied her with goods and furniture used in her business during those years, for which she paid out of the money pro- duced by that business. In 1856 T G, the husband, executed a deed of separation made by himself, J G, his wife, and W S C, a trustee for her, by which deed T G assigned to W S C all the moneys, securities for money, household chattels, stock-in-trade and personal estate which J G had acquired or then possessed, or which might be then due to her in respect of her business, and all the estate and interest of him, the said T G, therein, to be held in trust for such persons and purposes as she should, notwiths'tandine; coverture, appoint, and, DiOBST, 1860—65. in default, in trust for her for her separate use T G covenanted that it should be lawful for J G to live apart from him ; that she might carry on any business ; and that any real or personal estate she might acquire might be held and disposed of by her as she pleased. W S C covenanted to indem- nify T G against all debts of J G while living apart from him. B & W, in 1856, after the date of this deed, continued to supply her with goods to the amount of above 600^., for which she from time to time paid money on account; and finally, in January, 1858, a balance of above 3722. was due. T G died in October in the last- mentioned year ; and Messrs. B & W having become bankrupt, their assignees filed a bill in the Chancery Court of the County Palatine of Lancaster against J G and W S C for the purpose of enforcing their claim against the property which, during the coverture of J G, constituted her separate estate. After the institution of this suit, J G exe- cuted a bill of sale to W S C of the whole of her separate estate for securing money due to him and further advances. The bill in the suit was then amended ; and, as amended, prayed a declaration of the priority of the plaintiffs* claim over the bill of sale. The Vice Chancellor of that Court made a decree declaring that the separate estate of J G at the time of her husband's death, and J G personally to the value of that estate at that time, were liable to the plaintiffs ; and that W S C took no higher interest in the separate estate than J G had therein at the date of the bill of sale;^ — Held, on appeal, overruling that decision, — the Lord Justice Knight Bruce considering that as the goods had not been obtained by fraud, but without the knowledge, on the part of B & W, of the position of J G, the circumstances of the case were insufficient to charge either herself personally, or her separate estate (the Lard Justice Turner, however, differing as to the ground of decision), — that the decree could not be supported ; and that the bill must be dismissed, but without costs. Johnson v. Gallagher, 30 Law J. Rep. (n.s.) Chanc. 298; 3 De Gex, F. & J. 495. General review, per the Lord Justice Turner, of the law relating to the rights and remedies of credi- tors of married women against their separate estates. Ibid. (E) Separation Deeds. A deed of separation between husband and wife contained a covenant by the trustees of the wife that she would not molest or disturb her husband : — Held, that a suit in the Divorce Court for a judicial sepa- ration was no breach of the covenant. Thomas v. Everwrd, 30 Law J. Rep. N.s.) Exch. 214 ; 6 Hurls. & N. 448. By a deed, executed before the Divorce Act (20 & 21 Vict. c. 85), on the separation of the defendant from Ann his then wife, on the ground of the wife's adultery, which was recited in the deed, the defendant covenanted with the plaintiff that he, the defendant, his executors or administrators, or some or one of them, would, during the natural life of the said Ann, pay her a certain annuity ; and in consideration thereof the plaintiff covenanted with the defendant that the said Ann should not sue for alimony, and also that the plaintiff would indemnify the defendant from all 66 BARON AND FEME— BASTARDY. debts which might be contracted by the said Ann. After the passing of the Divorce Act, the marriage between the defendant and the said Ann wag dis- solved by a decree of the Divorce Court by reason only of the adultery recited in the deed : — Held, that such dissolution of the marriage was no defence even on equitable grounds, to an action against the defendant for breach of his covenant to pay the annuity. Goslin v. Olark, 31 Law J. Rep. (u.s.) C.P. 330 ; 12 Com. B. Rep. N.S. 681. To an action on a covenant by the husband, con- tained in a deed of separation, to pay the plaintiff, his wife's trustee, a yearly sum for her maintenance, it is no defence at law or in equity that the deed contains a covenant of licence to the wife to live as if she was sole and unmarried, in such way as she might think fit, free from all restraint in her way of living ; nor, if the deed has been acted upon, is it any defence to such an action, that at the instance of the plaintiff the wife concealed from the husband the fact of her pregnancy, in order that he might be induced by such ignorance to execute the deed, and that he was induced by such ignorance to execute it. KendaU v. Webster, 31 Law J. Rep. (n.s.) Exch. 492 ; 1 Hurls. & C. 440. A husband, in a separation deed, covenanted with his wife's trustees, who indemnified him against her debts, that he would not compel or endeavour to compel her to cohabit or live with him by any legal proceedings, or otherwise howsoever : — Held, by the Master of the Rolls, upon a bill filed by the wife and her trustees, that she was not entitled to an injunction to restrain the husband from proceeding in a suit he had commenced in the Divorce and Matrimonial Court to obtain a restitution of conjugal rights, &c.; but this decision was reversed, upon appeal, and the injunction was granted. Bunt v. Hnrut, SI Law J. Rep. (n.s.) Chanc. 161. A husband who, by his misconduct, had proved himself unfit to have the custody of his children, executed a separation deed, by which he covenanted that his wife should live separate, and that his chil- dren should at all times be under her sole care and management, and that he would pay her certain annuities for her own maintenance and that of the children : — Held, by the Lord Justice Turner, that, under the circumstances, the covenant excluding the paternal right was not void as opposed to public policy, and by the Lwd Justice Knight Bruce, that it did not vitiate the rest of the deed ; and accord- ingly a decree made by the Master of the Rolls, at the suit of the wife, for payment of the annuities, and restraining the husband from removing or inter- fering with the children, was affirmed, on appeal, with a variation, however, making the injunction operate until further order only. Swift v. Swift, 34 Law J. Rep. (n.s.) Chanc. 394; 34 Beav. 266. (F) Wife's pbotected Pboperty. Under the 20 & 21 Vict. t. 85. s. 21. no police magistrate or Justices, other than those by whom the order was made, can discharge an order of pro- tection given to a married woman. Exparte Sharpe, 33 Law J. Rep. (n.s.) M.C. 152. Q«(Ere— Whether the Court for Matrimonial Causes has not power in all cases to discharge such an order. Ibid. The protection of an order granted to a wife under the 21st section of 20 & 21 "Vict. c. 85. is confined to the lawfiil earnings of lawful industry, and does not extend to earnings (or property purchased with earnings) acquired by her as keeper of a brothel. Mason v. MitcTieU, 34 Law J. Rep. (n.s.) Exch. 68 ; 3 Hurls. & C. 628. Under statute 20 & 21 Vict. c. 85. s. 21, the ap- plication to discharge an order for the protection of a wife's property must be made to the magistrate by whom it was granted ; or, semhlCf to the Court for Divorce and Matrimonial Causes. JR. v. Arnold, 5 Best & S. 322. (G) Actions ajxd Suits: Pleading akd Evi- dence IN. The provision of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), s. 40, that in any action brought by a man and bis wife for an injury done to the wife, in respect of which she is neces- sarily joined as a co-plaintiff, it shall be Jawful for the husband to add thereto claims in his own right, is not imperative, and therefore does not affect the husband's legal right to maintain a sepa- rate action for such claims. Broclcbcmk v. tke White- haven Junction Rail. Co., 31 Law J. Rep. (n.s.) Exch. 349 ; 7 Hurls. & N. 834. A married woman seeking to set aside an appoint- ment made by herself under a power should sue by her next friend, and not be joined as co-plaiotiff with her husband. Bope v. Fox, 30 Law J. Rep. (n.s.) Chanc. 272 ; IJo. & H. 456. (H) Offence op Desertion op Wife. To constitute the offence of desertion, under 5 Geo. 4. e. 83. s. 4, there must be a chaigeability of the wife or children consequent on the running away, and the offence is not completed until charge- ability : therefore it is sufficient, under 11 & 12 Vict. c. 43. s. 11, if the information be laid within six months of the chargeability — dissentiente £ram- well, B. Reeves v. Teates, 31 Law J. Rep. (n.s.) M.C. 241; 1 Hurls. & C. 436. BASTARDY. (A^ Proof of Illegitimacy. (B) Order of Affiliation. ( o ) Jurisdiction to make tke Order. { b ) Evidence in Support of. ( c ) Time for Appeal and Recognizance. (C) IWaintenance. (A) Proof of Illegitimacy. On a question of the legitimacy of the child of a married woman, the onus lies upon the person alleg- ing illegitimacy to shew that the husband and wife never were together, or that the interview took place under circumstances which rendered sexual inter- course impossible. The evidence to prove illegitimacy must be not only sufficient to raise strong doubts, but such as will produce conviction in the mind of Judge or jury, and there is no onus upon the party whose legitimacy is in question to shew opportunities of access. PUmes v. Bossey, 31 Law J. Rep. (N.s.) Chanc. 681,- 2 Dr. & S. 145. BASTARDY— BILL OF SALE. 67 (B) Order op Apfiliation, (o) Jurisdiction, to make the Order. J M, a single woman, made application on the 15th of June 1858 to S, a Justice of the Peace, for a summons against P, as being the father of her bastard child. The application was within twelve calendar months of the birth of the child. S issued the summons, but it was not served, owing to P absenting himself. On the 3rd of August 1859, S died. On the 14th of July 1860 J M made applica- tion to W (who was also a Justice) for another sum- mons. W issued such summons, and after a hearing of the case, the Justices in petty sessions made an order adjudging P to be the putative father of the child, and ordering him to pay, &c: — Held, that such order was bad, as W had no power to issue a summons upon the application which had been made to S, and as the application which was made to him- self was after the expiration of twelve months from the birth of the child. R v. Pickford, 30 Law J. Rep. (n.s.) M.C. 133; 1 Best & S. 77. A woman, having applied on two occasions for an order of affiliation to the Justices of the petty ses- sional division in which she had been residing with her parents, and been refused after a hearing on the merits^ took lodgings in a neighbouring borough, " because," as she deposed, " people said if she came there, she would have a better chance," and when she had been there nearly a month, she applied to the borough Justices and obtained an order of affiliation : — Held, that the object of the woman's removal was to obtain a new tribunal, and therefore she did not " reside " within the borough so as to give the borough Justices jurisdiction under 7 & 8 Vict c. 101. s. 2. R. V. Hughes distinguished. R. V. Myoa, 32 Law J. Rep. (sf.s.) M.C. 138. (6) Evidence in Support of. If, upon the hearing of a bastardy summons against A, the mother deny that B has had connexion with her at a particular time, evidence may be given to shew that B had such connexion with her, suppos- ing that the effect of such evidence is not merely to contradict her, but also to shew that B might by means of that connexion have been the father of the child ; such evidence being material to the issue. Ji. V. Gibbons distinguished. Gwbutt v. Simpson, 32 Law J. Rep. (n.s.) M.C. 186. Upon a complaint by a married woman, who was living apart from her husband, charging a third party under the 7 & 8 Vict. c. 101. with being the father of a bastard child of which she had been de- livered, evidence having been given which justified the magistrates in presuming non-access of the hus- band, — Held, that it was no ground of objection to their decision that the magistrates allowed the wife to be asked a question tending to prove non-access of her husband, the magistrates certifying that they found the non-access independently of her evidence. Yates V. Chippmdak, 11 Com. B. Rep. N.S. 612. (c) Time for Appeal and Secognisa/nce. Under the 7 & 8 Vict. c. 101. s. 4, which requires notice of appeal by the putative father against an adjudication in bastardy to be given to the mother within twenty-four hours after the adjudication and making of the order, and recognizances to be entered into within seven days, — the time runs from tht verbal adjudication at the petty sessions, and noe from the time the formal order is drawn up and signed by the Justices. B. v. the Justices of Flint- siS/re overruled. Ex parte Johnson, 32 Law J. Rep. (N.S.) M.C. 91 ; 3 Best & S. 947. Where, therefore, at petty sessions holden on the 17th of February, the Justices adjudged W J to be the putative father of a bastard child, and ordered him to pay a weekly sum for its maintenance, and a formal order, as of the 17th of February, was after- wards drawn up, and signed by one of the Justices on the 1st of March, and by the others on the 3rd of March ; and a verbal notice of appeal was given immediately on the adjudication, but a written notice was also given on the 2nd of March, and re- cognizances entered into on the 4th of March, — Held, that the recognizances were too late, and the appeal could not be heard. Held, also, that the irregularity in signing the order was not such as to vitiate it. Ibid. Qiusre — Whether the formal order must be signed by all the Justices at the same time ? and whether a verbal notice of appeal is sufficient under the 4th section? Ibid. (C) Maintenance. There is no obligation upon the personal repre- sentative of the mother of a bastard child to expend the money or property which belonged to the mother in the maintenance of such child. Ruttinger v. Temple, 33 Law J. Rep. (n.s.) Q.B. 1 ; 4 Best & S. 491. BENEFIT BUILDING SOCIETY. [See Friendly and other Societies. Also, Attornet and Solicitor (G) (5) (1) — In re Fage.'\ iii Pro- bill OP SALE. [See Bankruptcy — Ship and Shipping.] A) Validity of, in general. Assignment op after - acquired PEKTT. C) Construction of. D) Registration of. E) Filing op. F) Affidavit of Attesting Witness. G) Description op Assignor and op Attest- ing Witness. (A) Validity op, in general. B executed a bill of sale, by way of mortgage, of household goods to D (the plaintiff), as a security for a debt of 130Z., then due from him to D, and for a further advance of 160i. then to be made, the receipt of which was acknowledged, and the execu- tion purported to be attested, on the day the bill was dated, the 9th of January. The 160L was not in fact paid till two days after ; and the signature of the attesting witness was afiixed on the latter day. The bill of sale was registered as of the 9th of January, the day it bore date. The goods mort- gaged remained in the possession of B, and were so 68 BILL OF SALE; (A) Validitt op, ih gbheeal. when seized under a writ of fi. fa., at the suit of T (the defendant) against B. At the trial of an inter- pleader issue of D V. T, there was evidence that, before the mortgage was executed, D was aware that an execution might be expected against B's goods. The Judge left to the jury the question whether the transaction between B and D was 6ona fide or a mere sham. The jury having found that the tratis- action was hoiiafide, the plaintiif had a verdict ; and the Court, on a motion for a new trial on the ground of misdirection, held, approving Wood v. Dixie, that inasmuch as the mortgage, even if made with the intention of defeating an execution creditor, was not necessarily void, that the direction was sufficient ; and that, the consideration-money having been paid two days after the execution of the bill of sale, the registration was not informal. Darvill v. Terry, 30 Law J. Rep. (n.s.) Exch. 355 ; 6 Hurls. & N. 807. Under the Bills of Sale Act (17 & 18 Vict. c. 36.) ss. 2 and 3, it is not necessary that the vendee should state on the bill of sale the name of the person who really advances the money, unless there be some trust in favour of the vendor, although the circum- stances be such that a Court of equity would hold the vendee to be a trustee only. Robinaon v. Col- Ungwood, 34 Law J. Rep. (n.s.) C.P. 18 ; 17 Com. B. Rep. N.S. 777. E, by an agreement in writing, sold certain timber lying partly on his private wharf and partly on a public wharf, to G for 300Z., E agreeing to pay all rent and other charges upon the timber for six months, within which time G was to remove it. G took possession of the key of the private wharf and sold some of the timber lying there, but he did nothing with reference to the timber on the public wharf (the key of which remained in the hands of the wharfinger), except taking persons to look at it with a view to its sale. E, by another written agree- ment, sold to G for 50Z. some furniture lying in a house, the property of E, and part of which house E had previously used as an office and occasionally slept in, but of which apartments E had the use. By the agreement G out of the 60^. was to pay the wages due to E's servant, who -remained in the house, and the rates and taxes. E did not use the house after the agreement :^-Held, that on these facts there was no possession or apparent possession of the timber, either at the private or public wharf, or of the furniture, by E within the Bills of Sale Act, 17 & 18 Vict, c. 36, so as to render thera liable to seizure under an execution against E. Gough V. Everard, 32 Law J, Rep. (u.s.) Exch. 210 ; 2 Hurls. & C, 1. Quasre — V\' hether the agreements were "bills of sale " within the meaning of the statute. Ibid. (B) Assignment of after-aoqciked Pkoperty. A, by deed, assigned to B all the machinery in and about a certain mill, upon trust for securing a sum of money ; and it was thereby provided, that all the machinery which, during the continuance of the security, should be fixed or placed in the cnill, in addition to or substitution for the former machinery, should be subject to the trusts of the assignment, and A undertook to do all that was necessary to vest the substituted and added machinery in B. The assign- ment was duly registered as a bill of sale, and, after the date of it, A placed other machinery in the mill, in addition to that which was there at the date of the assignment, and gave notice to B of each substi- tution and addition. A continued in possession according to the terms of the assignment. Vice Chancellor Stuart held, that the machinery being in A"s possession, as agent of B, B was entitled, as against a judgment creditor of A who had sued out execution against A, to the additional machinery; but this decision was reversed by Zord Chancellor Campbell, on the ground of A's possession not being sufficient to support B's claim, and on the ground that to give B the complete title to the substituted and added machinery, it was necessary that there should be a novus actus interveniem. BoVroyd v. Marshall (House of Lords), 33 Law J. Rep. (n.s.) Chanc. 193 ; 10 H.L. Cas. 191; in the Court below, 30 Law J. Rep. (n.s.) Chanc. 385. After-acquired chattels may be assigned in equity, and words of agreement to assign, or of licence to seize, may, in equity, operate as an actual assign- ment; but if according to the proper construction of the words used, a mere licence to seize is intended, they will have no effect until actual seizure. Reeve v. Whitmore; Martin v. Whitmore, 32 Law J. Rep. (n.s.) Chanc. 497; 33 Law J. Rep. (n.s.) Chanc. 63. The lessee of a brick-field executed to G a bill of sale of the bricks, plant, &c. then in and upon the pre- mises, to secure 3,000?., with interest, to be repaid on a specified day, with a proviso that the lessee should have the use and enjoyment until default, or the expiration of one day after notice in writing by G requiring possession, when possession should be given, with a power of entry and sale. And the lessee gave and granted to G, his executors, administrators and assigns, or his or their agents or servants, licence at all times during the continuance of the security to enter on the premises and there remain, and seize and hold possession of the property then on the premises, as if the same formed part of the chattels thereby assigned. The lessee subsequently executed other bills of sale to R in a similar form. G, who assisted the lessee in the management of his business, deposited his bill of sale and the papers relating to the brick-field with his private bankers by way of equitable mortgage. Subsequently, the lessee fell into difficulties and R took possession, and shortly afterwards G having become bankrupt, the assignee in bankruptcy of G also took possession by the mes- senger, and refused to withdraw. The bankers had omitted to give notice to the lessee, who swore that he was not, until G's bankruptcy, aware of the deposit having been made: — Held, that the bill of sale to G operated as an assignment only of the property then on the brick-field, with a licence to seize future property. Also, that the bankers could only claim what was due from the lessee to G at the date of his bankruptcy, the business relations between the lessee and G not being sufficiently intimate to warrant the Court in inferring that the former had notice of the deposit. Ibid. Qiiare — Whether the entry by the messenger was an exercise of the right of seizure conferred by G's security. Ibid. A receiver having been appointed and put into possession by the Court of Chancery, and the exer- cise of the licences to seize having been thus pre- vented,- — Senible, That the rights of the mortgagees in reference to after-acquired property must be BILL OF SALE; (D) Rkoistration op. 69 determined by reference to what they might have done under their powers to seize at the time when the Court interfered. Ibid. G K, who was a trader, by a bill of sale, assigned to the defendant "all his household furniture, plate, linen, china, glass, all his stock, cattle, horses, farming implements, crops, hook-debts, and all other his per- sonal estate and effects whatsoever then being or hereafter to be upon or about his dwelling-house, farm and premises." The bill of sale also empowered the defendant, " in case the sum of 3001. and interest should not be paid on demand, to enter upon the premises which might be in the occupation of the debtor, and there distrain the goods and chattels there found for the sum of 3002. and interest." After the execution of the bill of sale, G K purchased goods from time to time in the way of his trade, some of which were upon and about his premises on the 8th of January, 1862, on which day a formal demand of the sum of 3002. was made on G K's wife, and on non-payment of the same, on the same day, the de- fendant entered and seized all the furniture, goods, chattels and effects found upon the premises : — Held, that the demand on the wife was not a sufficient demand, and that the property acquired by G K after the execution of the bill of sale did not pass to the defendant. Belding v. jRead, 34 Law J. Rep. (N.S.) Exch. 212 ; 3 Hurls. & C. 955. (C) CoNSTKDCTIOlf OF. A receipt in the following form: ''Received of J D and C J, the trustees under the deed of settle- ment, for the benefit of my wife, the sum of 931. 6s. 6d. for the purchase of my household goods and effects mentioned in the inclosed inventory and valuation as purchased this day by J D and C J, as trustees named in the deed of settlement, and empowered to purchase by such deed," is not a bill of sale within the statute 17 & 18 Vict. c. 36. Allsop V. Day, 31 Law J. Rep. (n.s.) Exch. 105; 7 Hurls. & N. 457. Semble — A bill of sale within that act must be an instrument by which property was intended to pass. Ibid. By a deed, in consideration of 410?. money ad- vanced, the present and future stock, &c. of the plaintiff were assigned to the defendant, subject to a proviso that if the money were repaid at the end of ten years, or at such earlier day or time as the defendant should appoint by notice in writing, sent by post, or delivered to the plaintiff, or left at his house or last place of abode, the deed should cease and be void: provided that if default should be made in payment contrary to the proviso, then and imme- diately thereupon it should be lawful for the defen- dant to enter upon the plaintiff's premises and seize and sell the goods, &c. The defendant served a notice on the planitiff at noon to pay the money due at half-past twelve p.m. of the same day, and then, on default, seized and sold the goods on the plaintiff's premises: — Held, that the notice, under the deed, must be a reasonable notice, and that half-an-hour's notice was not reasonable. Brighty v. Norton, 32 Law J. Rep. (n.s.) Q-B. 38 ; 3 Best & S. 305. By a bill of sale the plaintiff covenanted to pay to the defendants the sum secured, with interest, immediately on demand in writing being made to him or left at his place of abode. If he did not immediately on such demand pay the money the instrument authorized the defendants to break and enter the plaintiff's house, and seize and sell the goods conveyed, but until default in payment on such written demand the plaintiff was to use and enjoy the goods as his own. By the defendants' directions, their attorney wrote a paper demanding from the plaintiff immediate payment of the sum and interest (not stating the amount of interest), and gave it to J to give it to the plaintiff, and the attor- ney authorized J to receive the money. J gave the paper to the plaintiff, but did not tell him that he had authority to receive payment. The defendants, by their agent, seized the plaintiff's goods before reasonable time had been allowed the plaintiff to pay the money to the defendants or to their attorney: — Held (affirming the decision below, 32 Law J. Rep. (n.s.) Q.B. 33; 4 Best & S. 442), that there had been a due demand of payment, but that there had been no default in payment on the part of the plaintiff, as a reasonable time for making payment had not expired before his goods were seized ; that, consequently, the plaintiff wasentitledtomaintainan action for takinghis goods, but that the measure of damages should be, not the value of the goods, but the vahie of the plaintiff's interest in them at the time of seizure. Toms v. Wilson (Ex. Ch.), 32 Law J. Rep. (N.S.) Q.B. 382; 4 Best & S. 455. B, who was yearly tenant of the dwelling-house which he occupied, being indebted to the plaintiff, executed a bill of sale, by which he assigned to the plaintiff '"all the household goods, furniture, stock- in-trade and other household effects, and all other goods, chattels and effects in or about the said dwelling-house," " and all other the personal estate whatsoever," of^ the said B, with power to the plaintiff to sell the same in case of default in payment of the debt due to him from B, and to stand possessed of the moneys to arise from such sale, upon trust to satisfy the expenses and debt, and to account for the surplus, if any, to the said B: — Held, that notwith- standing the general words used, B'sterm or interest in the said dwelling-house did not pass under such bill of sale to the plaintiff. Marrison v. Bladcbum, 34 Law J. Rep. (n.s.) C.P. 109 ; 17 Com. B. Rep. N.S. 678. Held, also, that even if the term did pass, the plaintiff could not before entry maintain an action of trespass in respect of such dwelling-house. Ibid. (D) Registration of. The 24 & 25 Vict. c. 91. ». 34,— which enacts that no copy of any bill of sale of personal chattels shall be filed unless the original be produced to the officer duly stamped, — does not invalidate the regis- tration, otherwise regular, of a bill of sale not duly stamped ; but on payment of the penalty and stamp duty required, the bill of sale is available under the 17 & 18 Vict. c. 36. s. 1. Bellamy v. SauU, 32 Law J. Rep. (n.s.) Q.B. 366 ; 4 Best & S. 265. A debtor, unable to meet his engagements with his creditors, entered into a deed commencing as follows: "To all to whom these presents shall come, we, whose names and seals are hereunto subscribed and set, being severally and respectively creditors of V, &c., greeting." The deed then re- cited that V. was indebted to the said several cre- ditors in the several sums set opposite to their names 70 BILL OF SALE; (E) Filiwq of. in the schedule to the deed, and that V, being un- able to pay his debts in full, had offered a composi- tion of 7s. 6d. in the poand, payable by instalments, guaranteed by D B, which sum the said creditors covenanted to accept in full satisfaction of their claims. Then followed a release in the usual form. The deed then stated that D B having agreed to become security for the due payment of two sums of 3a. and 3s. in the pound to the said several cre- ditors whose names are mentioned in the said schedule, " hereby guarantees the due payment of the said respective sums of 3s. and 3s. in the pound to the said creditors ofV, and whose names and claims are mentioned in the said schedule ; and we, the said several creditors, agree to accept the said D B as security for the due payment of the said sums," &c. ; and V hereby covenants with the said D B, that in consideration of the said D B having become security as hereinbefore mentioned, he, V, has granted and assigned unto the said D B all his stock-in-trade," &c. " for the payment of the said respective sums of 3s. and 3s. in the pound as here- inbefore mentioned, in trust for the said creditors " : — Held, that the deed appeared on the face of it to be a deed for the benefit of all the creditors of V ; and that it was exempt from registration by the 7th section of the 17 & 18 Vict. u. 36, as an assignment for the benefit of the creditors of a person making or giving the same. The General Fwmishing and Vphohtery Oo. \. Venn, 32 Law J. Rep. (n.s.) Exch. 220 ; 2 Hurls. & C. 163. (E) FiLINO OF. The filing of a copy of a bill of sale of personal chattels is valid and effectual under the statute 17 & 18 Vict. c. 36, although the original bill of sale has been previously altered or destroyed. The pro- perty in the chattels will remain in the person to whom they were conveyed by the deed on its exe- cution. Green v. Atteriborough (Ex. Ch.), 34 Law J. Rep. (n.s.) Exch. 88 ; 3 Hurls. & C. 468. By section 1. of 17 & 18 Vict. c. 36, every bill of sale of personal chattels, if not filed within twenty- one days after the making or giving of such bill of sale, shall, as against all assignees, &c., and as against all sheriff"'s oflBcers and other persons seizing any property comprised in such bill of sale, be null and void so far as regards the property in or right to the possession of any personal chattels comprised in such bill of sale, which at the time of executing such process, and after the expiration of the said period of twenty-one days, shall be in the possession or appa- rent possession of the person making such bill of sale : — Held, that such a bill of sale is not invalid by reason of its not having been filed, if the effects comprised in it are seized before the expiration of the time within which it might have been so filed, and, therefore, that when a bill of sale was given on the 27th of June, and a writ of Ji. fa. was issued, under which the sheriff seized on the 5th of Julv, the person claiming under the bill of sale was not prevented from setting it up, and asserting that the eff^ects were his, although at the time of seizure it had not been filed. Marples v. Hartley, 30 Law J. Rep. (n.s.) Q.B. 92 ; 3 E. & E. 610. (F) Affidavit of Attesting Witness. It is no objection to the affidavit required by section 1. of the Bills of Sale Act (17 & 18 Vict, c. 36.) that it is entitled in the Queen's Bench, and is stated to be sworn before a Commissioner of the Exchequer, if that Commissioner be, as is generally the case, also a Commissioner of the Queen's Bench j the teat being, whether the party making the afliida- vit could be convicted of perjury if it were false ; which, semble, he might be under the above circum- stances. Cheney v. Courtois, 32 Law J. Rep. (n.s.) C.P. 116 ; 13 Com. B. Rep. N.S. 634. (G) Description of Assignor and of Attesting Witness. G & H carried on the business of printers in partnership, at New Street, Blackfriars, in the city of London. They were described in a bill of sale given by them, and in the affidavit filed pursuant to the 17 & 18 Vict. c. 36. s. 1, as residing in New Street, Blackfriars, in the county of Middlesex, and as printers and copartners : — Held, that the descrip- tion of residence was sufBcient under the statute; for that the description of G & H as " residing at New Street, Blackfriars" (without adding "in the city of London "), " printers and copartners," would have been sufficient information for the purpose of identi- fication to persons dealing with G & H, and the addition of " in the county of Middlesex " could not have misled them. Hewer v. Cox, 30 Law J. Rep. (n.s.) Q.B. 73 ; 3 E. & E. 428. The affidavit, required bj the 17 & 18 Vict. c. 36. B. 1. to be filed with the bill of sale, must contain a description of the residence and occupation of the maker of such bill of sale at the time of making such bill, and not at the time of filing the affidavit. London and Westminster Loan Co. v. Chace, 31 Law J. Rep. (n.s.) C.P. 314 ; 12 Com. B. Rep. N.S. 730. Where however the affidavit described the maker of the bill of sale as "a gentleman," which wjs a correct description at the time of making the bill of sale, but not at the time of filing the affidavit, the Court held, that the word related back to the time of making the bill of sale, so as to satisfy the require- ments of the statute. Ibid. One who up to and at the time of the execution of a bill of sale has never been actually engsged in any trade or occupation, is properly described therein (or in the affidavit filed therewith) as a " gentle- man." Gray v. Jones, 14 Com. B. Rep. N.S. 743. In a bill of sale the grantor was described as " James Robert Veal, of No. 25, Bernard Street, Russell Square, in the county of Middlesex, gentle- man." In the affidavit filed therewith, pursuant to 17 & 18 Vict. c. 36. s. 1, he was described in the same way. The description of his residence was correct, but he was in reality at the time of giving the bill of sale in the employ of C & Co. of Walling Street, in the city of London, as a buyer of silk : — Held, that the bill of sale was invalid by reason of the description being incorrect. Adams v. Graham, 33 Law J. Rep. (n.s.) Q.B. 71. Where goods are seized under a ji. fa. within twenty-one days of the making of a bill of sale, the Bills of Sale Act, 17 & 18 Vict. c. 36, does not apply, although the form of registering the bill of sale has been gone through, but in a defective manner. Banlwy v. White, 32 Law J. Rep. (n.s.) Exch. 268 ; 2 Hurls. & C. 300. BILLS OF EXCHANGE AND PROMISSORY NOTES. 71 The attesting witness to the bill of sale was in the attestation truly described as an attorney. The affidavit filed with the bill of sale was made by the attesting witness, who there described himself as " gentleman," and deposed that the bill of sale, a true copy whereof and of the attestation of the execution thereof was thereunto annexed, was made by, &c., in the presence of and duly attested by the deponent, and then proceeded, ** and I further say that my residence and occupation hereinbefore set forth is the true description of my residence and occupation." Qucere — Whether there was a sufficient compliance with the Bills of Sale Act ? Ibid. BILLS OF EXCHANGE AND PROMISSORY NOTES. [Certain restrictions on the negotiation of pro- missory notes and bills of exchange under a limited sum removed by 26 & 27 Vict. c. 105.—' The Sum- mary Procedure on Bills of Exchange (Ireland) Act (1861),' amended by 25 & 26 Vict. c. 23.— The law relating to bills of exchange and promissory notes in Ireland amended by 27 Vict. c. 7.] (A) FoKM AND Operation of. (a) In general. tb) Payee. ( c) Imperfect Instrument. (B) Stamp : Canoellino on Foreign Bill. (C) Acceptance. (a) By Partners. (6) Per Pro. (D) Transfer. (a) In general. 1 6) BUI drawn m several Parts. (e) Indorsement of Bill payable to Order by Discounter, {d) After Maturity. Discharge from Liability on. (a) By Payment. (b) By giving Time. (F) Consideration. (G) Notice of Dishonour. (H) Actions and Suits. (a) In general. \b) In respect of lost BUI or Note. Summary Procedure on. Cheques. (E) (I) (K) (A) Form and Operation of. (a) In general. An instrument in the form of a bill of exchange, drawn by A S, was accepted by tTie defendant for a debt due from A S to the plaintiff. The plaintiff's name was in the body of the instrument as the payee, and in the corner at the foot of it the plain- tiff's name and address were written by the defendant as follows: " To Mrs. Emma Fielder, Nelson Lodge, Trafalgar Square, Chelsea ": — Held, that the instru- ment was not addressed to any one, and might be treated as a promissory note. Fielder v. Marshall, 30 Law J. Rep. (n.s.) C.P. 158; 9 Com. B. Rep. N.S. 606. The defendant, intending to become surety to the plaintiffs for A, put his name at the back of a blank bill stamp, on which A wrote his name as acceptor, and the plaiji tiffs then drew upon it a bill of exchange payable ) Closing. (C) Burial Fees. (A) Burial Boards; (a) Election of Members : Vacamcies. By the 15 & 16 Vict. c. 85. S; 12, any vacancies in a burial board may be, filled up by the vestry when and as they shall think fit ; by the 18 & 19 Vict. c. 128. B. 4, any vacancy shall be filled up by the vestry within one month after it shall have hap- pened ; and in case any vestry shall neglect to fill up such vacancy, it may be filled up by the burial board : — Held, that a vacancy having occurred, the vestry might fill it up after the month, the burial board not having done so. R. v. Overseers of South Weald, 33 Law J. Rep. (n.s.) M.C. 193 ; 5 Best & S. 391. (b) District Parishes. The mere fact that a parish has been divided into three separate parishes for all ecclesiastical purposes, under the 58 Geo. 3. c. 45, does not prevent the vestry of the old parish from appointing a burial board, under the 16 & 16 Vict. c. 86. s. 10 ; and a burial board having been appointed for the old parish, and it not appearing that either of the new parishes had appointed a burial board under the 20 & 21 Vict. c. 81. B. 5, the Court granted a peremptory mandamus to the overseers of the old parish to pay to the burial board out of the poor-rates of the entire parish the expenses which they had incurred. iJ. v. the Overseers of WaZcot, 31 Law J. Rep. (n.s.) M.C. 217 ; 2 Best & S. 565, Where a parish has been divided into separate parishes for ecclesiastical purposes under the 58 Geo. 3. C; 45, and the vestry of the old parish collectively has appointed a burial board and established one burial-ground for the whole parish, the vestry of one of the new parishes may also appoint a burial board under the 20 & 21 Vict. c. 81. s. 5 ; and the Court granted a peremptory mandamus to the overseers of the old parish to levy a rate upon such new parish and to pay the burial board of that parish, pursuant to their certificate, the expenses they had incurred: jR. V. the Overseers of Walcot St. Swithin, 31 Law J. Rep. (n,s.) M.C: 221 ; 2 Best & S. 571: QacEre — How far the powers of the old board are abrogated by the above section. Ibid: (B) Burial Grounds. (a) For United Parishes. The parish of A and the hamlet of C constituted one parish for all ecclesiastical purposes. They had one church for their joint use, and, up to January 1860, one burial-ground adjoining the church. A and C respectively maintained their own poor, appointed their own overseers, surveyors of highways, assessors of taxes and constables> and made out their own jury lists and lists of voters; The ratepayers of each were accustomed to meet in one vestry and to transact all business usually performed in a vestry, with the exception of the above separate matters. The vestry of A and C resolved that a burial board should be appointed, and they did in fact appoint one, and obtained the approval of a Secretary of State. The burial board borrowed money on mortgage for the purposes of providing, laying out and inclosing a burial-ground, and charged the future rates of the pmish of A with the payment of such moneyj and the interest thereon: Subsequently, the board re- quired a sum of money for paying the agreed interest upon the said principal money, and also a sum for the purpose of providing a sinking fund in order to pay off" the debt, and they made an order upon the overseers of C to pay out of the rates for the relief of the poor of C the sum of — I., which had been ascertained by apportioning the expenses between A and C in proportion to the value of the property in them, as rated to the relief of the poor : — Held, that A and C were united parishes within the meaning of section 11. of the 18 & 19 Vict. c. 120, and that the one burial board was rightly constituted for the two together: — Held, also, that the order upon the over- seers of C was good, as the proportion to be paid by A and C respectively ought to be calculated accord- ing to the rateable value from time to time as it became necessary to raise the money : — Held, also, that the expenses of providing a burial-ground, of paying the mortgage moneys, and the ordinary ex- penses of maintaining the burial-ground were to be raised in the same way : — Held, also, that the mort- gage-deed was not defective by reason of its charging the sum borrowed upon the future rates of the one parish, and also upon the future rates of the other part of the parish. R. v. the Overseers of Coleshill, 31 Law J. Rep. (n.s.) Q.B. 219 ; 2 Best & S. 825 : affirmed in Ex. Ch., 34 Law J. Eep. (n.s.) Q.B. 96; 4 Best &S. 667. 78 BURIAL— CANAL AND CANAL COMPANY. (J) Olosimg. The 18th section of the IS & 19 Vict. c. 128,— which enacts, that in every case in which an Order in Council is issued for the discontinuance of burials in any churchyard or burial-ground, the burial board or churchwardens, as the case may be, shall maintain such churchyard or burial-ground of any parish in decent order and keep its fences in repair, the ex- penses to be repaid by the overseers out of the poor- rates of the parish or place in which such burial- ground is situate, — applies only to a burial-ground belonging to a parish, and does not extend to a burial- ground the property of private persons. iZ. v. the Burial Board for iSt. John, Westgate, and Elsvnck, 31 Law J. Rep. (n.s.) Q.B. 15 ; 1 Best & S. 679: affirmed in Ex. Ch., 31 Law J. Rep. (n.s.) Q.B. 205 i 2 Best & S. 703. (C) BnaiAL Feeb. The Burial Acts do not give or confer upon the vicar of a parish claiming an undefined interest in an adjoining district, of which he is not " incumbent," any right to receive fees for the performance of the burial service over the remains of the inhabitants of such district buried within a cemetery established therein when no fees have ever been paid to the vicar for such service, and their right of sepulture within the parish has always been denied. Hornby v. tlic Burial Board of Toxteth Park, 31 Law J. Rep. (n.s.) Chanc. 643 ; 31 Beav. 52. An incumbent of a church or ecclesiastical district, ■ to sustain his right to perform the burial service and receive the fees for interment in a cemetery estab- lished under the Burial Acts, must shew that the inhabitants of the parish or district from which the person dying came had a right to be interred in the churchyard or burial-ground of the parish or district, and that he would have had a right to the fees had the person dying been interred therein. Ibid. But an incumbent of a parish or district having neither a churchyard nor burial-ground belonging to the church, or having only a burial-ground in which the right to interment could only be obtained by purchase, is not entitled to perform the burial ser- vice in a cemetery over the body of a late inhabitant of his district or to claim any fees for the interment, though the burials in the ground in which interments might be purchased are diminished. Ibid. A cemetery made under the Burial Acts may in effect convert a district in which a cemetery is established into a distinct parish. Ibid. In a divided district neither the vicar of the parish nor the incumbents of the churches can claim the fees paid for the burials in a cemetery formed within the district, as none of them collectively or indi- vidually fill the character of incumbent within the meaning of the Burial Acts. Ibid. BY-LAW. Under the provisions of a local act, certain persons were empowered to make by-laws for the regulation of the common pastures within the borough of B. Among others, they made a by-law to the following effect : " If any person shall stock or depasture, or attempt to stock or depasture any bull or entire or vicious horse .... on any part of the said common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock or cattle, shall respectively forfeit and pay for every such offence the sum of bl., to be levied and recovered according to the form of the statute in that behalf":— Held, that this by-law was divi- sible; and that although the latter part as to the owners of the animal was bad, the former part was good, and therefore that a person who depastured a vicious horse upon the common pastures might be ordered to pay the 51. penalty. B. v. Imndie, 31 Law J. Rep. (tr.s.) M.C. 167. CANAL AND CANAL COMPANY. (A) CONSTKDCTION OF CaNAL AoTS. (a) Compensation to Mine Owners andothers. (b) Right of Mine Owner to work Mines when not prohibited. ( c ) Rights of Pishing. (B) Tolls ; Inequality. (A) CoNSTKuonoN OF Canal Acts. (a) Compensation to Mine Owners and others. By the 9 Geo. 4. e. 98. the undertakers of the Aire and Calder Navigation were empowered to make a canal, and enter lands for the purpose, making satisfaction to the owners; and in case a difference should arise between the undertakers and the owner of any lands, &Ci, which might be taken and damaged or prejudiced by the execution of any of the powers granted by the act " touching the purchase-money or recompense to be made," a jury were to be summoned who were " to assess and ascer- tain the sum to be paid for the purchase of the land, and also what other separate and distinct sum should be paid by way of recompense, either for the damage which might before that time have been sustained as aforesaid, or for the future temporary or perpetual continuance of any recurring damages which should have been so occasioned, and the cause of which should have been only in part obviated or repaired by the undertakers, and which could or would be no further obviated, repaired or remedied by them." All mines and minerals were reserved to the owners of the lands taken or used for the purposes of the act, with power to get them, provided that in working them no injury should be done to the canal ; and power was given to the undertakers to enter any lands through or near to which the canal should pass, and to examine any mines worked thereon, and, if they had been worked contrary to the direction of the act, to require the persons so working the mines to desist. There were no clauses in the act obliging the undertakers to purchase the minerals under or near the canal, or to make any compensation to the owners for preventing the working so near to the canal as to injure it. In 1833 certain lands were conveyed under the act to the undertakers. It was known at the time that there were seams of coal under the land conveyed and under the adjoining land of the same owner, but it had not been then ascertained whether the coal could or would be gotten. There was no dispute between the parties as CANAL AND CANAL COMPANY. 79 to the amount to be paid ; one sum was agreed on as the purchase-money, and no question was raised as to any other compensation for damage. The canal was constructed through the land ; and a tenant, under a lease subsequent to the conveyance, began to work the coal under and near to the canal, when he was stopt by the undertakers under the powers of the act : — Held, that the tenant was not entitled to any compensation from the undertakers for this hin- derance. jB. v. the Undertakers of the Navigation of the Rivers Aire and Colder, 30 Law J. Rep. (h.s.) Q.B. 337. The Dudley Canal Act, 16 Geo. 8, provides that no owner of mines shall carry on any work for getting such mines under any tunnel, or within twenty yards of the same, without the consent of the company; and that no owner of any mines shall, without such consent, carry on any work for coal or minerals within twelve yards of the canal, "except as hereinafter mentioned." Then follows a clause which provides that the owners of mines may without consent, get coals and minerals beyond the prescribed limits ; and also a clause which provides that the company may enter upon lands and mines for dis- covering the distance of the canal from the working parts of such mines, and that if any mine shall be worked contrary to the act, they may use all neces- sary means for making the canal safe. By a sub- sequent clause it is provided, that when the owner of any mine lying under the canal or within the limited distance shall be desirous of working the same, he shall give the company three months' notice of his intention, and upon the receipt of such notice it shall be lawful for the company to inspect such mines in order to determine what minerals may be gotten without prejudice to the canal ; and if upon inspection the company shall refuse to permit the owners of such mines to work them, then the com. pany shall within three months pay to the owners the value thereof. Another clause provides, that nothing in the act contained shall defeat the right of any owner of land through which the canal shall he made, to the mines under the land used for the canal, and that it shall be lawful for such owner to work such mines, provided that no injury be done to the navigation : — Held, in the Exchequer Chamber, that the prohibition against working any mine within twenty yards of a tunnel without the consent of the company, was not absolute, but subject to the same exception as working within twelve yards of the canal, and therefore if the company refuse to permit the owner of a mine to work it within twenty yards of a tunnel they are bound to pay him the value thereof. The Bijmdngham Canal Navigation Co. V. the Earl of DvMey (Ex. Ch.), 7 Hurls. & N. 969. By the 32 Geo. 3. c. 100, " an Act for making a canal from the Cromford Canal in the county of Nottingham to the town of Nottingham and the river Trent," certain commissioners were appointed for carrying out the purposes of the act, who were directed, in case of a dispute between them and the proprietors of land adjoining the canal concerning the amount of compensation to be paid to the latter for damages sustained by the execution of the powers of the act, to take measures for summoning a jury, for whose verdict as to the amount of compensation they should give judgment, It was then declared that the verdict of the jury and the judgment of the Commissioners should be binding and conclusive to all intents and purposes ; — Held, that the verdict of the jury was conclusive only as to the amount, and not as to the right of the claimant to compensation, which might be elsewhere contested. Ba/rher v. the NottiMgham and Oramiham, Rail. Co. (Lim.), 32 Law J. Rep. (if.s.) C.P. 193 ; 16 Com. B. Rep. N.S. 726, In an action for injury caused by the leaking of water from a reservoir belonging to the canal, it was pleaded that the damage was caused by the leaking of water through the banks of the reservoir, and not in any manner whatsoever by reason of the execu- tion of the powers of the act, but by the default of the plaintiifs themselves in sinking shafts and pits in their own land, and so causing large quantities of water which naturally lay in the underground soil in which the pits and shafts were sunk, and which formed the banks and support of the said reservoir, to leak out and flow into the said shafts and pits : — Held, on demurrer, that the plea was bad. Ibid. (6) Right of Mine Owner to work Mines when not prohibited. A Canal Act provided that no owner of any iffines should carry on any work for the getting of coal or minerals within the distance of twelve yards from the canal ; nor should any coals or other minerals begot under any part of the canal or towing-paths or under any reservoir to be made by the company, or under any land or ground lying within the distance of twelve yards of either side of the canal, or any reservoir, &c., except as thereinafter mentioned, without the consent of the company. By another clause, it was provided, that when the owner of any coal-mine, &c. lying under the canal, towing-path, reservoir, &c., or within the distance thereinbefore limited, should be desirous of working the same, then such owner should give notice of his intention to the company three months before he should begin to work such mines lying as aforesaid ; and upon the receipt of such notice it should be lawful for the company to inspect such mines, in order to deter- mine what coal or other minerals might be come at and actually gotten, &c., and if the company should neglect to inspect such mines within thirty days next after the receipt of such notice, then the owners of such mines were authorized to work such part of the said mines as lay under the canal or reservoir, or within the distance aforesaid ; and if upon inspection the company should refuse to permit the owners of the mines to work such parts of the mines lying as aforesaid, or any part thereof, as they might have come at and gotten, then the company should within three calendar months pay to the owners the value thereof. By another clause, it was provided, that nothing in the act contained should defeat, prejudice or affect the right of any owner of lands or grounds upon or through which the canal, &c. should be made, to the mines lying within or under the lands or grounds to be set out or made use of for such canal, but all such mines were reserved to such owners respectively ; and that it should be lawful to such owners, subject to the conditions therein con- tained, to work all such mines, provided that in working such mines no injury be done to the said navigation, anything therein contained to the con- trary notwithstanding ;— Held, that where notice had 80 CANAL AND CANAL COMPANY— CARRIER. been given by the owner of a coal-mine of his inten- tion to work the same under a reservoir belonging to the canal company, and the latter did not inspect the mines, or prohibit his working, or purchase his rights, the mine-owner, notwithstanding the proviso to the lastrmentioned clause, was entitled to work ■the mine under such reservoir in the usual and ordinary mode; and, the reservoir having been damaged by reason of such working, that no action was maintainable by the company against the mine- owner for such damage. The Stourbridge Canal Co. V. the Earl of Dudky (Ex. Oh.), 30 Law J. Rep. (ir.s.) Q,.B. 108; 3 E. & E. 409. (c) Rights of Fishing. A Canal Act provided that the lord of every manor through which the canal and reservoirs thereto belonging should be made, should be entitled to the right of fishery in so much of the canal and reservoirs as should be made in, over or through the common waste lands within his manor, and that the owners of any other lands through which the canal should be made, should also have the like right of fishery of and in so much of the said canal as should be made in, over or through their lands wherein they had the right of fishery before the passing of the act: — Held, that the right reserved to the lord of the manor was confined to common or waste lands where the lord was owner of the soil, and therefore did not extend to open Lammas lands, the soil of which was in various owners, the occupiers intercommoning for a certain part of the year. The Grand Union Canal Co. V. Ashby, 30 Law J. Rep. (n.s.) Exch. 203; 6 Hurls. & N. 394. (B) Tolls; ISeqcalitt. A canal company was incorporated by a local and personal act, which provided that the rates charged by the company of proprietors for the car- riage of coal and other merchandise should be equal throughout the whole length of the canal. By the 8 & 9 Vict. e. 28, the proprietors of any canal are allowed to alter the tolls, rates or duties granted to them upon the whole or any portion of the canals according to local circumstances, or the quantity of traffic, or otherwise as they may think fit. The act also provides that the tolls levied under its powers are to be charged equally to all persons and after the same rate, whether per mile or per ton per mile. The company having imposed a charge of a penny a ton per mile for all coal conveyed upon their canal, together with an additional rate of one half- penny a ton for all coal conveyed a less distance than five miles, — Held, that they might lawfully impose such charges on the plaintiffs, and at the same time charge only three farthings a ton per mile for coals conveyed by them for others over a distance less than five miles, such persons having agreed to secure to the defendants a fixed minimum of tolls. StricTc v. the Swansea Canal Co., 33 Law J. Rep. (n.s.) C.P. 240; 16 Com. B. Rep. N.S. 245. (A) Rights and Liabilities of Careibrs. (a) Conveyance of Passengers. (5) Conveyance and Care of Passengers'' Lug- gage. (c) Conveyance of Goods. (1) Ai-rangement with Carriei's Agent. (2) Special Contract limiting the Common Law Liability. (i) Effect of General Notice.^ _ (ii) Reasonableness of Conditions. (d) Conveyance of Goods within Carriers' Act, 11 Geo. 4.&1 Will. 4. c. fi8. s.l. (e) Conveyance of Dangerous Goods. (/) Conveyance of Live StocJc. (1) As Common Carriers and under fecial Limitations of Liability. (2) Declaration of Value. (g) Conveyance beyond their own Railway. Ifi) Delivery. (j) Right to distrain Goods for Tolls. (B) .Charges and Tbaffio Arrangements. (a) Undue Preference and Unequal Charges. (b) Allowance for Cost of Collection amd Delivery to Carriers. (c) Terminal Charges. (C) Damages ; Criterion of. CARRIER. [The term « lace " in the 11 Geo. 4. & 1 Win. 4. c. 68. not to include machine-made lace. — 28 & 29 Vict. c. 94 (the Carriers' Act Amendment Act, 1866).] (A) Rights and Liabilities of Carriers. (a) Conveyance of Passengers. The plaintiff took a ticket from the defendants from C to N ; the plaintiff, after waiting a longtime, was told by a porter that the train was late in con- sequence of an accident, and the train eventually arrived an hour and a half late. The consequence was that the plaintiff was late for the train at G, which would have carried him on to N, The train- bill was not put in, but only some correspondence in which the defendants repudiated their liability on the ground that by the train-bills they gave notice they would not be liable for the trains not keeping time : — Held, that there was no evidence of a cause of action. Hurst v. the Great Western Rail. Co., 34 Law J. Rep. (n.s.) C.P. 264 ; 19 Com. B. Eep. N.S. 310. A by-law of a. railway company ran thus; — "Each passenger booking his place will be fur- nished with a ticket, which he is to shew and deliver up when required to the guard, &c.," and " each passenger not producing or delivering up his ticket when required, is hereby subjected to a penalty not exceeding 40s.": — Held, that under this by-law holders of annual tickets for travelling on the line are bound to produce their tickets to the railway officers as much as ordinary passengers. Woodard v. the Eastern Counties Rail. Co., 30 Law J. Kep. (n.s.) M.C. 196. (b) Conveyance and Care of Passengers' Luggage. A railway passenger, with knowledge that the railway company, though allowing each passenger to carry free of charge a certain amount of luggage, required all merchandise carried to be paid for, took with him, as if it was personal luggage, a ease of merchandise, and did not pay for it as such : — Held, that no contract whatever touching the same arose between him and the company, and therefore CARRIER; (A) Rights and Liabilities of Carriers. 81 on its being lost he was not entitled to recover the value of it from the company. The Belfmt , to secure money advanced, and with which money the action brought by B against the plaintiff was settled. Subsequently, the directors resolved that the bonds should be redeemed, and that the expenses incurred by the chairman should be paid by the company out of the first moneys in their hands: — Held, in an action brought by the plaintiff upon one of these bonds, that it was illegal, and that the plaintiff could not recover. Chambers v. t7ie Manchester and Milford Bail. Co., 33 Law J. Rep. (n.s.) Q.B. 268; 5 Best & S. 588. (e) Acts of their Servants. A railway company, though a corporation, is liable in an action for false imprisonment, if the act be committed by the authority of the company ; the authority need not be under seal ; but it lies on the plaintiff to give evidence justifying the jury in finding that the company's servants who imprisoned him, or some of them, had authority from the company to do so. Goff V. the Great Northern Rail. Co., 30 Law J. Rep. (n.s.) Q.B. 148; 3 E. & E. 672. The plaintiff, having taken a return-ticket from the London station of the defendants' railway, at the end of the return journey gave up an old half-ticket, which he had put in his pocket by mistake for the right one, whereupon the ticket-collector took the plaintiff to the ticket-oiBce, where he explained how the mistake had occurred ; he then went with the collector to the inspector of police in the defendants' station ; and they all went together to the super- intendent of the line, who, after hearing the matter, said, " I think you had better take him, but you had better first obtain the concurrence of the secretary"; the inspector then left, and on his return he directed a police constable to take the plaintiff to the public police station, and charge him with having travelled on the defendants' line without having paid his fare, with intent to avoid paying it. The plaintiff was accordingly taken to the station and before a magis- trate ; and on the hearing the plaintiff's story proved true, and the complaint was dismissed. The police inspector and constable were in the pay of the defendants. The plaintiff having brought an action against the defendants for false imprisonment, — Held, that, inasmuch as the 8 Vict. c. 20. (by ss. 103, 104.) imposes a penalty on any person travelling on a railway without having paid his fare, with intent to avoid the payment thereof, and em- powers all officers apd servants, on behalf of the company, to apprehend such person until he can conveniently be taken before a Justice, it might reasonably be assumed that a railway company carrying passengers would, in the ordinary course of business, have on the spot officers with authority to determine without delay whether the company's ser- vants should, or should not, on the company's behalf, apprehend a passenger accused of this offence ; and that the fact of all the subordinate servants of the company referring to the superintendent of the line as the superior authority, was sufficient evidence that he was an oflScer having authority from the company to act for them in the matter ; and that the defen- dants were, therefore, liable for the false imprisonment directed by him. Ibid. (/) As to Mines. A conveyance of a strip of land was made to a railway company in 1834 under an act of parliament, which provided by one section, that all coal or other mineral should be deemed to be excepted out of any purchase of lands by the company and might be worked by the owners and lessees thereof, " so that no damage or obstruction be done or thereby occur to or in such railway or other works"; and in case of damage reparation was to be made by tl«e owners or lessees. And by another section, that whenever the workings should approach within twenty yards of any masonry or building belonging to the com- pany notice thereof should be given to them, and they might deliver a declaration requiring the mine- rals under such masonry or building to be reserved for their protection, and in that case they should purchase the same, and in case they should not deliver such declaration that the owners or lessees might work the minerals under the said masonry or buildings, in the usual and ordinary manner of work- ing mines, doing no avoidable damage. The land was taken for the purpose of building thereon a bridge of great weight, which was subsequently built by the company. At the time of the purchase there was beneath the land, and a large tract of adjoining land belonging to the vendor, an old mine COMPANY — Railway and Incorporated; (D) Bt-laws. 99 which had been accidentally flooded and had long previously been full of water. In 1859 a lessee, deriving title under the vendor, threatened to drain the mine and renew the workings : — Held, that in addition to the special protection afforded by the act in respect of workings within twenty yards' dis- tance of any masonry or building, the railway com- pany was entitled, by way of necessary incident to the grant of the land, to such lateral support from the adjacent land of the vendor not situate within the twenty yards as might be necessary to uphold the bridge; and that the lessee was properly restrained from working minerals under the adjacent land not the property of the company, and not within the limits of twenty yards, so as to affect the stability of the bridge. EUiot v. the Nvrth-Easlem Bail. Co. (House of Lords), 32 Law J. Rep. (n.s.) Chanc. 402 ; 10 H.L..Cas. 333. Held also, that the circumstance that the con- veyance of the land was compulsory and not volun- tary, could not, in the absence of any special enactment, affect the construction of the convey- ance, nor prevent it from passing to the company the necessary right of support as an ordinary legal incident Ibid. Held, however, that although the water might afford additional support to the surface, the com- pany had no right to speculate on the continuance of such an accidental circumstance, and that the lessee ought not to be restrained from withdrawing the water from the spaces left in the old workings, if such effect should be produced by working the colliery in a proper manner. Ibid. In cases like the foregoing, it being impracticable to define beforehand the limits within which the workings ought to be restrained, an injunction is properly expressed in general terms against working 80 as to produce the particular evil apprehended. Ibid. A railway company is responsible for injuries sus- tained by reason of water escaping from a stream in flood-time, or collected from rain falling on the rail- way, and flowing along a cutting of the railway and percolating through the substratum into mines beneath, although such mines had not been worked at the time of the formation of the railway. Bagnall v. the London omd North- Western Bail, bo., 31 Law J. Rep. (n.s.) Exch. 121; 7 Hurls. & N. 423. The defendants, under parliamentary powers, pur- chased the surface of the plaintiffs' colliery, and carried their railway over it by means of a cutting which extended beyond the limits of the colliery. At the time when the railway was made no mines had been worked underneath it. The plaintiffs gave the defendants notice of their works approaching the railway, but the defendants did not treat for the purchase. The original surface of the soil over the railway was impervious to water, but the removal of the clay by the railway cutting exposed a pervious stratum subject to cracks and fissures. In conse- quence of the cutting, water from a brook crossed by the railway in flood-time flowed along the cutting over the plaintiffs' mines, and the side drains being insufficient to carry it off, the water flowed over the pervious surface and so escaped into and flooded the plaintiffs' mines. The rain water descending upon the railway and the sides of the cutting was in like manner carried along the railway, and over and into the mines. The defendants' works were in coDformity with their local act and deposited plans and sections: — Held, that the defendants were liable for the damage occasioned by such flooding of the mines. Ibid. Held, also, that such damage was the subject of an action, and not the subject of compensation under the compensation clauses of the Railway Act. Ibid. (C) Seareholdebs, Liability of. The charter incorporating a trading company directed that the capital or stock should be divided into shares, and that the proprietors for the time being of stock in the corporation should execute a deed of co-partnership and settlement, whereby the capital should be divided into shares numbered in regular succession, and whereby they should enter into covenant forpayment of the amounts subscribed. The promoters of the company previous to the charter being granted put the defendant's name down as an allottee for fifty shares, and sent him an allotment letter informing him thereof, and requir- ing payment of a deposit, and adding, that on his execution of the deed prepared in conformity with the charter, he would be entitled to fifty certificates for shares. The defendant paid the deposit, and afterwards several calls. The deed, which was exe- cuted by many shareholders, but not by the defen- dant, contained provisions that the shares should be numbered in regular succession, and be each dis- tinguished by a separate number, — that every per- son who should have subscribed the prescribed sum or upwards to the capital of the corporation, or who should otherwise have become entitled to a share of the same, and whose name should have been entered on the register of shareholders, should be deemed a shareholder : that the corporation should keep a register of shareholders, in which (among other things) should be entered the number of shares each person held, distinguishing each share by its number : that certificates of ownership should be delivered on application to each shareholder, speci- fying the shares to which he was entitled. A register of shares was kept, in which the defendant was entered as the holder of fifty shares, but the shares were not numbered or specified. The defendant having refused to pay a subsequent call, the com- pany sued him, charging him as a shareholder or holder of fifty shares indebted in respect of calls by virtue of the deed of settlement : — Held (affirming the decision of the Court below, 30 Law J. Rep. (h.s.) Q.B. 114 ; 1 Best & S. 693), that he was not liable to be so sued, as he had not executed the deed ; although probably an action might have been maintained against him framed on his agreement to become a shareholder and execute the deed. The Irish Peat Company v. PhiUvpa (Ex. Ch.), 30 Law J. Rep. (n.s.) Q.B. 363 ; 1 Best & S. 629. Quwre — Whether the omission in the register to number and specify the shares would have defeated the action had it been otherwise maintainable. Ibid. (D) Bt-laws. By the charter of the Saddlers' Company, the wardens and assistants were empowered to elecil' assistants from the freemen, and to remove any for ill conduct or other reasonable cause, and to make such by-laws as should seem to them salutary and 100 COMPANY— /o»n/-«oc*. necessary for the good government of the body in general and its various officers ; no qualification for an assistant, beyond that of being a freeman, was imposed by the charter itself, but certain oaths were to be taken after election and before admission, and any election contrary to the directions or restrictions of the charter was declared void. An assistant was eligible to become warden, which was an office of trust, the holder of it having the custody and dis- posal of the corporate funds. A by-law was duly made, *' that no person who has been a bankrupt, or become otherwise insolvent, shall hereafter be ad- mitted a member of the court of assistants, unless it be proved to the satisfaction of the court that such person, after his bankruptcy or insolvency, has paid his creditors in full, or shall have established a fair and honourable character for the seven years sub- sequent." D, being otherwise qualified, but being in insolvent circumstances, and unable to pay his cre- ditors 20s. in the pound, was elected an assistant, and after his election, of which he was not aware, but before his admission, he made to the agent of the wardens and assistants a statement, false to his own knowledge, that he was solvent; he was then ad- mitted, and exercised the office of assistant. D. was afterwards adjudged a bankrupt, and this and his false statement having come to the knowledge of the wardens and assistants, they, at a meeting duly held, but of which D. had no notice or knowledge, ex- pelled him from the office. D, having obtained a mandamus to restore him, the above facts appeared on the record; — Held, on error, by the House of Lords, that the by-law was valid ; that its validity depended on the meaning of the words " or become otherwise insolvent," and that these words must be construed to mean notorious or avowed insolvency, such as stopping payment or compounding with cre- ditors, and not a mere inability of a person to pay his debts in full ; and also, that as D was admitted to the office of assistant without such fraud as ren- dered his admission void, he could not be legally removed without being heard in his defence ; and that he was entitled to a peremptory mandamus, — affirming the decision of the Court of Queen's Bench, and reversing that of the Exchequer Cham- ber (80 Law J. Rep. (n.s.) aB. 186 ; 3 E. & E. 72). B. V. the Saddlers' Co. (House of Lords), 32 Law J. Rep. (n.3.) Q.B. 337; 10 H.L. Cas. 404. 9.— JOINT-STOCK COMPANIES. (A) MEMOBANDnM AND ARTICLES OF ASSOOIATIOU. Where the memorandum of association em. powered the directors without further authority from the shareholders to pay a specific sum for the costs and expenses of the promoters, — Held, on demurrer, that a payment without taxation was not improper. Croskey v. ilie Bank of Wales, 4 Giff. 314. Where the rules of a company provided that any member who should directly or indirectly en- gage in any merchants' or brokers' work, which was charged to the company, or if it were offered him by the principal or servants, should be fined 501. for such work taken, and that no member should leave without giving the agent six months' notice, the plaintiff, who was a member, gave notice on the 27th of June, 1859, that he should leave on the 30th of June, but before that day entered into an en- gagement with a merchant, and within six months entered into other agreements, — Held, that the plaintifl'was liable to be fined for the engagement made prior to the 30th of June, 1859, but not for those made subsequently. Branclcer v. Solerla, 3 Giff. 276. One clause in the articles of association of a com- pany provided that an extraordinary special meeting might authorize the borrowing of such sum or sums of money on such terms as they might think fit. Another clause authorized the directors to borrow any sum of money not exceeding 10,000^. unless authorized to borrow a larger sum by a general meet- ing:— Held, that the latter clause was not restricted by the former, and that the borrowing of SOfiOOl. by the directors was sufficiently authorized by a re- solution of an ordinarv general meeting. In re the StrandMusicSallCo. (Lim.),3 De Gex, J.&.S. 147. The subscribers to the memorandum of association of a joint-stock company (limited), registered accord- ing to the requirements of the statute 19 & 20 Vict. c. 47, no articles of association being annexed to the memorandum, become under the provisions of the statute, directors of the company till the first general meeting of the shareholders has been held pursuant to the regulations for the management of the com- pany contained in Table B. to that act annexed. JEales V. the Cumierland Black-lead Mining Co. (Urn.), 30 Law J. Rep. (n.s.) Exch. 141 ; 6 Hurls. & N. 431. An appointment by such directors of one of their own number to a salaried office under the company, is valid under the statute, and not void or illegal at common law. Ibid. The powers of such directors, during their period of office, are in all respects the same as those of directors appointed at a general meeting. Ibid. Per BramweU, B. — Though such original direc- tors have power to appoint one of themselves to a salaried office in the company, the appointment may be of a nature to render all the parties to it liable for a breach of trust. Ibid. The plaintiff, an original subscriber to the memo- randum of association, and as such a director of the Cumberland Black-lead Mining Co. (Limited), was appointed by the other subscriberB(before the period for holding the first general meeting of shareholders according to the requirements of " the Joint-Stock Companies' Act, 1856," had arrived) the manager of the mine, for the working of which the company had been formed, at a yearly salary, the appoint- ment to continue for a year, subject to the approval of the first general meeting. This appointment was not confirmed at the first general meeting, and the plaintiff afterwards sued the company for his salary up to the time of the action. The jury having found a verdict for him for a year's salary, the Court dis- charged a rule obtained to set this verdict aside. Ibid. (B) Powers, Duties, and Liabilities. A company registered under the Joint-Stock Companies' Act, 1856, was established for the pur- pose of accepting a transfer of, and carrying into effect, the undertaking of an existing railway com- pany. Under one of the acts of the provincial legis- lature relating to this company, grants of land were COMTANY— Joint-Stock; (B) Powers, Duties, &c. 101 made sufficient for the construction of a portion of the railway, and a power was reserved to the legis- lature of re-entering into possession of such lands, supposing the railway was not completed within ten years, and a further grant of lands was to be made on completion of the said portion of the railway. By another act grants of land adjoining the railway were authorized to be made to the company to the extent of 10,000 acres for every 10,000/. expended by the company in making the railway, and the act was to continue in force for ten years. By another act the provision in the first-mentioned act, as to the completion of the said portion of the railway within ten ye^rs, was repealed, and in lieu thereof it was enacted that if the said railway should not be com- pleted within four years from the date of that act, all and every the grants of land conferred by the several acts relating to the company should be null and void, and the lands should revert to, and revest in. Her Majesty as if no grants had been made; and it was further enacted that the several grants made to or for the benefit of the company, were thereby confirmed and declared valid to all intents and purposes. The articles of association of the new company recited the above-mentioned acts, and pro- vided that certain class A shares should be entitled to a certificate for an allotment and appropriation of four acres of the land of the company to each share. The directors in London issued Reports, on the faith of which the respondent applied at the office of the company, and was informed by the secretary that the class A shares were preference shares, entitling the holder to an allotment of four acres of land under the grants from the provincial government. Such Reports also contained state- ments implying that the company had an indefeas- ible title to the lands granted. The respondent became the purchaser of a number of the class A shares. He afterwards filed a bill to set aside his contract on the ground that he had been induced by misrepresentations to take the shares, such misre- presentations consisting, amongst others, in the statement that the company had an indefeasible title in the lands granted: — Held (reversing the decision of the Lords Justices), that there were no misrepresentations on the part of the company, and that as to their title to the lands granted to them, such grants of land were made for the encourage- ment of the company, and therefore, after they had become entitled thereto ^ that they were made for a consideration, which, in the view of the legislature, must be taken to have been already paid by the company when they had expended so much money upon the works, and that the company had there- fore an indefeasible title to the lands granted. The New Brunswick and Oanada Sail, and Zand Co. (Lim.) V. Gonybeare (House of Lords), 31 Law J. Rep. (U.S.) Chanc. 297; 9 H.L. Cas. 711. If Reports are made to the shareholders of a company by their directors and the Reports are adopted by the shareholders, and afterwards indus- triously circulated, representations contained in those Reports must be taken to be representations made with the authority of the company, and there- fore binding the company. • And if those Reports having been industriously circulated be clearly shewn to have been the proximate and immediate cause of shares having been bought from the company, the company cannot be permitted to retain the benefit of the contract and keep the purchase-money that has been paid. Representations made by the secre- tary to a person in a general conversation, without a view to any definite statement by that person that he wants to purchase shares, are not binding on the company. Ibid. If, however, an incorporated company acting by an agent induces a person to enter into a contract for the benefit of the company, that company can no more repudiate their fraudulent agent than an individual can repudiate his; consequently the com- pany are bound by the misrepresentations of their agent. Ibid. Misrepresentation entitling to relief must be a misrepresentation of fact, and not merely a con- clusion of opinion. Ibid. A person having taken shares in a joint-stock company, must be considered to have actually executed the articles of association of such company, and is therefore .fixed with notice of its contents. Ibid. When a case is constituted of fraud, it should be most accurately and fully stated. A mere general charge that something has been done by or obtained from a party under the influence of fraud, is not Bufiicient : it must be shewn in what it consists, and how it has been effected. Ibid. When a charge is made involving the imputation of fraudulent misrepresentation or fraudulent con- cealment, if that charge fails, it ought to fail with the ordinary penalty of the Court, directing the party who makes it without ground, to indemnify his antagonist in costs. Ibid. A counsel cannot be heard to argue his own case with another counsel: he must either appear in person or by counsel. Ibid. Certain stock of a railway company was standing in the books of the company in the names of two persons, T and B. B, by a transfer executed by himself, and to which he forged the signature of T, transferred the stock to a third person, whose name was substituted upon the register for the names of B and T. T died soon afterwards: — -Held (affirming the decision of the Master of the Rolls), that the personal representative of T had a legal right to call on the company to replace the stock, though the right of action at law was gone. The Midland Sail. Co. V. Taylor (House of Lords), 31 Law J. Rep. (s.s.) Chanc. 336; 8 H.L. Cas. 761. The defendants proposed turning an inclined road or slipway, leading from the town to the sea-shore, from the north-east to the north-west. It appeared that this, so far from producing an injury, would makea more convenient landing-place: — Held, that, whether the defendants were authorized or not, the Court would not interfere in the matter. The Syde Commissioners v. the Isle of Wight Ferry Co., 30 Beav. 616. Money borrowed for a company and bona fide applied for its benefit, held recoverable though the directors had no borrowing powers. Scare's case, in re the Electric Telegraph Co. of Ireland, 30 Beav. 225. A policy-holder, by whose policy the funds of a company were made liable to pay the sum insured, and certain shares of profit by way of bonus, — Held, entitled to an injunction to restrain the company 102 COUP AfiY— Joint-Stoclc ; (C) Directors. &om transferring its business and assets to another company, contrary to the provisions of the deed of settlement, and without making provision out of its own assets for payment of the plaintiff's policy. Reams v. Leaf; Aldelert v. Kea/rns, 1 Hem. & M. 681. Where one insurance company, A, transferred all its business, property, effects and liabilities to another company, B, on the terms of A share- holders being indemnified, on a bill by A for specific performance of the agreement, the Court decreed such indemnity, and the other company which was ordered to be wound up, having by its official manager filed a cross-bill alleging fraud and misre- presentation, and that such agreement was vUra vires, the second company, B, having had the benefit of the agreement, was held not to be entitled to object that the agreement was ultra vires and im- properly entered into by the managing body, and the cross-bill was dismissed. The Anglo- Australian Life Assur. Co. V. the British Provident Life and Fire Society, 3 Giff. 521. The rule that notice to one partner in an ordi- nary trading partnership is notice to all the partners does not apply to a joint-stock company. In re Carew's Estate Act (No. 2), 31 Beav. 39. By the deed of settlement of a joint-stock com- pany established under the 7 & 8 Vict. c. 110, the directors were empowered to issue bills of exchange and promissory notes, but such bills and notes were only to bind the shareholders to the extent of their interests in the company. The directors, by deed- poll under the common seal of the company, and signed by three directors, appointed an agent in Canada, and empowered him to draw bills of ex- change upon the company. To discharge claims against the company in Canada, the agent drew and gave there two bills of exchange, such bills contain- ing no notice of any restricted liability. Upon the company being wound up, the holders of these bills put in claims for the amount, together with interest and damages calculated according to certain statutes of Canada : — Held, that the appointment of the agent was valid, and that the bills in question were well drawn by him so as to bind the company, not- withstanding the 45th section of the act, and not- withstanding also the provisions in the deed of set- tlement for limiting the liability of the shareholders ; and accordingly that the holders of the bills were entitled to prove under the winding-up against the company. In re the State Fire Inswr. Co., ex parte Meredith's and Convers's Claims, 32 Law J. Rep. (n.s.) Chanc. 300. Held, also, that the proof being against the com- pany as the virtual drawers, the claimants were en- titled to the interest and damages given by the law of Canada, where the bills were drawn. Ibid. A joint-stock company, established with limited liability, under the Companies' Act, 1862, may law- fully commence business and exercise their borrow- ing powers before the whole of the nominal capital has been subscribed ; and a representation by pro- spectus issued on behalf of a company, that the capi- tal consists of a given sum, in shares of a certain amount, does not imply that the whole capital named is to be raised at once, and that the borrowing powers are to be suspended until the whole of such capital has been subscribed. M'DougaU v. the Jersey Imperial Hotel Co. (Urn.), 34 Law J. Eep. (n.s.) Chanc. 28 ; 2 Hem. & M. 628. The payment to shareholders before any profits have been made of interest on the amount of capital paid up is illegal, and will be restrained by injunc- tion. Ibid. The enactments of the Companies' Clauses Con- solidation Act, 1845, prescribing the mode in which contracts may be entered into on behalf of a com- pany are affirmative only, and do not preclude the enforcement against a company of the ordinary equity based on part performance. Wilson v. the West Hartlepool Ha/rbour and Sail. Co., 34 Law J, Bep. (n.s.) Chanc. 241 ; 2 De Gex, J. & S. 475. A contract made between the projector and the directors of a joint-stock company provisionally registered, but not in terms made conditional on the completion of the company, is not binding upon the subsequently completely registered company, al- though ratified and confirmed by the deed of settle- ment. Ounn V. the London and Lancashire Fire Insur. Co., 12 Com. B. Rep. N.S. 694. (C) Directors. (a) Power to contract. An agreement was entered into between Pooley and the London and County Company, represented by Betteley, one of their directors, whereby Pooley agreed to sell, and Betteley to purchase, certain bonds in consideration of the sum of 4,000Z., and debenture notes of the company for 2,500?., and also 3,600 shares in the company, on which \l. should be considered to have been paid. Betteley then took the bonds at 5,1501. (their market value), and, after paying the 4,000i. to Pooley, paid over the remainder for the use of the company. Pooley sold his interest in the debenture notes to Wood and Brown, who, upon the winding-up of the company, brought in their claims : — Held, that the whole transaction was invalid and must be set aside, it being neither a borrowing nor a purchasing under the powers given to the directors by their deed of settle- ment. In re the London amd County Assur. Co., Wood's Claim and Brown's Claim, 30 Law J. Eep. (n.s.) Chanc. 373. Knowledge of a particular fact relating to the accounts by one director of a banking company is not notice to the company where that director had no voice in the management of the accounts, and the money transactions of the company were conducted exclusively by a manager under three directors, of whom the director possessing the knowledge was not one. Carew's Estate Act (No. 2), 31 Beav. 39. When a director is about to commit a fraud, it is to be presumed that he will not disclose the circum- stance to his colleagues. Ibid. Colonel W fraudulently obtained possession of acceptances of C, and he got them discounted and carried to his account by a banking company, to whom he was greatly indebted, and of which he was a director and local manager : — Held, under the cir- cumstances, that the bank had notice, and could not be considered Jowa^de owners. Ibid. The directors of a railway company are not jus- tified in acting on an old resolution, authorizing the issue of shares after the particular purpose for which the authority was given has ceased to be available, Fraser v. Whalley, 2 Hem. & M. 10. COMPANY— /o»B<-5', and an official liquidator was appointed, who sold pro- perty of the company by auction. On motion by the official liquidator to restrain a creditor from attach- ing the proceeds in the auctioneer's hands, — Held, that the advertisement, not having stated that an official liquidator was to be appointed, his appoint- ment was invalid, and the motion must be refused, with costs. In re the Stewrio Acid Co., 32 Law J. Rep. (n.s.) Chanc. 784. Upon a bill filed by the official manager of an unincorporated society representing a particular class of shareholders, against another class of shareholders, praying that the defendants might be declared liable to make good certain funds alleged to have been mis- applied, the Court held that such a suit could not be maintained. Ernest v. Weiss, 32 Law J. Rep. (n.s.) Chanc. 113. The Court also expressed an opinion that an official manager of an unincorporated company, that is, a company which has only been provisionally regis- tered, can under no circumstances bring an action, or institute a suit against any person, nor can any action or suit be instituted against such official manager. Ibid. A provisional official liquidator is not entitled to appear at the hearing of a winding-up petition. In re the General International Agency Co. (Lim.), 34 Law J. Rep. (n.s.) Chanc. 337. The creditors' representative is not as of right entitled to appear separately on an appeal ; and it appearing that he had no interest distinct from the official manager, the greater part of his costs were disallowed against the estate. Ex parte Cotterell, in re the National Assur. and Investment Assoc, (the Eanh of Deposit), 32 Law J. Rep. (n.s.) Chanc. 66. The creditors' representative has a right to appear on a contributory summons upon a winding-up and have his costs. In re the British Provident Life and Fire Assur. Soc. ( Orpen's case), 32 Law J. Rep. (n.s.) Chanc. 633. 'The deed of settlement of a registered joint-stock company provided that every general meeting, whe- ther ordinary or extraordinary, should be called by advertisement, and that such advertisement should express the object of such meeting or the business proposed to be transacted thereat, and that no other business should be transacted at an extraordinary general meeting than the business for which it should have been expressly called. The deed did not con- tain any provisions for the winding up of the com- pany : — Held, that liquidators for the winding up of the company, under the statutes 19 & 20 Vict. c. 47. and 20 & 21 Vict. c. 14. could not be appointed at a meeting convened for the purpose of proposing a resolution to wind up the company voluntarily ; and that it was immaterial that the company was estab- lished before the passing of the Winding-up Acts. The Anglo-Californicm, Qold Mining Co, v. Lewis, 30 Law J. Rep. (n.s.) Exch. 50 ; 6 Hurls. & N. 174. (E) Contributories ; Persons liable to be MADE Contributories, and Extent op their Liability. (a) Directors. The defendant, being a shareholder in a company conducted on the cost-book principle, in October, 1861, sold and transferred all his shares ; in the No- vember following, the company was registered under the Joint-Stock Companies' Acts, 1856, 1857 ; in COMPANY — Dissolution and Winding-up. 113 April, 1862, an order of the Vice Warden of the Stan- naries was made for winding up the company ; and under that order, in April, 1863, the defendant's name was put on the list of contributoriea to the company. In March, 1863, an action was commenced, by the plaintiff against the defendant, for goods sup- plied to the company between 1859 and 1861, while he held shares. On an application for a stay of pro- ceedings, on the ground that the action could not be brought without leave of the Court pursuant to the 6th section of the 21 & 22 Vict. c. 60,— Held, that the defendant was not within the protection of that section : for that neither was he nor had he been a member of the registered company, nor was the debt a debt of that company ; and that the fact of the Vice Warden having put the defendant on the list of contributories made no difference, as the act was ultra vires. Lanyom v. Smith, 32 Law J. Rep. (n.s.) Q.B. 212; 3 Best& S. 938. Qumre — If the company had been registered under 19 & 20 Vict. c. 47. and 20 & 21 Vict. c. 14? S, the local manager of a company, was asked by the general manager to become a director, the qualification for which was the holding 500 shares. 500 shares held by the manager as a trustee for the company were transferred to S by deed, which S also executed. He acted as director, but he was not registered as a shareholder, never received any notice of dividends, continued to be local manager, and never paid the price which was expressed in the deed of transfer to be paid for the shares, nor appeared to have been treated as a shareholder ; and the Court was satisfied on the evidence that he had never agreed to purchase the shares, but that they were transferred to him by order of the directors merely to qualify him for the directorship : — Held, that if the com- pany, which could not be bound by the transaction, elected to afHrm it, S was only a trustee for the com- pany, and so not a contributory : and that if they elected to disaffirm it, then, it not appearing that S was privy to the breach of duty on the part of the directors, it must be rescinded altogether, and that S therefore was not a contributory. In re Ike Waterloo Life, tSic. Assur. Co, (Saunders's case), 2 De Gex, J. & S. 101. On application by the official manager of a com- pany ordered to be wound up, the Court refused to put in the list of contributories or to declare liable to contribute to the debts of the company a pro- visional director and allottee of fifty shares, who had attended meetings and taken part in the proceed- ings, but had never signed the subscription contract. Jn re the Hereford amd Merthyr Tydvil Rail. Co. (Maitland's case), 3 Giff. 29. The deed of settlement of a joint-stock company provided for the division of the persons concerned in it into three classes : (1.) Those interested in the Mutual Investment or Depositors' Fund ; (2.) Those interested in the Mutual Assurance Fund ; (3.) Those interested in the General Fund. The deed also provided that the depositors or holdei's of the in- vestment stock (1.) were to have such interest not exceeding 51. per cent, as should be determined by the directors of the association ; and it gave the depositors any surplus profits on that stock. The de- positors or holders of that mutual investment stock (1.) paid their money over the counter of the com- pany, and received in return certificates of acknow- DiQEST, 1860—65. ledgment referring to the deed of settlement, and stating that the interest was payable lialf-yearly on the deposits so made. The prospectuses of the asso- ciation, and' an almanac issued by the directors also, referred to the rate of interest payable to the de- positors, and spoke of the profits to be realized by them on their deposits. Upon the question whether the depositors were to be put upon the list of con- tributories to the association, the Master of the Rolls decided that, as they were affected with notice of the contents of the deed, and entitled to receive interest on their deposits according to the profits of the con- cern, they were partners in it, and as such to be put on the list of contributories, but without prejudice to any ulterior questions of liability inter se; also, that as to one of the depositors (Mrs. Davies) who had obtained a judgment in an action against the asso- ciation, execution in the action must be stayed; also, that if a person authorizes a director of a company to apply to the board of it to elect him as a director, he must be taken to authorize the directors who elect him to do all that is legal and necessary to constitute him a director of the company, and he cannot afterwards be heard effectually to say that he did not authorize them to take the proper course for the purpose. The Marquis of A was therefore a contributory, though the extent of his liability was not determined. On appeal by Mrs. Davies and the Marquis of A respectively from the above decisions, the Lords Justices held, reversing the order of the Master of the Rolls, that (as to Mrs. Davies) the prospectus contained nothing to shew that the " in- vestment" contemplated was anything more than an ordinary deposit with the bank, and could not give the depositor any claim to a share of the profits, and her name must be removed from the list ; and further, that the fact that the prospectus which was in Mrs. D's hands mentioned the special act of par- liament of the company, which act referred to the deed of settlement, was not notice to her of the con- tents of the deed. She must also be allowed to pro- ceed with her action against the company. Their Lordships (as to the case of the Marquis of A) con- sidered that his consent to become a director was not a consent to accept the necessary qualification for that office under the deed ; that there was no implied agreement by him to become the holder of the stock ; that, as he had no actual notice of the deed, so he could not, under the circumstances, be taken to have had constructive notice thereof, and that the consent to become a director did not impose upiin him the obligation of accepting any stock ; and, generally, that the mere fact of filling the office of a director did not make such director a con- tributory ; and their Lordships decided, upon the same grounds as governed Mrs. D's case, that the Marquis of A was not a contributory in respect of the 105i investment stock, and his name was accordingly removed from the list. In re the National Assur. and Investment Assoc, (the Bank of Deposit); Ex parte Davies; Ex parte the Marqvds of Abercom, 31 Law J. Rep. (n.s.) Chanc. 828. A company was in process of being wound up. By the deed of settlement of the company it was provided that no person should be or continue a director unless he was the holder of a particular amount of stock. The company was managed by a board of directors at the chief office in London, and Q 114 COMPANY — Dissolution and Winding-ltp. by boards in various towns, in the latter of which local agents or deputies, called provincial directors, had conferred upon them limited authority. C was one of these provincial directors, but held no shares in the company, and, on a question of his liability to be placed upon the list of contributories, — Held, that the clause requiring the qualification for direc- tors did not apply to those who held the office of provincial directors, and that C was not liable to be placed on the list of contributories. Ex parte Cot- terell, in re the National Assur. and Investment Assoc, (the Bank of Deposit), 32 Law J. Rep. (u.s.) Chanc. 66. On the 10th of August, 1860, at a meeting of five persons, held before the formation of and for the purpose of forming a joint-stock company, this reso- lution was passed : " Each of the gentlemen present agrees to hold 100 shares in the company, and also to execute the articles and memorandum of asso- ciation when ready, and act as directors of the com- pany." At a meeting held on the 14th of August the draft articles of association were submitted to the five gentlemen and approved, and ordered to be en- grossed for execution at the next meeting. On the 25th they all signed the memorandum of association for twenty-one shares each, and executed the articles of association. By one of the articles the qualifica- tion of directors was fixed at 100 shares, and by another, it was provided that until directors were appointed, the subscribers thereto should be deemed to be directors. The company was afterwards wound upin Bankruptcy: — Held (affirminga decision of one of the Commissioners), per the ior5 Justice Turner, that by the resolution of the 10th of August and the articles of association taken together, and per the Lord Justice Knight Bruce, that by the effect of the resolution and articles and of the proceedings in January, 1861, reported 32 Law J. Rep. (w.s.) Chanc. pages 57, 58, the five gentlemen were con- tributories in respect of 100 shares each, in which number the twenty-one shares for which they had subscribed the memorandum of association should be included. Ex pourte Currie and others, im re ike Great Northern and Midland Coal Co, (Lim.) (Second case), 32 Law J. Rep. (n.s.) Chanc. 421. (5) Registered Shareholders. A person's name having been improperly placed on the register of shareholders in a public company was, on the winding-up of the company, placed by the Commissioner on the list of contributories. On appeal, Held, that the name being on the register, the Commissioner could not do otherwise than place it on the list of contributories. Ex parte Fox, in re the Moseley Green Coal and CoJce Co. (Lim.), 32 Law J. Rep. (n.s.) Bankr. 67. (c) Holders of Paid-vp Shares. Shares in a projected company, with limited liability, were allotted in payment of the purchase- money of property on which the intended company was about to carry on its business, and were accepted and treated by the vendor of such property as paid-up shares, and he afterwards transferred to each of the directors of the company 100 of them. One of the Commissioners of Bankruptcy in winding-up the company placed the names of each of these directors on the list of contributories, and made a call upon them. On appeal, it was held, that, as the shares had been allotted to a stranger as paid-up shares, they must be so considered, and the direc- tors' names be removed from the list in respect to them. Ex parte Currie and others, in re the Great Northern and Midland Coal Co. (Lim.), 32 Law J. Rep. (n.s.) Chanc. 67. (d) Applicants for Shares. A party who applies for shares and says, " which I hereby accept," and pays the deposit, if he writes before the allotment is made, saying he withdraws, and desires to cancel his application, is not a con- tributory. Ex parte Graham, in re the Cardiff and Caerphilly Iron Co. (Lim.), and in re the Joint- Stock Companies^ Acts, 1856 and 1857, and in re Gledhill, 30 Law J. Rep. (n.s.) Chanc. 861 ; 30 Law J. Rep. (n.s.) Bankr. 42. A filled up a blank form of application, by which he agreed to accept a certain number of shares in a company, or any less number which might be allotted to him, and he paid a deposit, for which he received a banker*8 receipt. No shares were ever allotted ; but he never made any formal claim for repayment of his deposit, which the company used. The com- pany was wound up before it had commenced its intended operations, and A was placed by the Master of the Rolls on the list of contributories. But, on appeal, — Held, by the Lords Justices, that the con- tract was only to accept shares when an allotment of them should have been made, and that until allot- ment there was no complete contract, and conse- quently that A was not a contributory. In re the Adelphi Hotel Co. (Lim.), (Best's case), 34 Law J. Rep. (n.s.) Chanc. 523 ; 2 De Gex, J. & S. 650. A B agreed, verbally, to take 100 shares in a limited company, paying 11. per share as deposit, and stipulating for the return of the lOOZ. if he djd not get the shares in a few days. By the terms of the prospectus for launching the company, 2Z. per share was payable upon allotment, in addition to the deposit. The shares were allotted in a few days, but no notice of allotment was given to A B, who, on his part, did not apply for the shares. Shortly after the company became defunct: — Held, affirm- ing a decision of the Master of the Rolls ("the Lord Justice Knight Bruce hasitante), that the contract to accept the shares became complete on allotment ; that it was the duty of A B to have applied for the shares and paid the 2Z. per share ; that neither his default in this respect, nor the omission by the com- pany to give notice of the allotment, exonerated him ; and, consequently, that A B was liable as a contributory. Ex parte Bloxam, in re the New Theatre Co. (Lim.), 33 Law J. Rep. (n.s.) Chanc. 674 ; 33 Beav. 529. A person accepting shares in a company, though intending to do so as agent only for another person, will be personally liable in respect thereof, unless he state at the time of acceptance that he accepts them only as agent. Ex parte Bird; ex parte the Southampton, Isle of Wight cund Portsmouth Im- proved Steamboat Co. (Lim.); in re the Jovnt-Stoclc Companies^ Acts, 1856 and 1867, 33 Law J. Rep. (n.s.) Bankr. 49. A B, who was a shareholder in and director of a company, signed an undertaking to take fifty addi- tional shares in the company, intending at the time COMPANY — Dissolution and Winding-up. 115 (but not so stating) to take tliem on behalf of a land- owner for whom he was agent, and who was largely interested in the operations of the company. The landowner subsequently took 100 additional shares in his own name, and, as A B contended, in satisfac- tion of the fifty shares agreed to be taken by him. The company was afterwards wound up; — Held, that in the absence of notice given by A B, at the time of signature, that he signed the undertaking as agent only, he must remain on the list of contributoties in respect of the fifty shares. Ibid. (e) Persons who have taken Shares upon Conditions. C executed the deed of settlement of a company which provided that no person should be entitled to the rights of a proprietor who should not have been previously accepted as such by the directors ; that no persons purchasingj shares from the directors should be considered approved by the board as a proprietor until he should have paid down the price, and that upon his making such payment the board should cause his name to be entered in the register of shareholders as a proprietor ; that every person who should subscribe for or take or purchase or acquire any shares should, from the time of the entry or alteration in the register as a proprietor, be so considered ; that every entry or alteration in the register should, as between the company and the last proprietor, be binding ; and that the register should, as between the company and every person claiming to be a proprietor, be conclusive evidence on behalf of the company to shew whether he was a proprietor. On an application of C to be removed from the list of contributories, it appeared that the managing director, S, had induced C to execute the deed on an agreement that he should be appointed one of the medical officers, and should not be removed except for misconduct. It further appeared that after a correspondence as to this stipulation, C insisted that his name should be erased from the list of shareholders and his subscription cancelled. S finally engaged that the shares should be treated as forfeited, and assured C that the company would treat his signature to a deed of settlement as a nullity. No entry relating to this transaction appeared in the company's books, except as entry in theminutesof a meeting of the directors after the execution of the deed to the effect that 300 shares were allotted to C ; who, however, never made, nor was required to make, any payment in respect of deposit or otherwise, nor re- ceived any communication whateverfrom thecompany until after an order had been made for winding it up: — Held, first, that the contract made between S and C, even if binding in equity, which (semble) it was not, was not within the powers of the directors under the deed of settlement ; secondly, that C, notwithstand- ing his execution of the deed, never was a share- holder, nor had entered into a binding contract to become one ; thirdly, that if C was a shareholder, it was competent to an extraordinary board of directors to declare his shares forfeited ; and (semble) that that course would, under the circumstances of the case, have been assumed by the Court to have been taken, if it had been clear that C had ever become a shareholder under the deed. In re the British Provident Assur. Soc. (Colemam's case), 1 De 6ex, J. & S. 495. A, upon his appointment as agent to a limited assurance company, agreed to take shares upon the terms that the payment for them should be deducted from his commission as agent, and no deposit was ever paid by him upon them, but he was registered as the holder of the shares. The company, very soon after his appointment, dismissed him ; but, as he contended, wrongfully. On the winding up of the company, — Held, by the Lords Justices, reversing a decision of the Master of the Bolls to the contrary effect, that the company's cancellation of A's ap- pointment as agent, whether justifiable or not, could not operate as a cancellation of A's agreement to become a shareholder, and that (subject to any ques- tion of account as to payment for the shares) A was liable as a contributory. In re the Life Assoc, of England (Lirn. ) (Thomson's case), 34 Law J. Rep. (n.s.) Chanc. 625. If a person is induced to take shares on the faith of a promise by the promoters of a company, which promise is not kept, he is, nevertheless, a contribu- tory, his remedy being only against the persons who made the promise. In re the United Kingdom Ship- owning Co. (Felgate's case), 2 De Gex, J. & S. 457. (/) Persons who have taken Shares upon Misrepre- sentation. If a person be induced, by the false representa- tions of a company, to take shares, he cannot be rendered liable as a contributory ; but the repre- sentations must come from an actual_report put for- ward by the authority of the company, and not from the statements of directors' clerks or others. In re the Boyal British Bank (Frowd^s case), 30 Law J. Rep. (w.s.) Chanc, 322. The brokers, at Bristol, of a recently formed com- pany sent to B, who resided in that neighbourhood, a prospectus of the company, and told him that the London share list was closed, but that they had some shares of the company to dispose of, and that the shares were quoted in the market at a premium. The statement as to the closing of the share list was made on the authority of the secretary of the com- pany ; that as to the shares being at a premium, agreed with certain reports in the newspapers, of which the authorship was not traced. Both state- ments were untrue. B agreed to take 150 shares, paid the deposit, and received a scrip certificate ; but having discovered that three persons named as directors in the prospectus had no shares, that the London share list was not closed, and that there had been no sales of shares, he repudiated his shares and claimed a return of the deposit. The directors repaid the deposit and struck B's name off the share-register. By the articles of association, the cancellation of shares by the directors required the sanction of a general meeting ; but no meeting was held. B was never asked to pay any calls, and did not execute the deed of settlement. Six months after the repay- ment of the deposit to B the company was volun- tarily wound up : — Held, that B could not be made a contributory. In re the Life Assoc, of England (Lim.), ex parte Blake, 32 Law J. Rep, (n.s.) Chanc. 278 ; 34 Beav. 634. A company may be treated as having, qua com- pany, been guilty of fraudulent misrepresentation. Ibid. Certain reserved shares in a banking company were, in June, 1864, offered by the directors to the 116 COMPANY — Dissolution and Winding-up. existing shareholders, on the terms that the price of the shares was to be paid on the 1st of October then next, and that the shares would then be entitled to one quarter's dividend at the end of the year, but that, if paid before that time, interest at 5/. per cent, would be allowed. A, a shareholder, agreed in July, 1864, to take certain of the reserved shares ; and in August he paid for them in advance. The manager informed him that a certificate would be given for the shares on the 1st of October ; but, on the 19th of September the bank stopped payment. It was admitted that the directors had gravely misrepre- sented the financial position of the company in their annual report, adopted by a general meeting in February: — Held, affirming a decision of Vice Chan- cellor Kindersley (but dissentient the Lord Justice Knight Bruce), that the contract was to take the shares in jyrcesenti, and that A was a contributory in respect of the reserved shares agreed to be taken by him. In re the Leeds BanMng Co., ex parte Barrett, 34 Law J. Rep. (n.s.) Chanc. 658 ; 2 Dr. & S. 415 ; 3 De Gex, J. & S. 30. Held, also (per Vice Chancellor Kindersley), that A could not be relieved on account of misrepresenta- tions to which he was, as a shareholder, himself con- structively a party ; and (per Lord Justice Turn£r), that having regard to the lapse of time between the date of the report and the taking of the shares, the misrepresentations in the report could not be re- garded as the proximate cause of A taking the shares. Ibid. (jr) Own£rs of Shares standing in the Name of others. J C took 300 shares in a cost-book mining com- pany, and in order to increase the apparent number of shareholders, and thereby cause the mining scheme to be more favourably regarded in the share-market, caused 100 of them to be transferred into the name of A, and 100 to be transferred into the name of B, who, notwithstanding the trans- fers, neither attended meetings nor paid calls, nor took any part in the affairs of the company: — Held, that having regard to the absence of any hona fide trusteeship on the part of A and B, and to the ex- tended definition of the word " contributorv " in the 200th section of the Companies' Act, 1862"(25 & 26 Vict. c. 89), J C was properly inserted on the list of contributories in respect of the whole 300 shares. Th£ Wheal Emily Mining Co. ( Cox's case), 33 Law J. Rep. (n.s.) Chanc. 145. B being applied to by C to allow shares in a joint- stock company to be taken in his name, consented on condition that he should not be liable to any demands in respect thereof, and this arrangement was known to the directors, who were well aware that the deposit had been paid by C, and always treated C as the real owner of the shares. By a subsequent arrangement between the directors and C, but which was not within the powers of the directors, nor con- firmed by the company, it was agreed that these shares should be transferred into C's name, and, accordingly, the secretary was instructed to substi- tute the name of C for that of B as the holder of the shares. The secretary made the alteration in the share-ledger, but B's name was not removed from the register of shareholders. The company was after- wards ordered to be wound up in Bankruptcy, and B'b name was inserted in the list of contributories. Upon an application by B in Chancery that his name might be removed from the register of share- holders, coupled with an appeal from the order placing him on the list of contributories, — Held, by the Lord Chancellor, that whatever might be the equities as between B and C, the company had a right to retain B as a contributory, and the applica- tion and appeal were dismissed, notwithstanding the submission of C to have his own name substituted for that of B. Bxparte Barrett, im re the Moseley Green Coal and Coke Co., 33 Law J.Rep.(N.s.)Chanc. 617. (h) Trustees and Executors. The liability of a trustee as a contributory will not be limited to the extent of the trust estate. In re the Phcenix Life Assur. Co. (Hoare's case), 31 Law J. Rep. (n.s.) Chane. 504 ; 2 Jo. & H. 229. A transferee of shares, having taken upon himself the character Of owner, cannot rely upon any irregu- larities in the transfer to escape liability, whether the shares belong to him beneficially or as trustee. Ibid. - A testatrix, who held shares in a company, by her will gave her residuary estate, which included them, to A B, whom she appointed her executrix. The deed of settlement of the company provided that executors, legatees, &c., should become shareholders and receive dividends only upon executing a deed, making themselves personally liable. A B, without executing any deed, received six dividends, and, with the exception of the two last, signed the receipts as executrix. The company, without the knowledge of A B, returned her name to the Stamp Office as a shareholder, and about four years after the testatrix's death entered it on the dividend list in lieu of that of the testatrix. Upon the company being wound up, — Held, that A B was liable as a contributory only in her representative charactei-. Ex parte Bulmer, in re the Herefordshire Banking Co., 33 Law J. Rep. (n.s.) Chanc. 609 ; 33 Beav. 435. (i) Persons who have withdrawn from the Company or forfeited their Shares. By the rules of a mutual guarantee society notice of the withdrawal of any of the members was required to be given, but no particular form of notice was required, nor was it stated to whom the notice should be given : — Held, that parol notice of withdrawal given by a member to the agent through whom the original contract with the society was made was sufficient. In re the Solvency Mutual Ouarwntee Soc. (Hawthorne's case), 31 Law J. Rep. (n.s.) Chanc. 625. A shareholder withdrew from a company in pur- suance of various resolutions passed at several general and special meetings; he paid what was required of him, and the company was subsequently remodelled. Twelve years and five months after- wards the company was wound up under an order of this Court: — Held, by the Master of the Rolls, and affirmed, on appeal, by the Lords Justices, that the lapse of time and the subsequent acts of the company prevented any inquiry into the validity of the trans- action, and that the retiring shareholder could not be placed on the list of contributories. Ex parte Brotherhood, in re the Agricultural Cattle Insur. Co., 31 Law J. Rep. (n.s.) Chanc. 861 ; 31 Beav. 365. COMPANY — Dissolution and Winding-up. 117 The directors of a company made arrangements with S, a shareholder who was dissatisfied with its management and desirous of obtaining a winding-up order, for enabling him to retire from the company by a forfeiture of his shares for non-payment of calls upon the terms of the shareholder paying n sum of money to the directors. The stipulated sum of money was paid ; a resolution of the board of directors was passed declaring the shares forfeited for non-payment of calls, and the forfeiture regis- tered at the office for the registration of joint-stock companies ; and from that time the name of S was omitted from the list of shareholders in the share- register book, and in the next balance-sheet the shares were entered as cancelled ; but no other notice of the transaction was given to the other shareholders, and no notice of any of the transactions of the company was given to S after the registration of his forfeiture. Twelve years afterwards the com- pany was ordered to be wound up, and three years later an application was made by the official manager to add the name of S to the list of contributories: — Held, reversing the decision of the Master of the Rolls, that the transaction was collusive between S and the directors, and was not cured by lapse of time ; and the name of S was ordered to be added to the list of contributories. In re the Agriculturist Cattle Insur. Co. (Spademan's case), 34 Law J. Rep. (n.s.) Chanc. 321. Brotherhood's case (31 Beav. 365 ; 31 Law J. Rep. (n.s.) Chanc. 861) distinguished. Ibid. A shareholder, who is permitted to retire from a company by an irregular arrangement entered into with the directors, cannot, by way of defence to pro- ceedings impeaching the arrangement, successfully allege acquiescence therein on the part of the other shareholders, without shewing that the arrangement was brought to tbeir knowledge. Ibid. In October, 1846, A, in the belief that he must take shares in order to qualify for the office of director which he had accepted in an insurance com- pany, applied for, and had certain shares allotted to him. Understanding shortly afterwards that no qualification was necessary, he thenceforward repu- diated the shares, refusing to execute the deed of settlement, or to pay calls. No dividend was ever received by him. In 1855, after intermediate com- munications, he offered to pay a specified sum on being released from all further liability, and the directors, who were empowered by the deed of settlement to compromise disputed claims, passed a resolution accepting his proposal. This resolution was confirmed at a general meeting of shareholders, but no notice had been given of the intention to confirm the arrangement or of its terms, nor were the terms stated in the circular subsequently sent to the shareholders, containing the directors' report, and the resolutions passed by the meeting. A's name had been originally put upon the register of share- holders, and was never removed. In the year 1861 the company was wound up. The Master of the Rolls, on the authority of the decision on appeal in Spachman's case (34 Law J. Rep. (n.s.) Chanc. 321), put A on the list of contributories ; but the order was, on appeal, discharged by the Lords Justices, their Lordships holding (there being no ground for imputing fraud, collusion, suppression, or conceal- ment) that whether A was originally liable as a shareholder or not, the arrangement under which he had been released must stand as a hona fide com- promise. In re the AgricuUwrist Cattle Insur. Co. (Lord Belhaven's case), 34 Law J. Rep. (n.s.) Chanc. 503 ; 3 De Gex, J. & S. 41. The decision in Spademan's case distinguished, as founded on the existence of collusion. Ibid. The directors of a company having treated shares as forfeited for non-payment of calls, and the com- pany being afterwards ordered to be wound up, the shareholder's name will not be placed upon the list of contributories on the application of the official manager. In re the State Fire Insur. Co. ( Webster's case), 32 Law J. Rep. (n.s.) Chanc. 135. Whether it would be done on the application of the creditors^ representative — gucere. Ibid. M applied for 200 101. shares in a company, and paid 500Z., being the amountof a call of il. 10s. per share. Before any registration or allotment he ex- pressed a wish that the number of shares should be reduced, and that theSOOZ. should be applied to pay for fifty shares in full. The directors of the company thereupon passed a resolution accepting the 600^. as in respect of full payment on fifty shares, and treating the matter of the remaining 150 shares as remaining in abeyance, and sent M certificates for fifty shares paid for in full. M having afterwards discovered that his name had been entered on the register for 200 shares, he complained, and requested that the entry might be altered so as to represent him as a holder of fifty paid-up shares, and he received the copy of a resolution that the 150 shares had been forfeited as no calls had been paid. Upon the winding-up of the company, — Held, by the Master of the Rolls, and, on appeal, by the Lords Justices, that M had a right to modify his acceptance of the 200 shares before he became absolute owner by allotment and registration of any shares, and that he was not a contributory in respect of the 150 shares. Ex parte Miles; In re the Exhall Coal Mining Co. (Zim.), 34 Law J. Rep. (n.s.) Chanc. 123. (Jc) Transferor of Shares. A joint-stock company, the shares in which passed by delivery, was ordered to be wound up. After this a shareholder sold them at a nominal price, through a broker, to his (the shareholder's) own father, who was a needy man, and supported by others. The shareholder admitted that he parted with the shares to avoid liability. The Master of the Rolls placed the name of the shareholder on the list of contribu- tories, instead of that of his father; and, on appeal, the Lords Justices held, that the transaction was not bona fide, but colourable merely, and that the name of the son must be retained. Ex parte Costello, in re the Mexican and South American Co., 30 Law J. Rep. (n.s.) Chanc. 113. The holder of a large number of shares in a joint- stock company, for which he had executed the deed, transferred them, in consideration of a small sum of money, to his bailiff, a man without property, and who earned wages of a guinea a week. The consider- ation-money was not paid. The company was ordered to be wound up, and the name of the transferee was placed upon the list of contributories ; but upon appeal, the Master of the Rolls ordered the name to be removed, and that of the original holder of the 118 COMPANY — Dissolution and Winding-up. shares to be placed thereon, his Honour considering the transaction to be merely colourable; and the Lords Justices affirmed the decision. Ex parte Budd, in re the Electric Telegraph Co. of Ireland, 31 Law J. Rep. (n.s.) Chanc. 4; 3 De Gex, F. & J. 297. In order to constitute a valid sale of shares, so as to entitle the vendor to have his name excluded from the list of contributories, though it is not neces- sary that the purchaser should be a person capable of meeting all demands that may be made upon him in respect of the shares, yet the transaction must be bonajide as between the vendor and purchaser. In re the Phcenix Life Assur. Co., ex parte Matton, 31 Law J. Rep. (m.s.) Chanc. 341. A shareholder in a joint-stock company, to avoid payment of a call, procured a person of no means to accept a transfer of his shares for a nominal considera- tion, and agreed to indemnify him against all liability. The directors refused to register the transfer until the call should have been paid. Afterwards, upon the winding up of the company, the original shareholder's name wm placed upon the list of contributories. Upon his application to have it removed, it was held, that there was no bona fide transfer of the shares, and the name was retained upon the list. Ibid. If the directors of a company take a transfer of the shares of a shareholder to a nominee to prevent an exposure of its affairs and the prosecution of a petition to wind up the company, it will not relieve the shareholder from his liabilities to the company, or prevent him on a winding-up order being obtained from being put upon the list of contributories to the company in respect of his shares. Ex parte Eyre, im re the Mitre Assur. Co., 31 Law J. Rep. (n.s.) Chanc. 640; 31 Beav. 177. Upon the compromise of an action brought by 6 against a company in which he was a shareholder, it was arranged that G should transfer his shares to S, who was the managing director, and should receive from the company a sum of money as the price of his shares and in satisfaction of his claim. Accord- ingly, the money was paid, the shares were trans- ferred, and the transfer registered. Two years afterwards the company was ordered to be wound up, and the official manager placed G's name on the list of contributories, on the ground that the transfer was invalid, S being a trustee for the company, and the assent of the shareholders to the transaction not having been obtained. The Court, under the cir- cumstances, declined to impute to G knowledge that S was a trustee for the company; but independently of this it was held, that the transaction having been acquiesced in by the shareholders for two years, their consent must be presumed as against the company, and accordingly G's name was ordered to be taken off the list. In re the British Provident Life and Fire Assur. Soc. (Dr. Qrady's case), 32 Law J. Eep. (.v.s.) Chanc. 326; 1 De Gex, J. &, S. 488. A shareholder in a joint-stock company was chosen director, and acted as such, but, wishing to get rid of his shares, applied to the managing director and entered into an arrangement that if the latter would find a purchaser for the shares he (the managing director) should have 101. per cent, commission on the transaction. Subsequently the shareholder trans- ferred direct to the company, the purchase-money for the shares being taken in part payment for annuities granted by the company to the share- holder, and paid the managing director the balance of the consideration for the annuities, and the 10/. per cent. The deed of settlement authorized the purchase of shares by the company, provided that it should not be lawful for the directors to purchase any shares without the authority and sanction of a general meeting of proprietors previously in that behalf obtained. The only notice of the transaction at any general meeting appeared to be an obscure reference to it in a balance-sheet presented at a subsequent meeting ; but the minutes of what took place at the meetings of the company were generally inaccurate, and the company exercised acts of owner- ship over the shares so transferred. Five years elapsed, and the company was ordered to be wound up : — Held, that it was not necessary that the sanc- tion of a general meeting should be obtained pre- viously to any treaty for the purchase of the shares, but only previously to the contract becoming finally binding, and that under the circumstances it must be assumed as against the company that the transaction was properly submitted to a meeting and sanc- tioned ; and consequently (reversing the decision of one of the Vice Chancellors) that the transfer was valid, and the transferor must be struck off the list of contributories. In re the British Provident Life and Fire Assur. Soc. (Lane^s case), 33 Law J. Rep. (U.S.) Chanc. 84 ; 1 De Gex, J. & S. 504. Held, also, that the stipulation for the allowance of commission did not affect the transaction as between the transferor and the company. Ibid. (I) Insolvent. A shareholder in a company, in respect of which a winding-up order was made, applied for his dis- charge in India under the India Insolvent Act, but did not name the company in his schedule as creditors. After he had obtained his discharge his name was placed on the list of contributories, and a call was made: — Held, reversing the decision of one of the Vice Chancellors, that his name must be removed from the list of contributories, and that he was not liable to the call. Expa/rte Pa/rbwry, imre the Warwick and Worcester Rail. Co., 30 Law J. Rep. (n.s.) Chanc. 513; 3 De Gex, F. & J. 80. (m) Extent of LiahUity. A joint-stock company purchased mines, subject to an existing mortgage debt, for payment of which B was a surety for the original mortgagor, and in pursuance of arrangements entered into they gave to the mortgagee their promissory note for the money due on the mortgage, and to the vendor several promissory notes for the payment of the rest of the purchase-money by instalments. Before the notes became due the company was ordered to be wound up, and B, who was also a shareholder, was placed upon the list of contributories. B then took from the mortgagee a transfer of the mortgage securities, (including the promissory note for the mortgage- money,) and from the vendor an assignment of two of the other promissory notes, and claimed to set off the amounts so due against the amount of his call pro tanto : — Held, that he was entitled to such set-off in respect of the mortgage-money, on the principle that a surety paying off his principal's debt is entitled to the benefit of all the securities held by COMPANY — Dissolution and Winding-up. 119 the creditor, but that he was not entitled to set off the amount due upon the other two promissory notes. Ea: parte Barrett, in re the Moseley Qreen Coal ojiid Coke Co., 34 Law J. Eep. (n.s.) Bankr. 41. (F) Creditoes. (a) Rights of, against Property of the Company. A creditor of a company which was in the course of being wound up established his debt against the official manager. The Court refused to allow the creditor to proceed directly against the contribu- tories to recover the amount under the 11 & 12 Vict. c. 46. s. 56, thinking that the proper course was to pay the debt by means of a call. In re the Cameron Coalbrooh Co., 30 Beav. 216. A B, a creditor of an unregistered company, sued for his debt, and after long hostile litigation ob- tained judgment and issued a writ of fi. fa., which was duly executed by seizure on the 29th of Sep- tember. On the 6th of October, a petition was pre- sented, under the Companies' Act, 1862, for the winding-dp of the company ; and on the 9th of October an order was made by the Master of the Rolls ex parte, to restrain the sale by the sheriff of the property seized, bis Honour being of opinion that the object of the act was to secure equal dis- tribution amongst all creditors. On appeal, it was held, that the creditor ought not, under the circum- stances, to be restrained from reaping the fruits of his action by sale of the property taken in execution. Ex parte Parry, in re the Great Ship Co. (Lira.), 33,Law J. Rep. (n.s.) Chanc. 245. Whether, where an execution has been duly per- fected by seizure before the presentation of a peti- tion for winding-up, the Court has jurisdiction, under the 201st section of the Companies' Act, 1862, to restrain a sale — quoere. Ibid. Whether in any case an injunction can properly be granted ex parte, under that section — qucere. Ibid. Where an execution has been perfected by seizure before the commencement of the winding-up, a sale after the commencement is not a " putting in force of the execution within section 163. of the Com- panies' Act, 1862 " (per the Lord Justice Twner). Ibid. The sheriff was served with notice of the original motion, but not with notice of the appeal : — Held, that he was entitled to the costs of his appearance at the Rolls, but not to any costs on the appeal. Ibid. After an order has been made for winding-up, a judgment creditor will be restrained by injunction from proceeding to execution under a fi. fa. against the company. In re the Waterloo Life, Education, Casualty and Self-Relief Assur. Co., 32 Law J. Rep. (n.s.) Chanc. 371 ; 31 Beav. 689. A landlord demised a colliery to certaip persons who declared themselves trustees for a company. The rent fell into arrear, and the landlord put in a distress upon the premises. At that time a petition had been presented, upon which an order to wind up the company was afterwards made. Upon a petition by the landlord for leave to remove and sell the goods distrained, — Held, notwithstanding the 25 & 26 Vict. c. 89. ss. 84, 16S, that he was en- titled to proceed with the distress and sell the goods of the company upon the premises, and leave was given accordingly. In re the Entail Coal Mining Co. (Urn.), 33 Law J. Rep. (n.s.) Chanc. 695. Semhle—The prohibition contained in section 163. of the Companies' Act, 1862, against enforcing a distress against the effects of a company which has been ordered to be wound up, applies only where the company is the tenant. Ibid. (6) Actions mvd Suits hy. Under a voluntary winding-up, the Court has jurisdiction to stay actions by creditors against the company. In re the Keynsham Co., 33 Beav. 123. Upon granting an injunction to stay an action by a creditor against a company, during a voluntary winding-up, the Court required the liquidators to give the creditor access to the proceedings, and gave to the creditor his costs down to the time he had notice of the winding-up. Ibid. A creditor brought an action against a company, which afterwards resolved voluntarily to wind up. On an application by the company, — Held, that all further proceedings in the action must be stayed upon the creditor being allowed to prove for his debt and the costs of the action and of the application. Inre the Life Assoc, of England (Lim.J, 34 Law J. Rep. (n.s.) Chanc. 64. In a suit against a company to restrain trespass, liberty was given, under the 25 & 26 Vict. c. 89. s. 87. to the plaintiffs, after a winding-up order, to proceed with the suit. Wyley v. iAe ExhaM Coed Mining Co. (Lim.J, 33 Beav. 639. (c) Payment of Debts. The S company agreed, in writing, to purchase the business of the T company. Part of the con. sideration was to consist of a sum of money pay- able by instalments at fixed times. In 1861 an order was made for winding up the S company. At that.time all the instalments of the consideration- money had become due, but none had been paid, and the T company claimed to be entitled to in- terest on the unpaid instalments from the respective times when they became due to the date of the winding-up order. The agreement contained no pro- vision as to the payment of interest : — Held, that the T company was entitled to interest at 51. per cent., and that the Court of Chancery had jurisdic- tion, under the 11 & 12 Vict. c. 45. e. 83, to make calls to raise the amount of such interest. In re the State Fire Insur. Co. (the " Times " Co. claim), 34 Law J. Rep. (n.s.) Chanc. 58 ; 2 Hem. & M. 722. Under a winding-up subsequent to the Winding- up Amendment Act, 1867, and prior to the Com- panies' Act, 1862, — Held, that on the company being found to be insolvent, an annuitant was en- titled to prove under the winding-up for the esti- mated value of the annuity without taking any preliminary proceedings to establish the amount as a debt. In re the English and Irish Chwch and University Asstir. Soc. (Hunt's Annuity case), 1 Hem. & M. 79. (G) Calls. An order under the winding-up acts is necessary to justify the official manager in proving under a bankruptcy ; but proof having been made without such order against a bankrupt who had been com- 120 COMPANY — Dissolution and Winding-up. mitted for non-payment of a call, — Held, that the bankrupt was entitled to his discharge. In re the Life Assur. Treasury, ex parte Pepper, 1 Hem. &M. 755. A call can be made by the Court of Bankruptcy upon the shareholders at the time of re-registration to discharge debts of the company then due, when- ever they accrued. Ex pa/rte Steveii&on, in re the Liverpool Tradesman's Loan Co. (Lim.J, 32 Law J. Rep. (N.s.) Chanc. 96. A winding-up order having been made in 1849 under the Winding-up Act, 1848, in 1862, an order for a call was made in the usual manner, and a cir- cular notice of such order was sent by post, prepaid, to one of the contributories, and the circular notice so sent was not returned. At the expiration of three weeks a balance or four-day order was made, and as it was found impossible to effect personal service, an order for substituted service was obtained, which immediately reached the party, and he took out a summons to discharge the balance order and the order for substituted service: — Held, that both orders were regular, and that the summons must be dismissed, with costs. In re the Warwich and Wor- cester Bail. Oo., ex parte Sir John de £eauvoir, 32 Law J. Rep. (n.s.) Chanc. 453. (H) Practice. Where the Court of Chancery has made an order in a \vinding-up case for the further proceedings to be taken in a particular Court of Bankruptcy, that Court has jurisdiction to commit persons disobeying its order in such further proceedings. Bx parte Sirtzelj in re the United General Bread and Flour Co. for Plymouth, Devonport and Stonehouse, 30 Law J. Rep. (n.s.) Chanc. 38. An unincorporated joint-stock company of more than seven members, having a private act of parlia- ment enabling it to sue and be sued, and regulated by a deed of settlement which contained a clause for the transfer of stock of members becoming insol- vent, and stipulated that the assignees of such insolvent members should not be members in respect of such stock, was ordered to be wound up by the Master of the Rolls, under the Joint-Stock Companies' Wind- ing-up Acts. This order was made after one of the members of such company had become insolvent. The defendant, who had been also a member of such company, but had transferred his shares in it pre- viously to the making of such order, compromised his liability as contributory by payment of a sum of money to the official manager, with the consent of the Master of the Rolls, after creditors' representatives had been duly advertised for and chosen pursuant to the 20 & 21 Vict. c. 78. The plaintiff proved against the company in the winding-up proceedings for a debt due to her from the company, and afterwards brought an action against the defendant for such debt without the leave of the Master of the Rolls : — Held, that this Court, being the Court in which the action was brought, had authority under the 20 & 21 Vict. c. 78. o. 7. to stay proceedings in such action. — Held, also, that the company was within the Winding-up Acts, 11 & 12 Vict. c. 45. and 12 & 13 Vict. c. 108. and that the Master of the Rolls had jurisdiction to make the winding-up order, and that the company was not dissolved by the said insolvency of one of its members so as to prevent the applica- tion of the Winding-up Acts. Thomas v. Wells, 83 Law J. Rep. (n.s.) C.P. 211 ; 16 Com. B. Kep. N.S. 608. Where a person'sname had been improperly placed upon the register of shareholders of a company, the proper course was considered to be to apply, under the special statutory jurisdiction (see 19 & 20 Vict. c. 47. 8. 25. and 25 & 26 Vict. c. 89. ». 35), to remove the name from the register of shareholders, and not to oppose the placing his name upon the list of contributories. In re the Moseley Oreen Coal Co., ex parte Fox, 32 Law J. Rep. {s.a.) Bankr. 67. In such a case, a single notice of motion may be given intituled both in Chancery and in Bankruptcy, seeking to remove the name as well from the register of shareholders as from the list of contributories. Ibid. When a decision under which a person's name has been placed on the list of contributories, has been reversed, it is unnecessary for other persons similarly situated to apply to the Court. Bx parte Munday, 31 Beav. 206. The affidavit in support of a petition to wind up a society was filed before instead of after its presenta- tion, contrary to the General Order of the 11th of November, 1862. On a statement of the facta, the Court allowed the affidavit to be re-sworn and filed, and the order which had been made on the petition to be dated subsequently. In re the Western Benefit Building Society,S3 Law J. Rep. (n.s.) Chanc. 179 ; 33 Beav. 368. A motion for the rectification of the register of a joint-stock company, under the 25 & 26 Vict. c. 89. 8. 35. is not irregular merely on the ground that an order has been made for winding up the company. In re the Scottish and ■ Universal Finance Bank ( Breckenridge's case), 2 Hem. & M. 643. But where there are a number of persons in a similar situation and the official liquidator has taken proper steps for having the question adjudicated upon once for all so as to rule all the cases, the Court will not entertain a separate application on the part of one of such persons, but will adjourn the motion to come on with the other similar cases. Ibid. Where a petition for winding up a limited com- pany cannot be heard on the day appointed by advertisement, by reason of the advertisement not having been inserted in proper time, the practice is to let the petition stand over for a fortnight, with liberty to insert fresh advertisements. The practice of the Court of Bankruptcy in this respect is not followed. In re the London and Westminster Wvne Co., 1 Hem. & M. 661. Form of removing the name from the register of shareholders under the Companies' Act, 1862. In re the Iron Ship Building Co., 34 Beav. 597. (I) Costs. The creditors' representative of a company being wound up, having been served with the petition of appeal, must be paid his costs by the appellant, who, being unsuccessful, was ordered to pay those of the official manager. Bx parte Costello, in re the Mexi- can and South American Co., 30 Law J. Rep. (n.s.) Chanc. 113. Costs of a second petition to wind up allowed under the circumstances. In re the Commercial Discount Co., 32 Beav. 198. The general rule of the Court that costs follow COMPANY-COMPROMISE. 121 the result, applies, in the absence of special circum- stances, to cases of contributories under a winding-up who have unsuccessfully opposed an'application to place them on the list. In re the BirlcbecTc Life Asm/r. Co., ex parte the Representatives of Bwrry, 2 Dr. & S. 321. 4.— SCIRE FACIAS AGAINST SHARE- SOLDERS. [Cleave v. Barwar^ 8 Law J. Dig. 156 ; s. u. 6 Hurls. & N. 22.] The Court will not grant a rule under the 8 & 9 Vict. c. 16. s. 36, for a scire facias against a party as a shareholder in a joint-stock company upon a judgment obtained against the company, unless the affidavits disclose reasonable grounds for believing that the party sought to be charged is a shareholder. The fact of his having applied for and received an allotment of shares and paid a deposit thereon is not enough. Edwards v. the Kilkenny Rail. Co., liCom. B. Rep. N.S. 526. The Court will not allow a sci. fa. to go against one as a shareholder in a joint-stock company unless reasonably satisfied that he actually is a shareholder. — Qucere, whether a sd. fa. can be granted to one who from the constitution of the association is a partner therein. Mather v. the National Assur. Co., in re Clark, 14 Com. B. Rep. N.S. 676. COMPENSATION. [See Lands CLAnsES Consomdaiioh Act.] COMPROMISE. A decree was made in a suit for taking and adjust- ing a complicated series of accounts. The decree was, in the opinion of the Court, in effect for a general account ; but it was considered by the parties to be merely for an account from 1825, all earlier accounts being supposed at the time of taking the decree to be correct. The suit wasthen compromised by the payment of 22,000?. Subsequently to the compromise, it was discovered that there were claims arising out of accounts prior to 1825. The Master of the Rolls considered that the whole accounts must now be taken and the compromise set aside. The Lords Justices, on appeal, held, that the compromise was binding from 1 825 ; and the defendants electing to 80 consider it, their Lordships varied the order of the Master of the Rolls, by directing the accounts prior to 1825 only to be taken. Stainton v. the Ca/rron Co., 30 Law J. Rep. (if.s.) Chane. 713. Parties entered into an agreement for compro- mising a suit, and infants being interested, a reference was made to chambers to ascertain whether it was for their benefit. Pending the reference, one of the adult parties became bankrupt, and afterwards the Court approved of the compromise: — Held, that the compromise was binding on the bankrupt from that date, subject to the confirmation by the Court, and that the assignees could not recede from it. Bousjield v. Bousfield, 31 Beav. 591. , In order that a transaction not otherwise valid may be supported upon the ground of its being a family DiOBST, 1860-65, arrangement, there must be a full and fair commu- nication of all material circumstances aft'ecting the subject-matter of the agreement which are within the knowledge of the several parties, whether such information be asked for by the other parties or not. Greenwood v. Greenwood, 2 De. Gex, J. & S. 28. A compromise sanctioned by the Court of Chan- cery, on behalf of persons under disability, is liable to be set aside on the ground of fraud, or of sup- pression of material facts, which amounts, in the eye of the Court, to fraud ; but, per the Master of the Rolls, not on the ground of error of judgment on the part of the Court in sanctioning the compromise ; and, per the Lord Justice Twner, not on any other ground than fraud, or conduct amounting thereto. Brooke v. Lord Mostyn, 34 Law J. Rep. (n.s.) Chanc. 65 ; 2 De Gex, J. & S. 373. An infant and a married woman were interested in a legacy, which was secured by a term of 500 years, created, by will, in real estates, to raise a fund, in aid of the personal estate, for payment of debts and legacies. It was represented by, or on behalf of, the tenant for life of the estates, that both funds were deficient, but he off^ered to give his personal covenant for the payment of the legacy within a limited time, if the estates were released. A suit was accordingly instituted by the parties entitled to the legacy ; and upon a reference to the Master, the latter relying upon evidence which represented the property to be much less valuable than it really was, reported in favour of the compromise, which was accordingly carried into effect with the sanction of the Court. A great part of the estates was afterwards sold in fee simple for sums which far exceeded those named as the value of the estates if sold for the term of 500 years. In the mean time the interest of the tenant for life in the estates was sold by his mortgagees to his son, who was tenant in tail, and the tenant for life became bankrupt. Upon a bill, on behalf of the infant, to set aside "the compromise and obtain pay- ment of the legacy, — Held, by the Master of the Rolls, (he being of opinion that the evidence before the Master, though erroneous, had been given bona fide,) that the compromisemust stand, although in the events which had happened, the covenant given by the tenant for life was wholly unavailable and worthless. But, on appeal, it appearing that material inform- ation which might possibly have led the Master to a conclusion adverse to the proposed compromise was in the possession of the tenant for life or his advisers, and not of the plaintiff or his advisers, and had been withheld from the Master, — Held, by the Lords Justices (reversing the decision of the Master of the Rolls), that the withholding of such information from the Master amounted to fraud ; and that, conse- quently, the plaintiff was entitled to be relieved, against the compromise. . Ibid. Suits were compromised with the sanction, of the Court (infants being interested), and it was agreed that the estate should be sold by auction for the pur- pose of division, and that A B should have the con- duct of the sale. At the auction, the property could not be sold, and it whs afterwards sold by private contract at the reserved bidding: — Held, that this was a valid sale, and the purchaser was decreed speci- fically to perform his contract. Bousfield v. Hodges, 33 Beav. 90. 122 CONFLICT OF LAWS. CONFLICT OF LAWS. The owners of a British ship mortgaged her in England, and she afterwards was taken by the mort- gagors to New Orleans, where she was attached by creditors, who took proceedings in the Courts there for the purpose of making her available for their demands. The English mortgagees intervened in these proceedings for the purpose of asserting their rights ; but their claim was wholly disregarded, the law of New Orleans not recognizing a mortgage of chattels ; and, under an order of the Court, the ship was sold to a British subject. The ship having after- wards returned to England with a cargo, the mort- gagees filed a bill to enforce their claim: — Held, that the judgment of a foreign Court of competent juris- diction is conclusive inter partes on the merits of the matter in dispute, but may be reviewed by the Courts in England if any error appears on the face of the record. Simpson v. Fogo, 32 Law J. Kep. (n.s.) Chanc. 249; 1 Hem. & M. 195. Where a foreign tribunal acts in defiance of the comity of nations by refusing to recognize a title pro- perly acquired according to the laws of England, its judgment will be disregarded by the English Courts. Ibid. In the distribution of assets the Lex fori prevails. Ibid. A will of personal estate, made by a testator in the place of his doraicil (and semhle also though made elsewhere), must be construed according to the law of the testator's domicil. Boyes v. Bedale, 33 Law J. Rep. (n.S.) Chanc. 283 ; 1 Hem. & M. 799. A testator domiciled in England made his will there, whereby he left a legacy to the children of his nephew C. At the date of the will and death of the testator, C was residing abroad, but his domicil was English. C subsequently acquired a French domicil, and became the father of an illegitimate child by a French lady. He afterwards married this lady, and the child was legitimated under the French law: — Held, that the will must be construed according to the English law ; and that the legitimated child of C was not entitled to the legacy. Ibid. Under a bequest to the children of L S, who had three children born to him in England, while domi- ciled there, by a woman with whom he had cohabited, and with whom he removed to Holland, and while domiciled in Holland had another child born to him by the same woman, whom he afterwards married in Holland, — Held, that the law of the country of the domicil at the time of the birth and of the marriage must prevail, and that the child bom in Holland was entitled to share equally with another child, born there after the marriage ; but the three children born in England, being illegitimate according to the law of England, were excluded. Qoocknan v. Goodnum, 3 Gifi^. 643. By a deed executed and registered in the manner required by the law of Ceylon, certain estates there were mortgaged to a banking company, to secure the payment of bills of exchange which had been dis- counted by the bank, and, subject to this mortgage, the same estates were, by another deed also duly executed and registered, mortgaged to B & Co., and by a deed, not executed as required by the law of Ceylon, the banking company covenanted on pay- ment of the bills to transfer the mortgage securities to R & Co. The bills were paid at maturity by R & Co., the necessary funds being advanced by S upon an agre6ment that the mortgage securities should be transferred to him, and accordingly R & Co. by letter directed the banking company to trans- fer the mortgage securities to S ; but afterwards R & Co. themselves demanded and obtained posses- sion thereof as being the next registered incum- brancers. S then filed a bill against the banking company and others, alleging that the deed of cove- nant and the letter of R & Co. constituted the banking company trustees for him, and that in delivering the securities to R & Co. they had com- mitted a breach of trust, and praying consequential relief :^Held, (affirming the decision of one of the Vice Chancellors,) that although the transactions would by the law of this country constitute the plaintiff equitable assignee of the securities, yet as it appeared by the evidence that they were insuf- ficient for that purpose according to the law of Ceylon, and that according to that law the banking company had no legal defence against the demand of R & Co., the bill must be dismissed with costs as against the banking company. Sichel v. Eaphael, 34 Law J. Rep. (s.s.) Chanc. 106. A contract by written correspondence between three brothers, British subjects, two of whom re- sided in England, and one in Chili without having acquired a domicil there, held, though relating to land in Chili, to be governed by English law. Good V. Cood, 33 Law J. Rep. (n.S.) Chanc. 273 ; 33 Beav. 314. In the year 1825, G C died at Arequipa, intestate, leaving a large real and personal estate at Valpa- raiso, in Chili. His mother and his three brothers, B, T and H, survived him. They all resided in England, except H, who at the time of the death of G C was in Peru, and who for many years subse- quently resided either in Peru or in Chili, but with- out acquiring a foreign domicil. In 1831 their mother died, having bequeathed all her property to her sons B, T and H, equally. In 1832 T offered his share of G C's estate to H for 1,000Z. ; H, in reply, inti- mated that with a view to save the expense of ren- dering formal accounts of G C's estate, he was willing to buy the shares of both B and T, which led to a long correspondence. In 1833, B wrote to H offering his share for 1,100Z., to be paid in part out of the mother's estate, but by a given date, and T wrote to H at the same time, saying whatever B determined would meet with his approval. The con- dition as to payment by the given time was not ful- filled ; but in the subsequent correspondence between B and H the arrangement was treated as binding between them, and was never repudiated by T, nor were any accounts of G C's estate applied for until after B's death, which occurred in 1849. In 1860, T sent an agent to Valparaiso, who, on behalf of T and the representatives of B, took proceedings in the Courts in Chili, and, in 1858, by a decree made in the Court at Santiago, it was decided that the letters between the brothers amounted to an agreement which bound B, but not T ; and H was directed to account to T for one-third of G C's estate. But upon a bill in this Court by H, and the assignee under his insolvency, — Held, that having regard to H's avowed object in purchasing both shares, and to T's acqui- escence from 1833 to 1849, T was bound equally CONTINGENT REMAINDER— CONTRACT. 123 with B ; and a decree was made restraining T from further proceedings in Chili to compel an account, and declaring him a trustee of hie share in the estate of G for the plaintiiFs. Ibid. CONTINGENT REMAINDER. A testator devised freeholds, copyholds and lease- holds for lives to T W for life, with divers contingent remainders over, with an ultimate remainder to the right heirs of the testator. There being no limita- tion to support contingent remainders, T W, who was also the heir-at-law of the testator, executed a release by which he granted and released the free- holds, copyholds and leaseholds to W B, to the intent that they should be discharged from the limitations declared by the testator, and he re- settled the estates. Upon a bill by the party first entitled in remainder under the will, — Held, that the release destroyed the contingent remainders created in the freeholds. — Held, also, that the contingent re- mainders in the copyholds were supported by the estate in the lord of the manor, and that they were not destroyed. — Held, further, that the contingent remainders in the leaseholds for lives were not des- troyed, as upon the death of the tenant for life the possible estate of the heir or executor, as special occupant, was not of sufficient capacity to merge the estate of the tenant for life. Pichersgill v. Grey, 31 Law J. Rep. (u.s.) Chanc. 394; 30 Beav. 352. CONSPIRACY. [See Inmotment.] CONTAGIOUS DISEASES. [The Contagious Diseases Prevention Act, 1864 (27&28 Vict. c. 86)]. CONTEMPT. A Court of assize is a superior Court; and, con- sequently, in a warrant of commitment by a Judge of assize for contempt, the adjudication of contempt may be general, and the particular circumstances need not be set out. In re Fernamdes, 6 Hurls. & N. 717. CONTRACT. [See Pleamno ; Equitable Pleadings.] (A) What amounts to a Coktraot. (B) When Valid or Illegal. (a) Consideration to support. (b) Foimded on Mistake. \c) Contrary to Statute or Piiblic Policy. (d) In Sestraint of Trade. (e) Concealment. (C) COUSTRUOTION OF CONTRACTS. (a) In general. (b) Particular Words. (1) "Forthwith." (2) "Russian black." (3) "Ship." (4) "Three months' bill." Promise implied by Law. Conditional Contracts. Condition Precedent. Time of the Essence of the Contract. When for the Court, (h) Extras. (D) Rescission, Determination, and Aban- donment OE Contracts. (E) Breach op Contract. (F) Evidence to explain or vary. (A) What amounts to a Contract. The plaintiff, having had no previous dealings with the firm, and knowing them only by reputa- tion, applied at the place of business of " Gandell & Co." for orders for goods : the firm then consisting of Thomas Gandell only, and being managed by Edward Gandell, a clerk. On the plaintiff asking to see Messrs. Gandell, Edward Gandell presented him- self, and so conducted himself as to lead the plaintiff to suppose that he was one of the firm of Gandell & Co. and had authority to order goods on their behalf (which was not the fact). The plaintiff sent goods, according to Edward Gandell's order, to the place of business of Gandell & Co., an invoice being made out, by Edward Gandell's direction, to the name of "Edward Gandell & Co." Edward Gan- dell, unknown to the plaintiff, carried on business with one Todd at another place ; and the goods were, within three or four days of their delivery, pledged with the defendant, with a power of sale, to secure advances bona fide made by him to Gandell & Todd, and he sold them under the power without notice from the plaintiff: — Held, that there was no contract of sale, inasmuch as the plaintiff intended to contract with Gandell & Co., and not with Edward Gandell personally, and Gandell & Co. were not contracting parties ; that no property therefore passed, and the plaintiff was entitled to recover the value of the goods from the defendant. Eardmany. Booth, 32 Law J. Rep. (n.s.) Exch. 105 ; 1 Hurls. & C. 803. A legal contract may be made with a fiuctuating body, such as a volunteer rifle corps, to supply cer- tain of its members with uniforms under which each individual member of the corps will be liable for the price of all the uniforms. Therefore, where the plaintiff, a tailor, supplied uniforms to certain mem- bers of the C Rifle Corps, and brought an action against one of the members for the price, entries in the plaintiff's book (made evidence by the defendant) headed " Dr., C Rifle Corps," is some evidence from which a jury may be justified in finding that the con- tract was made with the C Rifle Corps. Cross v, Williams, 31 Law J. Rep. (n.s.) Exch. 145 ; 7Hurls. & N. 676. The plaintiff, a tailor, brought an action against the defendant, the captain and a member of the com- mittee of management of a company of volunteer rifles called "The C Volunteer Rifle Corps," for the price of uniforms supplied to members of the corps, as the plaintiff alleged, by the defendant's order. The defendant pleaded the general issue, and put in evidence entries in the plaintiff's books headed " C Rifle Corps, Dr. 28 suits for the supply of the fol- lowing gentlemen, at Zl.," followed by the names of the members of the corps to whom the suits had 124 CONTRACT; (A) What amounts to a Contbact. been supplied. The Judge, at Nisi Prius, left to the jury — Ist. Did they believe that the understanding between the parties was that the defendant was to be paymaster ? 2nd. Did they believe that the contract was with the defendant jointly with the committee ? 3rd. Did they believe that the contract was with the defendant jointly with tiie whole corps .^^ 4th. Did they believe that the plaintiff looked to each member to pay for his own uniform ? And he directed them that, if they found the affirmative on the 1st, 2nd and 3rd questions, inasmuch as the defendant had not pleaded in abatement the non-joinder of the other members of the committee and of the corps, that the defendant would be liable in this action ; that if they found the affirmative on the 4th ques- tion, the defendant would not be liable. And, that the entries in the plaintiff's books headed " C Rifle Corps" were some evidence from which they might infer that the contract had been with the whole corps. The jury having found a verdict generally for the plaintiff, — Held, discharging a rule to set aside this verdict on the ground of misdirection, that there was no misdirection, — inasmuch as there was some evi- dence on which the jury might have found their verdict on any one of the questions left to them ; that, although it might be very improbable that a contract such as that stated in the 3rd question had been made in fact, yet such a contract could be made in law; and, per Ohannell, B. — that although, looking at the entries in the plaintiff's books, it could not be said there was^no evidence, or not a scintilla of evidence, of the contract stated in the 3rd question, and that, therefore, the Judge was war- ranted in leaving the 3rd question to the jury, yet the evidence was wholly unsatisfactory and insuf- ficient to establish such a contract. Ibid. A proposal to receive tenders for certain things to be sold (specifying no limitation or qualification) and an acceptance (also specifying no limitation or quali- fication) is a contract for the whole. Thorn v. the Commissioners of Public Works, 32 Beav. 490. The defendants advertised that offers would be received for old Portland stone of Westminster Bridge. The plaintiff made an ofl'er for the stone of a particular quality which was accepted : — Held, that this was a contract for the purchase of all the stone of that quality. Ibid. The plaintiff insured his ship by becoming a member of an association for marine assurance, and signed an undertaking to be bound by the rules of the association ; but although he applied for a copy of the rules, he was not furnished with one, and although he mentioned that his ship was mortgaged, he was not told that there was a rule that no member should recover any money on his assurance whose ship was mortgaged, unless the mortgagee had, pre- viously to the loss, covenanted by deed to pay all sums which might become due from the mortgagor to the association. Demurrer to the bill filed, alleg- ing the loss and to recover the sum insured, on the ground that the mortgagee had not executed such a deed — overruled. Tumiull v. Woolfe, 3 Giff. 91. The assent which is so necessary to the validity of an agreement in this Court, must be an assent unin- fluenced by any power which the one party may have of operating on the fears of the other ; therefore, where an agreement was executed by the one party, the plaintiff^, under a threat by the other that the plaintiff's son would otherwise be indicted for forgery, it was set aside with costs. Sayky v. Williams, 4 Giff. 688. Where the pUintiff's main and influencing pur- pose for entering into the agreement was to relieve his son from exposure, disgrace and ruin, the inter- vention of other circumstancesor collateral advantages to himself are not enough to sustain the agreement in this Court. Ibid, A father, in contemplation of the marriage of his daughter, wrote to her intended husband, saying " that she should be entitled to her share in what- ever property he (the father) might die possessed of." irhe father by his will gave to his daughter only a life interest in a portion of his property, and died, leaving real and personal estate. Upon a bill by the husband and wife, — Held, that the letter did not affect the real estate, but that it bound the father to leave his daughter a legal share of the personalty equal to what she would have taken if he had died intestate. Laver v. Fielder, 32 Law J. Rep. (n.s.) Chanc. 365 ; 32 Beav. 1. The defendant, by letter, offered to sell a piece of land to the plaintiff at a certain price. The letter concluded, " There will be the usual clauses in a contract and some limitations as to the length of title to be shewn and other minor details": — Held, that this offer, with the acceptance in writing, did not constitute a contract which the Court could enforce, owing to the uncertainty as to the clauses to be inserted and as to the title to be shewn. Rum- mens v. Sobins, 3 De Gex, J. & S. 88. A railway company who were promoting a bill for a new line, entered into an agreement with a land- owner that if the act passed they would pay him a fixed sum for so much land as they should require, and would, for the convenience of his estate, make such crossings as his surveyor should, within a month after their taking possession, notify to their engineer: - — Held, that this could not be construed as a contract to make all necessary and proper crossings, with a superadded direction as to the mode of ascertaining them, so as to enable the Court to ascertain them if not ascertained in that particular mode ; and as no notification was given within the time, there was no contract which the Court could enforce. The Eairl of Damley v. the London, Chatham and Dover Sail. Co., 3 De Gex, J. & S. 24. (B) When Valid or Illegal. (as) Consideration to support. After a marriage between the plaintiff and the daughter of W 6, the father of the plaintiff and W G, in order to provide a marriage portion, agreed respectively to pay two sums of money to the plaintiff, and they also agreed that the plaintiff should have full power to sue for the said sums of money. The plaintiff was not a party to the agreement. After the deaths of the father of the plaintiff and W G, the plaintiff brought an action upon the agreement, against the executor of W G, to recover the sum which W G had agreed to pay to him : — Held, that he could not recover, notwithstanding his near rela- tionship, as he was not a party to the agreement, and no consideration ran from him. Tweddle v. Atkinson, 30 Law J. Rep. (n.s.) Q.B. 265 ; 1 Best & S. 393. CONTRACT; (B) When Valid ob Illegal. 125 C, the testator, wrote the following letter to L, his nephew: "I am glad to hear of your intended mar- riage with E, and, as I promised to assist you at starting, I am happy to tell you that I will pay to you 150Z. yearly during my life, and until your annual income, derived from your profession of a Chancery barrister, shall amount to 600 guineas, of which your own admission will be the only evidence that I shall receive or require." L having afterwards married E, sued C's executors for arrears of the annuity accrued due during C's lifetime: — Held, per Erie, O.J. and Keating, J., that the above letter con- tained a good consideration for C's promise to pay the annuity ; the consideration pleaded being, thatL would marry E, and his subsequent marriage. Per Byles, X, that the letter was a mere letter of kind- ness, and created no legal obligation. Shadwell v. Shadwell, 30 Law J. Rep. (n.s.) C.P. 145 ; 9 Com. B. Rep. N.S. 159. Held, per Erie, C.J., Byles, J. and Keating, J., that L's continuance at the bar was not a condition precedent to his right to the annuity. Ibid. An agreement not to call for the performance of a deed, and to substitute certain other terms for some of the matters provided for by the deed is a good consideration for a promise to perform such substi- tuted contract, even although the deed be not thereby released. Nash v. Armstrong, 30 Law J. Rep. (n.s.) C.P. 286 ; 10 Com. B. Rep. N.S. 269. Semble, per WUles, J., such agreement would be an answer to an action on the deed by way of equit- able plea. Ibid. The delivery of goods by A to B is a good consi- deration for a promise by B, although A had already contracted with C to deliver the goods to his order, and C has ordered him to deliver to B. Scotson v. Pegg, 30 Law J. Rep. (u.s.) Exch. 225 ; 6 Hurls. & N. 295. To a declaration, alleging that in consideration that the plaintiffs would deliver to the defendant a cargo of coals, then on board the plaintiff's ship, the defendant promised to unload the coals in a certain time, the defendant pleaded that the plaintiffs had previously contracted to deliver the coals to the order of other persons, who had ordered the plaintiffs to deliver to the defendant, and that there was no other consideration for the defendant's promise: — Held, that the plea was no answer to the action. Ibid. B and the defendant, being joint-owners of a horse and a mare, agreed that the defendant should sell them and pay one moiety of the proceeds to the plaintiff, as the agent of B, who was abroad. The defendant accordingly sold the horse to C for 600/. and the mare for 300^., but did not receive the price of the horse, but took a promissory note for 3002. for the price of the mare, and indorsed the note to the plaintiff, as B's agent, and the plaintiff received the amount as such agent. The defendant after- wards requested the plaintiff, on his own responsi- bility, to pay him a moiety of the SOOl., in the plaintiff's hands as such agent, and the plaintiff agreed to do so provided the defendant would under- take either to deliver to the plaintiff a bill of exchange at two months, accepted by C, for 233t, B'a moiety of the horse (after certain deductions), or would pay to the plaintiff that amount in cash within two weeks. The defendant, thereupon, gave the plaintiff the following undertaking : — " In consideration of your having paid me a sum of 150?. on account of my share of the mare, I hereby undertake to deliver to you a bill for 233/., drawn by me upon and accepted by C, at two months, or the above sum in cash within two weeks from this date" : — Held, that a declaration alleging the above facts disclosed a good consideration for the defendant's promise. Surtees V. Zister, 30 Law J. Rep. (n.s.) Exch. 369 ; 7 Hurls. &N. 1. Communications took place between a bachelor and his liept mistress as to a discontinuance of the cohabitation, and in the course of these communica- tions the woman uniformly asserted that he had promised to marry her, which assertions there appeared to be a fair prospect of her being able to substantiate. Ultimately, the man proposed by letter that they should separate, he allowing her an annuity, which offer she accepted: — Held, that this was a contract for valuable consideration, which could be enforced against the man. Keenan v. Handley, 2 De Gex, J. & S. 283. A suit was instituted by A against B, founded on an alleged agreement signed by B's testator. A being ordered to produce on oath all documents in his possession, and being unable to find the agreement, induced B, without stating this inability, and in the absence of his solicitor, to compromise the suit. B filed a bill to set aside the compromise, and A, being still unable 1;o produce the alleged agreement, and there being no secondary proof of its ever having existed, except the testimony of A and his wife, the Court set aside the compromise. Cooke v. Oreves, 30 Beav. 378. A banker required security from his customer for an overdrawn account. The customer, by letter, promised to hypothecate certain goods, but upon being asked for the delivery warrants, he refused to carry out his promise. Upon bill filed to enforce the promise, and demurrer thereto by the defendant, — Held, that from the nature of the transaction, some forbearance to sue on the part of the creditor must be assumed to have taken place, and that this was sufficient to prevent the promise to hypothecate from being mcdum pactum. The Alliance Bank v. Broom, 34 Law J. Rep. (n.s.) Chanc. 256 ; 2 Dr. & S. 289. S, being an executor of G, and devisee of his real estate in trust for his children, induced the children to concur in the sale and conveyance of G's real estate to his own brother and partner, he himself being interested in the purchase, by a verbal promise to leave them by his will as much as or more than they would get under the will of G : — Held, that the 4th section of the Statute of Frauds did not apply, the promise being one which might possibly be per- formed within twelvemonths; that although thesale was necessary for payment of debts, and the full value was given, there was a sufincient consideration for the promise ; and that the estate of S was bound to pay the children of G a sum equal in amount to the clear residue of G's estate. Ridley v. Ridley, 34 Law J. Rep. (n.s.) Chanc. 462 ; 34 Beav. 478. An obligor bound himself to pay an annuity to an unmarried woman by whom he had had several children, on condition that she should not require the custody or management of the said children: — Held, that" there was a sufficiently valuable con- sideration to support the bond as a specialty debt. 126 CONTRACT; (B) When Valid or Illegal. In re PlaskeU'a Estate, 30 Law J. Rep. (n.s.) Chanc. 606. (6) Founded on Mistake. The defendant by letter offered to sell some pro- perty to the plaintiff for l,250i. ; the plaintiff by letter accepted the offer. The defendant had by mistake inserted 1,250/. instead of 2,250/. in his letter, and he immediately gave notice of the error. The Court refused to enforce the contract. Webster v. Cedl, 30 Beav. 62. (c) Contrary to Statute or Public Policy. To a declaration for the price of certain volunteers' uniforms, the defendant pleaded that the contract was corruptly entered into (in violation of the 49 Geo. 3. c. 126), with the intent that the defen- dant might have a certain military commission : — Held, that the plea disclosed no illegality within the statute. Eiclce v. Jones, 11 Com. B. Rep. N.S. 631. A contract for the payment of money in considera- tion of the resignation of a majority in the service of the East India Company, is illegal by the 49 Geo. 3. t. 126. Eyre v. Forbes, 12 Com. B. Rep. N.S. 191. A B, being requested by C D (in consequence of reports that he was paying improper attentions to a daughter of the latter) to discontinue visiting at his house, in order to lay C D under obligation to him, and so, by obtaining permission to continue his intercourse with C D 's family, to gain free access to the daughter, whom he had in fact secretly seduced, advanced to C D a sum of money on mortgage. Upon bill by A B to foreclose and by C D to set aside the deed, — Held, that, notwithstanding the pecuniary consideration, the immoral purpose viti- ated the whole deed ; and a decree was made for its cancellation, leaving A B to sue at law, if he thought fit, for the money lent. Willyams v. BuUmore, SuUmcre v. Willyams, 33 Law J. Rep. (n.s.) Chanc. 674; sub nom. W v. £ , 32 Beav. 574. A bank agreed to advance a sum of money on behalf of a company for the deposit required by the Houses of Parliament from the promoters, upon an agreement that unless the money was previously repaid, the bill should not be read a third time in the House of Lords. The money was accordingly depo- sited in the Court of Chancery on behalf of two persons, one of whom was named by the bank, and the other by the promoters. Afterwards the bank, without receiving the money, consented to the third reading of the bill in the House of Lords, upon an understanding that the directors of the railway com- pany would as soon as practicable procure a bond (upon the execution of which the deposit was by the special Railway Act made returnable) to be given to the Lords of the Treasury, and that the nominee of the company should then concur in such acts as would be requisite to obtain a return to the bank of the deposit. The act passed, and a bond was executed to the Lords of the Treasury ; but the nominee of the railway company refused his consent to any application to obtain a return of the deposit. Upon a bill by the bank against the two nominees and the railway company, — Held, on demurrer, by the Master of the Rolls, and on appeal by the Lords Justices, that the case was properly one for a bill in equity; that the agreement was neither illegal nor against public policy ; and that the directors of the railway company were not necessary parties in their individual capacity. Scott v. Oakeley, 33 Law J. Rep. (n.s.) Chanc. 612 ; 33 Beav. 601. The mere fact of the deposit being with the Accountant General of the Court of Chancery was sufficient to attract the jurisdiction of that Court — per the Master of the Rolls. Ibid. It is not an offence against the law of nations, or the law of this country, for the subject of a neutral state to supply contraband of war to a belligerent power; and the right of the other belligerent to seize such contraband of war in transitu is merely a co- existent conflicting right, which exposes the neutral merchant to the risk of confiscation, but does not render illegal a contract between him and another neutral subject for a joint adventure for the supply of such contraband goods. Ex parte Chavasse, in re GrazebrooJc, 34 Law J. Rep. (n.s.) Bankr. 17. Nor is such a contract rendered void by the Foreign Enlistment Act, 16 & 17 Vict. c. 107, or the Royal Proclamation of the 13th of May 1861. Ibid. (d) In Bestraint of Trade. Upon the sale by the defendant to the plaintiffs of a business of a horsehair manufacturer the defen- dant by written contract agreed not to buy, sell, manufacture, or directly or indirectly interfere in the trade or business of a horsehair manufacturer, except for the benefit of the plaintiffs ; and subsequently in a deed of assignment (executed in pursuance of the previous contract) the defendant covenanted that he would not, directly or indirectly, carry on the busi- ness of a horsehair manufacturer within 200 miles from B, without the consent in writing of the plain- tift's, except for their benefit and at their request. The defendant, besides being a manufacturer of horsehair, was, at the time of the sale, a, general dealer in unmanufactured horsehair; he also purchased and sold manufactured horsehair, which was usual both with dealers and manufacturers : — Held, upon evidence as to the mode of carrying on the business, that the limit of 200 miles was reasonable ; and held also, that the defendant had sold so much of the business as belonged to that of a horsehair manu- facturer, though forming part also of the business of a horsehair dealer ; and that he must be restrained from the purchase and sale of manufactured horse- hair. Barms v. Parsons, 32 Law J. Rep. (n.s.) Chanc. 247; 32 Beav. 328. (e) Concealment. R, being in difficulties, and the defendant being desirous to assist him, the plaintiff, at the request of the defendant, accepted a bill drawn upon him by R. The defendant, at the same time, entered into the following agreement with the plaintiff, dated the 24th of October : " You having lent your name to R on a bill for 110?., payable three months from this date, I undertake to share with you any loss or liability you may incur in respect of such bill." The bill was dated the 25th of October, and not the 24th, and was payable three months after date. It was not paid at maturity, and after being several times renewed, was at length paid by the plaintiff. In an action brought on the above agreement, it was proved that in a schedule of R's debts made shortly before, a CONTRACT; (C) CoNSTEroiiON op Coktbaots. 127 debt owing to the plaintiff by K of 2,000i. had been intentionally omitted for a purpose not connected with this transaction. The plaintiff was a party to the making of this omiasionj a(id he knew that the schedule had been communicated to the defendant without the omission having been supplied, but nothing was said by the plaintiff to the defendant on the subject either way. The jury found that there was no actual fraud on the part of the plaintiff, and the Court held, that under these circumstances the defendant was not entitled to the verdict ; that the contract was one of indemnity, and not one of suretyship ; and that, the transaction having origi- nated with the defendant, the mere concealment by the plaintiff of the existence of the debt from the defendant was not sufficient to avoid the contract. Way V. Heame, 32 Law J. Rep. (n.s.) C.P. 34 ; 13 Com. B. Rep. N.S. 292. Held, also, that though dated the 25th of October, the bill was sufficiently described as a bill " payable at three months from this date," in an agreement made on the 24th. Ibid. Held, also, that the plaintiff's loss or liability was incurred and the defendant's liability attached, as soon as the first bill came to maturity and was not paid by R ; and that there was nothing in the plain- tiff's subsequent conduct, in renewing the bill from time to time, to deprive him of his right to recover from the defendant half the sum he ultimately was called on to pay. Ibid. (C) CONSTRCOTIOH OF CoNTKAOTS. (a) In general. By an agreement between the plaintiff and the defendant, in consideration of the plaintiff forbear- ing to prosecute a Chancery suit, the defendant promised that he would, out of the first moneys he might receive from W in respect of the defendant's claim on him, arising out of a certain railway con- tract, hand to the plaintiff 500^.; and out of any further moneys he might receive from W in re- spect of the same contract lOi per cent, upon the net amount which he might so from time to time receive, until such per-centage to the plaintiff should amount to l,300i., when all further payments by the defendant were to cease, it being agreed that the defendant would not compromise with W without providing for the plaintiff the 1,300?., or so much of it as might remain due to him. No more than one instalment having been received by the defen- dant from W in respect of the said railway con- tract, the plaintiff was held to be not entitled to any per-centage ultra the 500J. due on that instalment, although such instalment exceeded 500/. Cochrane V. Green, 30 Law J. Rep. (n.s.) C.P. 97; 9 Com. B. Rep. N.S. 448. A judgment debt recovered in the name of a trustee, which if recovered in the name of the cestui que trust would have been a good set-off in law against the plaintiff's demand, may be pleaded by way of equitable set-off in answer to the demand. Ibid. It is no answer to an action for a debt of 300/. to plead that the plaintiff was indebted to one S in 300/., and that the defendant, at the request of the plaintiff, agreed with S to pay S the 300/., and S agreed to accept the defendant as his debtor, instead of the plaintiff, for the 300/., and that the defen- dant was still liable to pay the same to S, as such plea does not shew any discharge of the plaintiff's debt to S. Ibid. The defendants, a public company, employed the plaintiff, a broker, to dispose of their shares on the terms that he should be paid 100/. down, and 400/. in addition, upon the allotment of the whole of the shares of the company. The plaintiff disposed of a considerable number of shares, when the defendants wound up the company ; — Held, by the Court, which had power to draw inferences of fact, that the plaintiff was prevented earning the 400/. by the act of the company, and was therefore entitled to recover a proportion of the 400/. Inchhald v. the Western Neilgherry Coffee Co. (lAm.J, 34 Law J. Rep. (N.S.) C.P. 15 ; 17 Com. B. Rep. N.S. 733. A contracted to supply to B 1,000 tons of coals, delivered at Rangoon alongside craft, &e., as might be directed by B ; the price to be 46*. per ton, delivered at Rangoon ; payment, one-half of in- voice value by bill at three months on handing bills of lading and policy of insurance to cover the amount, or in cash at 5/. per cent, discount, at A's option ; and the balance in cash on right de- livery ^t Rangoon. A chartered a ship in pursuance of his contract, and shipped on board 1,166 tons of coal, and delivered to B the bill of lading and a policy covering half the invoice price, and B paid the half invoice price. On the voyage the ship be- came disabled, and the master chartered another vessel and trans-shipped 850 tons of the coal on board her at 45s. per ton freight to Rangoon. On arrival at Rangoon the master of this latter vessel offered the coals to B's agent on payment of the 45s. freight ; this offer was refused, and the coals were afterwards put up for sale by auction by direc- tion of the master, and were bona fide purchased by B's agent for B at 25s. per ton, that being the best price that could be obtained for them there : — Held, by CocJcbitrn, C.J., and Wightman, J., that by the contract, though the property in the coals passed to B on the shipment and delivery of the shipping documents, A was bound to deliver them at Rangoon, and not having delivered any (as the purchase by B's agent was no delivery under the contract) he was liable to refund to B the half which he had received of the purchase- money, and for any damages arising from the non-delivery. By EUtchbum, J., and Mellor, J,, that the property in the coals passed to B, the right of A to the second half of the price being contin- gent on the right delivery at Rangoon; and that therefore, under the circumstances that had occurred, neither party had any right of action against the other. The Calcutta and Burmah Steam Naviga- tion Co. (Lim.) V. De Mattos, 32 Law J. Rep. (n.s.) Q.B. 322. Plaintiffs bought of the defendant " 300 tons old bridge rails at 51. 14s. M. per ton delivered at Ham- burgh, cost, freight and insurance, payment by net cash in London, less freight, upon handing bill of lading and policy of insurance ; a dock company's weight-note or captain's signature for weight to be taken by buyers as a voucher for the quantity shipped: — Held, in the Court of Exchequer (and affirmed in the Exchequer Chamber), that according to the true construction of the contract, the defen- dant did not undertake to deliver the iron at Ham- 128 CONTRACT; (C) Construction of Contracts. burgh, but that when he put it on board a ship bound for that place and handed to the plaintiffs the policy of insurance and other documents, his liability ceased and the goods were at the risk of the purchasers. TregdUs v. SeweU, 7 Hurls. & N. 574. A, a clerical agent, was employed to sell an advowson for B, upon the terms contained in a cir- cular in which it was stipulated that the commission should become payable upon the adjustment of terms between the contracting parties in every in- stance in which any information had been derived from, or any particulars had been given by, or any communication whatsoever had been made from A's office, however and by whomsoever the negotiation might have been conducted, and notwithstanding the business might have been subsequently taken off the books, or the negotiation might have been concluded in consequence of communications previously made from other agencies, or on information otherwise derived, or the principals might have made them- selves liable to pay commission to other agents ; and that no accommodation that might be afforded as to time of payment or advance should retard the pay- ment of commission. A contract of sale having been arranged through A's agency, and duly executed, and a deposit paid on the 14th of October, 1862, the residue of the purchase-money being payable on the 31st of December, — Held, that A was entitled to his commission at all events on the 31st of De- cember, although the full purchase-money had not, for some unexplained reason, then been paid. Lara y. ffUl, 15 Com. B. Eep. N.S. 45. A father by agreement took all his son's property, undertaking to pay his debts: — Held, that in the absence of proof to the contrary, the son was entitled to the surplus, if any. May v. May, 33 Beav. 81. The trustees of a deed of composition executed by a debtor for the benefit of his creditors, under section 192. of the Bankruptcy Act, 1861, and duly regis- tered, — Held, not to be entitled to claim to complete a building contract entered into by the debtor, prior to the date of such deed, where the debtor only con- tracted that he, " his executors and administrators " (omitting " assigns "), would execute the works, the subject of the contract. Knight v. Burgess, 33 Law J. Rep. (N.S.) Chanc. 727. (6) Particular Words. (1) "Forthwith." By indenture of the 15th of May, the plaintiff covenanted with the defendant to procure a ship, to stow on board a certain telegraphic cable then lying at 51 Wharf, to provision and rig the vessel, to pro- vide and pay the crew and workmen, &c., to lay down the cable; and that be, the plaintiff, would per- form the several acts aforesaid and have the ship ready equipped for sea at the Nore on or before the 15th of July, and would proceed forthwith toT and lay down the cable; and if the plaintiff made default in having the ship ready with the cable on board at the Nore by the 15th of July, the defendant might deduct and retain as liquidated damages 202. a week. The defendant covenanted, subject to his right to deduct and retain as liquidated damages, to pay the plaintiff 5,0002., by instalments, that is to say, l.OOOZ., part thereof, on or before the expiration of seven days after the arrival of the ship at M Wharf; 2,000Z., further part, on or before twenty-one days after the arrival of the ship at the wharf ; the re- mainder when the ship should put to sea from the Nore. And it was by the same indenture agreed and declared, that for the true performance of the cove- nants by the plaintiff thereinbefore contained, and for securing the penalties which he might incur under these presents, the plaintiff and two responsible sure- ties should, within ten days of the execution of these presents, give and execute to the defendant, his exe- cutors and administrators, a bond in the penal sum of 5,0002.; and for the due performance of the cove- nants on the part of the defendant thereinbefore contained, the defendant and two responsible sureties should, within ten days from the execution of these pre- sents, give and execute to the plaintiff, his executors and administrators, a bond in the penal sum of 5,0002. — It was held, by the Court of Exchequer Chamber, that the giving of the bond with sureties by the plain- tiff to the defendant was a condition precedent to his right to recover against the defendant for not per- forming his part of the contract with relation to stow- ing the cable and paying the money ; and this de- cision was affirmed by the House of Lords, on appeal, and it was also held, that the plaintiff was not released from his obligation to give a bond by reason of the defendant not having given a bond. Moberts v. Breit (House of Lords), 34 Law J. Rep. (N.a.) C.P. 241. "Forthwith" held not to mean "immediately." Ibid. (2) "Russian ilacTc." By an agreement between A and B, it was stipulated that A should receive half the profits arising from the sales of an article called " Russian black," manu- factured by him from the produce of certain quarries of B: — Held, that A was not entitled to claim any- thing in respect of " Russian black" not sold as such, but used by B, in the proportion of about one-third, mixed with cement manufactured and sold by him. Fullmood v.Akerman, 11 Com. B. Rep. N.S. 737. (3) "Ship." The plaintiffs were owners of ship W and one M of ship G, which was insured in two companies, one of which was represented by the defendants, the other by M himself. The G ran into the W, and was arrested in the Admiralty Court ; and an agreement was entered into by the plaintiffs, M, and the insurers, that the plaintiffs should release the ship, and the other parties should pay " the amount of damage which the ship W had received from the collision," and that in case of dispute about " the amount of damages claimed by Heard Brothers (the plaintiffs) by reason of the collision," the matter should be re- ferred: — Held, that "ship " in the first clause must be read " owner of ship," and that the plaintiffs were entitled to recover for loss of profits as they would have done in the Admiralty Court. Heard v. Hol- man, 34 Law J. Eep. (n.s.) C.P. 239; 19 Com. B. Rep. N.S. 1. (4) " Three months' till." Goods were sold upon the following terms: — "22. 10s. per cent., or three months' hill," which was explained to mean cash at the expiration of the month succeeding the current month, deducting a discount of 22. lOs. per cent., or, at the buyer's option, a bUl at three months from the same period. CONTRACT; (C) Constbdotion op Conteacts. 129 The buyer having refused to accept a bill at the end of the second month, — Held, that the seller might at once sue him for goods sold and delivered {con. cessit solvere in the Mayor's Court, London), and was not bound to wait the additional three months, ' V. Weir, 16 Com. B. Eep. N.S. 471. (c) Promise implied ly Law. The plaintiff agreed to let, and the defendants to take, for one year, at a stipulated yearly rental, certain works and buildings, and the plaintiff fur- ther agreed to supply to the defendants the whole of the chlorine still-waete as it came from the still, neither adding to nor taking anything from the same, at the rate of 2s. M. for every 21 owt. of waste so supplied, with the understanding that the defendants were to have the option of taking a lease for seven or fourteen years at the same rent, if they should feel disposed so to do, within three months from the date of the agreement ; and the plaintiff agreed not to use or injure or part with any of the still-waste except to the defendants so long as they should hold the said works, the defendants to satisfy the plaintiff as to the payment of the rent, and account for still- waste previously to entering upon operations: — Held, that under this agreement the defendants were bound to take the whole of the chlorine still-waste during the year, and that it was no answer to an action for not accepting it, that the manufacture in which it was used failed and was discontinued, and the chlorine still- iva«te proved useless, and was no longer necessary for the manufacture. Bealey v. Stua/H, 31 Law J. Rep. (n.s.) Exch. 281 j 7 Hurls. & N. 753. The plaintiffs — who had contracted with the East India Company to carry out some troops for them in their ship to Bombay, and to supply the troops with provisions and stores to be used and consumed during the voyage — entered into a contract with the defendant, a provision-dealer, by which the defen- dant engaged to supply the plaintiffs" ship with troop stores " guaranteed to pass survey of the East India Company's officers": — Held, that this express gua- rantee did not exclude the guarantee which, in the absence of an express stipulation, would have been implied by law on a contract to supply, that the stores should be reasonably fit for the purpose of being used and consumed by the troops during the voyage. Bigge v. Parhinson (Ex. Ch.), 31 Law J. Eep. (if.a.) Exch. 301 ; 7 Hurls. & N. 955. (d) Conditional Contracts. By a written agreement the defenclant and B, who were in partnership as stone-merchants, appointed the plaintiff their sole London agent for a period of four years and a half,, and the plaintiff agreed to undertake the appointment and duty upon the terms that B and the defendant should pay the plaintiff 22. 10«. per cent, on all accounts received by them for stone sold by the plaintiff or supplied by B and the defendant, to any person originally introduced to them by the plaintiff; that the plaintiff should pay his travelling expenses, and attend upon any business in London of B and the defendant, when required by them, in writing ; that B and the defendant should furnish the plaintiff with invoices for stone shipped by them, and should balance all business transac- tions with the plaintiff, and pay his commission every DiQEST, 1860—65. half year: — Held, by Channell, S., and WiMe, B., (Martin, B., dubitante), that the contract was subject to the condition that all the parties so long lived, and that the agreement did not contemplate the continuance of the agency by the executor after the death of the agent, or by the surviving partner after the death of either member of the firm, and therefore that a declaration on this agreement, alleg- ing as a breach that the defendant would not employ the plaintiff as his sole agent for the whole period of four years and a half, and would not execute orders for stone procured by the plaintiff as agent, did not disclose any cause of action. TasJcer v. Shepherd, 30 Law J. Rep. (n.s.) Exch. 207 ; 6 Hurls. & N. 575. By an agreement between the plaintiffs, aSolvency Guarantee Company, and^the defendants, in consi- deration of a certain sum, it was agreed that the funds of the company should be subject and liable to make good to the defendants the loss occasioned to them during the term of two years by reason of any of the purchasers of their goods becoming bankrupt, &c., within such time, and during any future period in respect whereof the company should consent to receive further payments, but subject to certain conditions indorsed on the instrument. One of the conditions indorsed was, that all guaranties, whatever might be the original term, should, from the expiration of such original term, be treated as a renewed contract of the like nature and conditions, unless either the member interested therein or the board of directors should give two calendar months' notice of an intention not to renew the same : — Held, that the renewed con- tract was not itself to be deemed to contain this par- ticular condition as to renewal, and that therefore, even in the absence of notice, the contract did not extend beyond one renewal. The Solvency Mui/aal Guarantee Company v. Froa/ne, 31 Law J. Rep. (n.3.) Exch. 193; 7 Hurls. & N. 5. The agreement was signed by three directors, on behalf of the company, and by the defendants, and also sealed with the company's seal: — Held, that the seal was only a statutory authentication of the con- tract, and that the instrument declared on was there- fore not a deed, and that consequently the agreement might be rescinded by parol. Ibid. By the conditions attached to a contract of indem- nity against losses in trade, the guarantie became void on the death or retirement from trade of the person guaranteed : — Held, that this condition ap- plied to the death or retirement of one of two partners guaranteed ; and therefore that a plea alleging such death of the partner was an answer to an action against the co- partner by the guarantors for the subscription or annual payments agreed to be paid by the assured. The Solvency Mutual Gua/rcmtee Co. V. Freemam,, 31 Law J. Rep. (h.s.) Exch. 197 ; 7 Hurls. & N..17. The defendant pleaded, on equitable grounds, to an action for such payments, and also for a certain increased premium, that by certain printed rules and regulations delivered to him as the rules and regula- tions under and subject to which the agreement for guarantie was to be made, the amount of subscrip- tion payable by the assured was to be increased at a certain specified per-centage rate, according to the amount of admitted claims in the previous year, and that the defendant entered into the contract upon the basis and faith of such rules and regulations; S 130 CONTRACT; (C) Constbuotion of Coktracts. but that the contiact did not contain them, and other and much less advantageous rules, with other rates, were substituted, of which the defendant had no notice : — Held, that the plea was bad, as the facts stated would not relieve the defendant from the performance of the contract, but would only entitle him to have it reformed. Ibid. (e) Condition Precedent. With a view to the transfer to the defendant of all the interest in the business of a loan and discount society, by an agreement made in 1856, between the defendant and the plaintiff and W, in consideration of 877^- Us., to be paid by the defendant on the 1st of July, 1860, viz., to the plaintiff 69/. 14s. for cash advanced to the society ; 480/. for sixty shares held by him, and iOl. for five shares belonging to him, originally held by one T; to W 160Z. for twenty shares ; and to G 120Z. for fifteen shares, ' with interest half-yearly, the plaintiff and W agreed that the entire property of the society, and all moneys standing to the credit of the society should, from the date of the agreement, be vested in and belong to and be held by the defendant, and all securities given tip to him on the signing of the agreement. With the exception of shares already held by the defendant, the above were all the shares in the society. The five shares originally held by T, and the fifteen shares held by 6, were never vested in the defendant, T and G repudiating the contract: — Held, that the defendant, having accepted per- formance of the rest of the contract, could not set up the non-delivery of T and G's shares as an answer to an action by the plaintiff for his part of the 877^. 14s.; and, therefore, to a declaration by the plaintiff setting out the agreement and averring per- formance of conditions precedent, a plea that the defendant entered into the contract on the faith and in consideration of all the shares in the society being vested in him, and that neither the plaintiff nor W were ready or willing or able to vest T and G's shares, and T and G repudiated the contract, whereby the consideration for the defendant's enter- ing into the contract failed, was held bad. White v. Beeton, 30 Law J. Rep. (n.s.) Exch. 373 ; 7 Hurls. & N. 42. Where a sum of money is agreed to be paid for work and materials upon the certificate of a third person, if such third person in collusion with and by the procurement of the person who has agreed to pay improperly neglects to certify, an action at law may be maintained against the latter for the agreed sum, notwithstanding the certificate was made a condition precedent to the payment of the money. Batterbwry V. Vyse, 32 Law J. Rep. (n.s.) Exch. 177; 2 Hurls. & C. 42. A declaration, after setting out a contract by which the plaintiff, a builder, agreed with the defendant to do work to the satisfaction of the architect and to receive payment upon the certificate of the architect, no payment to be considered due unless upon pro- duction of the architect's certificate, averred perform- ance by the plaintiff of all things to entitle him to the certificate, and that he had completed the work to the satisfaction of the architect ; and alleged as a breach that the architect un&irly and improperly neglected to certify, and so neglected in collusion with the defendant and by his procurement, by means of which the plaintiff had been unable to obtain payment of a balance due to him : — Held, that the words " collusion" and " procurement" imparted fraud, and that the declaration disclosed a good cause of action. Ibid. By a building contract the defendant agreed to pay the plaintiff, a builder, a specified sum for certain works, provided the defendant's architect should before such payment certify that the works had been carried out to his satisfaction : — Held, that to entitle the plaintiff to payment it was not neces- sary that the architect should certify in writing; but it was sufficient if he did so verbally. Roberts v. WatUns, 32 Law J. Eep. (n.s.) C.P. 291; 14 Com. B. Rep. N.S. 592. By an agreement between the plaintiffs, described as the engineer and solicitors of an intended com- pany to be incorporated by act of parliament, of the one part, and the defendants, as contractors, of the other, it was agreed that, provided the act was obtained, the defendants should carry out the works at a certain price, and that in the event of the act not being obtained, the defendants should pay a sum, not exceeding 300/., towards the expenses in endea- vouring to obtain the act. The plaintiffs expended 300/. in endeavouring to obtain the act, but then abandoned the prosecution of the bill on the ground that no one would supply them with funds. The defendants thereupon employed other solicitors, and expended above 300/. in trying to get the act passed, but ultimately failed. In an action by the plaintiffs to recover from the defendants the 300/., — Held, that it was a condition precedent to the plaintiff's right to recover, that they should have used every reasonable exertion to obtain the act ; and that having stopped merely from want of funds, they had no claim on the defendants. Leakey v. Lucas (Ex. Ch.), 32LawJ.Rep. (n.s.) C.P. 289; 14 Com. B. Rep. N.S. 491. A declaration, after setting out an agreement by which the plaintiffs contracted with the defendants to do certain works for a certain sum to be paid them by the defendants on production by the plain- tiffs of the certificate of the surveyor of the defendants that the works had been efficiently performed to his satisfaction, averred that, although all things had been done by the plaintiffs to entitle them to such certificate, yet the said surveyor had not given such certificate, but had wrongfully and improperly neg- lected and refused so to do, and the defendants had not paid the money payable on such certificate: — Held, on demurrer, bad as not disclosing anv cause of action against the defendants. Ql/mke v. WaXsom, 34 Law J. Rep. (n.s.) C.P. 148 ; 18 Com. B. Rep. N.S. 278. In a contract to sell "600 bales of cotton to arrive in Liverpool per ship or ships from Calcutta," there was the following stipulation : " the cotton to be taken from the quay ; customary allowances of tare and draft, and the invoice to be dated from date of delivery of last bale": — Held, that the stipu- lation, " the cotton to be taken from the quay," 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. Neill v. y/hiimortli, 34 Law J. Rep. (n.s.) C.P. 155 ; 18 Com. B. Rep. N.S. 435. A lease for years contained a covenant on the part CONTRACT; (C) Construction of Contracts. 131 of the lessor, that if the lessee should be desirous at the expiration of the term of purchasing the premises, and should give to the lessor six calendar months' notice in writing of such desire, and should pay to him 2,000^., the lessor would sell and convey the premises to the lessee ; the expense of the prepara- tion and verification of the abstract to be borne by the lessee, he expressly accepting the title. The lessee gave notice, but did not pay the 2,0002, : — Held, reversing a decree of the Master of the Rolls for specific performance, that the payment of the 2,000Z. was a condition precedent to the right of purchase, and that the money not having been paid, no binding contract arose. Weston v. Collins^ 34 Law J. Eep. (n.s.) Chanc. 353. (/) Time of the Essence of the Contract. T by deed covenanted to pay a composition of 6s. 8d. in the pound to all the creditors of his father and grandfather who should execute the deed within a given time, and charged certain estates with the amount of the composition. The deed con- tained a special provision that no creditor not executing within the prescribed time should be admitted to the benefit thereof. After the death of T, a bill was filed, by the trustees of the deed, praying that the trusts might be carried into execution by the Court. Various creditors who had not executed the deed within the given time, claimed to be entitled to the benefit of it: — Held, that in the absence of fraud, creditors who had executed the deed within the time prescribed were alone entitled to the benefit of it; that creditors were not entitled to any notice of the deed ; that time was of the essence of the contract ; and that as against creditors who had executed the deed neither T nor the trustees could waive actual execution of the deed within the prescribed period, and that any claim founded on allegation of fraud must be asserted by a distinct suit. Williams v. Mosiyn, 33 Law J. Rep. (n.s.) Chanc. 54. By an agreement entered into between the plaintiff, a landowner, and the defendants, a railway company, the defendants were to take portions of the plaintiff's lands, and it was agreed that they should make and maintain, for the convenience of the plaintiff, so many crossings, and of such kinds, as C, the plaintifTs surveyor, should direct and notify in writing *' within one month after the company's obtaining possession of the land. " In December 1 868 the com pany entered into possession, but no award or notification of the works required was made until March following. In the mean time the company had made considerable progress in constructing their line, and they resisted the plaintiff's demand for the works notified. The plaintiff thereupon filed his bill claiming to have the notified works executed and performed. It was proved that in settling the terms of the agreement, the com- pany had stipulated for a reduction from two months, the period originally proposed, to one month of the time within which C should notify r^Held, that the stipulation as to time must be regarded as of the essence of the contract ; and the Court considering that there was no sufficient evidence of any agree- ment to enlarge the time, specific performance of the works mentioned in the award or notification was refused. The Earl of Dmrnley v. the London, Ghat- ham amd Dmer Bail. Co., 33 Law J. Rep. (n.s.) Chanc. 9; 1 De Gex, J. & S. 204. The bill prayed specific performance of the agree- ment generally, but the case put forward by the plaintiff rested simply upon the award. At the bar the plaintiff claimed relief upon the footing of the agreement independently of the award : — Held, that no such relief could be granted, since the defendants must necessarily have been led to suppose that the plaintiff relied upon the award only ; but leave was given to amend. Ibid. (g) When for the Oov/rt, . Goods were put on board a ship consigned for Calcutta at 39s. per ton, " payable in London" : — Held, that it was for the jury to say from the sur- rounding circumstances whether the contract was a contract for "freight," contingent on the ship's arrival at her destination, or for a sum payable on the receipt of the goods on board her. lAdgett v. Perrin, 11 Com. B. Rep. N.S. 362. By a contract for the purchase of a cargo of wheat afloat, to be supplied at 50s. per quarter, including freight and insurance, payment was to be made by " cash in London in exchange for ' shipping docu- ments." The seller delivered to the purchaser, with other shipping documents, a provisional invoice which estimated the cargo of wheat, calculated at 50s. a quarter, at 4,626^.; the freight at 1,0012. He also delivered a policy of insurance on the same cargo of wheat, but valued at 3,6002. only. In an action by the purchaser to recover the price agreed to be paid, the defence was, that the policy was of an insufficient amount and was not a sufficient shipping document: — Held, that it was not a question of law, but a question of fact for the jury, whether, under all the circumstances, the policy was a sufficient shipping document within the meaning of the contract. Tan- vaco V. Lucas (Ex. Ch.), 31 Law J. Rep. (n.s.) CI.B. 296; 3Best&S. 89. (h) Extras. The plaintiff had contracted with the defendant, who was the agent of the Portuguese government, within a certain time to build a ship complete and ready for sea in accordance with the regulations at Lloyd's ; and the ship was to be built and con- structed with the best materials of all kinds, and as prescribed by Table A of Lloyd's Register of ships of the class A 1. thirteen years, for which class the ship was to be constructed as to materials. And further,theship was to be fitted, formed and equipped in manner similar in all respects to that which is prac- tised with ships of the same class in Her Majesty's Navy under contracts with the Admiralty. And it was agreed that the purchase-money or contract price therein named should be inclusive of all charges for the said ship, finished and fitted perfectly in every respect, and that no charges should be demanded for extras, but any additions which might be made by order in writing of the defendant's agent should be paid for at a price to be previously agreed upon in writing. During the progress of the building of the ship various additions and alterations in the details of construction were made by the direction of the defendant's agent, but no written order for them was given, as required by the contract. When the ship was nearly completed, the defendant's agent gave notice to the plaintiff that he should require him to supply a quantity of articles for the use of the ship, 132 CONTRACT; (C) CoNSTBtTOTioif op Contracts. which the plaintiff considered he was not, under the contract, bound to do. These articles consisted of an additional quantity of spare as well as standing rigging, spare masts, yards, sails, sailing and other gear, spare anchors, cables, cordage and other articles, with all of which similar vessels in Her Majesty's Navy are usually supplied when commissioned for active service. With respect to vessels built for Her Majesty's Navy by private ship-builders under con- tract with the Admiralty, the invariable course of proceeding is for the shipbuilder to build and deliver the hull only, with certain hull fittings and fixtures, but all the rigging, masts, cables, boats and other movablfe things are furnished under Admiralty war- rants from the government stores. The Portuguese government being very anxious that the ship should be delivered as soon as possible, the defendant's agent requested that all the articles usually supplied to ships of the same class as that now building under Admiralty warrants should be supplied by the plain- tifi^, without prejudice to the question whether the plaintiff" was bound to supply them under his contract or not. The plaintiff accordingly supplied these articles: — Held, that for alterations and additions during the performance of the contract the plaintiff could not recoyer, not being able to shew written orders for the same in accordance with the provisions of the contract ; but that as between the plaintiff and the defendant, so far as related to the articles which the plaintiff disputed his liability to supply, and which were supplied by him without prejudice to the question of his liability, they must be taken to have been supplied ajter the contract was completed and the vessel delivered, and that for these, there- fore, the defendant had incurred a liability wholly independent of the contract. Rus^ll v. Bandewa, 32 Law J. Rep. (n.s.) C.P. 68 ; 13 Com. B. Rep. N.S. 149. Held, also, per Byles, J. that these disputed articles were so entirely dehors the contract, that the plaintiff might recover for them, even if they were to be considered as delivered during the execu- tion of the contract. Ibid. By the contract for building the vessel it was pro- vided that if the said ship should not be delivered complete on a certain day, a penalty of 51. a day should be paid by the plaintiff to the defendant as liquidated damages; but that if the ship should not be so delivered for any cause not under the control of the plaintiff, the same to be proved to the satisfac- tion of the defendant's agent, and to be certified by him in writing, then the said penalty should not be enforced for such number of days or for such time as the defendant's agent should in such certificate name. The ship was not delivered till long after the time appointed, but a large portion of that delay was occasioned by the interference of the defendant or his agents in the course of the performance of the contract: — Held, that, under these circumstances, no penalties were recoverable by the defendant, and that therefore none could be set off against the plain- tiff's claim. Ibid. A agreed to do for B & Co. all the woodwork on an iron ship which B & Co. were building for M & Co., according to a certain tender, the whole to be completed for 3,800Z. The contract, or tender, con- tained the following clause, — " Any important work not mentioned in this tender that may be required to be done by the owners, to be paid for by them in addition to the amount herein specified." The work was undertaken by A for B & Co. upon the faith of guarantee by C, as follows; — " In consideration of your contracting with Messrs. B & Co. for the wood- work of an iron ship now building by them for Messrs. M & Co., we hereby guarantee the payment to you according to the contract." The word "important" in the contract was inserted by A, with the consent of B & Co., after the guarantie was signed by C: — Held, that the contract bound B & Co. for extra work done, they being the persons referred to therein as *' the owners " ; and that the insertion of the word " important " had no material effect upon the habi- lity of C under the guarantie. Affirmed in the Ex^ chequer Chamber. Andrews v. Lavjrence, 19 Com. B. Rep. N.S. 768. (D) Rescissioit, Determination, and Abandon- ment OP Contracts. The defendants agreed to sell and the plaintiffs agreed to purchase certain land, the defendants to deliver an abstract of the title, and the plaintiffs within twenty-one days of the delivery thereof to return their objections to and requisitions on the title ; in case of any objections or requisitions being delivered with which they were unable or unwilling to comply, the defendants to have the option to rescind the contract and return the deposit-money without interest, cost or other compensation, " not- withstanding any attempt made to remove or comply with any such objection or requisition." The sum ot 285Z. was deposited by the plaintiffs in the hands of a third person as a security for the contract being performed on their part, and the day named for the completion of the purchase was the 29th of October. The defendants delivered a proper abstract on the 6th of September, and on the 22nd of September the plaintiffs delivered their objections and requisi- tions. The replies of the defendants were dehvered on the 4th of November. On the 29th of Novem- ber the plaintiffs claimed and received the deposit from the person by whom it was held. On the 11th of Decemberthe defendants delivered to the plaintiffs a noticeof theirintention to rescind the contract,upon which the plaintiffs brought this action against the defendants for not completing their agreement ; — Held, that the defendants had s right to rescind the contract, and that they were not bound to do so before the 29th of October. The Vestry of Shore- ditch v. Hughes, 33 Law J. Rep. (n.s.) C.P. 349 ; 17 Com. B. Rep. N.S. 137. The plaintiff agreed with the defendant to empty a mill-pool for 5d. a cubic yard of mud, the ad- measurement of the mud removed to be settled by N, and if any dispute arose, the dispute to be referred to N, to be by him decided : — Held, that although the former part of the agreement was not revocable, the latter part was revocable. Mills v. Bayley, 32 Law J. Rep. (n.s.) Exch. 179 ; 2 Hurls. & C. 36. The declaration, after setting out the above agree- ment, stated that the plaintiff afterwards alleged that he had removed a part of the mud, and that while proceeding with the removal of the remainder, the defendant wrongfully caused water to flow into the pool, and a dispute having arisen between the plain- tiff and the defendant touching those allegations, the plaintiff required N, pursuant to the agreement, to CONTRACT; (E) Breach op Comtkaot. 133 determine their truth, and if he should find them proved, to determine further the admeasurement of the mud and the damage sustained by the plaintiff by reason of the committal by the defendant of such aforesaid grievance. Averment, that N awarded and adjudged that the plaintiff had removed a part of the mud,trnd that the defendant should pay the plaintiff SI. 6s. 8d. in respect of it, and further that N awarded and adjudged that the defendant wrongfully caused water to flow into the pool, and that in respect of the damage so occasioned to the plaintiff the defendant should pay the plaintiff 102. 2>. Id., and alleged as a breach the non-payment. The defendant pleaded that before the making of the award he revoked the submission and reference to arbitration and the authority of N as arbitrator: — Held, that the plea was an answer to the action. Ibid. A contracted to sell to B a specific cargo of wheat, described in the bought and sold note as "shipped per D M, as per bill of lading dated September or October," and which was all on board at the date of the contract: — Held, that this did not necessarily entitle the buyer to rescind the contract onits turning out that all the wheat was not shipped before the bill of lading was given. Gattomo v. Adams, 1 2 Com. B. Eep. N.S. 560. By a contract of work, as to certain excavations to be done at so much per cubic foot by the plain- tiff for the defendants, the plaintiff agreed to execute the work to the satisfaction of the defendants or their agent, provided that if the works should not proceed as rapidly and satisfactorily as required by the de- fendants or their agent, they should have full power to enter upon and take possession of the works, and pay whatever number of men should be left unpaid by the plaintiff, and might set to work whatever number of men they might consider necessary ; and the amount so paid, and the costs of the men so set to work, should be deducted from whatever money should be due to the plaintiff. To a declaration for work and labour, the defendants pleaded that the work had not proceeded as rapidly and satis- factorily as they and their agent required, and that they had therefore acted on the proviso, claiming to deduct the costs so incurred from the plaintiff's de- mand ; to which the plaintiff replied that the works did proceed as rapidly and satisfactorily as the de- fendants reasonably and properly could require, and that the defendants and their agent unreasonably, improperly and capriciously required the work to proceed as in the plea alleged : — Held, that the in- tention to be collected from the agreement was, that the defendants, if dissatisfied, whether with or with- out sufficient reason, should have the absolute power to'put on additional hands and get the work done, and deduct the cost from the contract price payable to the plaintiff ; and, therefore, that so long as the defendants were acting ionafide under an honest sense of dissatisfaction they were entitled to insist on the proviso ; and consequently that the replication, which only alleged that the dissatisfaction was un- reasonable and capricious, and did not allege mala fides, was no answer to the plea. Stadhcurd v. Lee, 32 Law J. Rep. (if.s.) Q.B. 75; 3 Best & S. 364. A contract was made, on the 9th of July, by the agents of A and B, for the carriage of A's goods by B's- vessel from London to Kus'tendjiff, the ship- ment of which goods was to commence oa the Ist of August. On the 21st of July B denied the autho- rity of his agent to make such contract, whereupon A*s attorneys gave B a written formal notice that A was ready to perform his part of the contract, and that he would hold B responsible if he refused to perform his part. In reply to this B wrote, denying the existence Of such contract and tendering another contract for the acceptance of A. This was an- swered on the 24th of July by a letter from A's attorneys, stating that A declined to sign any other contract than the one concluded by the agents, and that he held B responsible for the consequences. Between the said 24th of July and Ist of August A entered into a treaty with to take A's goods to Kustendjie in one of C's vessels ; but the contract, which was the result of such treaty, was only finally ' concluded between A and C on the 2nd of August, and on the 1st of August B informed A that he was ready to receive the goods on board his vessel : — ■■ Held, that there had been an express renunciation of the contract by B; and that, upon the above facts, A was entitled to sue B for not receiving the goods according to the contract. The Danube and Black Sea Rail. Go. v. Xenos, 31 Law J. Rep. (k.s.) C.P. 84; 11 Com. B. Rep. N.S. 152. Held, also, that A. was not liable in a cross-action by B for damages for not shipping the goods on board B's vessel ; and that a plea, in such last action, of discharge by B, was proved by the above evidence of B's renunciation of the contract. Ibid. P agreed to purchase from K a patent for purify- ing paraffine, and to work it during fourteen years, '' in case it could be so long worked, at a profit," and to pay a royalty of one-third of the difference be- tween the market price of crude parafiine and the price it sold at. It turned out, that although it could be worked at a profit, yet, deducting the royalty reserved, there would be a loss: — Held, that the agreement was at an end. Kernot v. Potter; PoUer V. Eernot, 30 Beav. 343. (E) Beeach op Conteaot. It is no answer to an action for breach of an agreement to enter into partnership with the plain- tiff that, after the agreement, and before breach, the defendant discovered that the plaintiff had, before the making of the agreement, acted with fraud and dishonesty towards a former partner in the conduct of a partnership business, and that such fraudulent and dishonest acts were unknown to the defendant at the time of his entering into the said agreement. Andrewes v. Owrstin, 31 Law J. Rep. (n.s.) C.P. 15; 10 Com. B. Rep. N.S. 444. On the 9th of July B, by his agent, contracted to carry goods for A by his ship, the shipment to com- mence on the Ist of August. On the 21st of July B wrote to A denying the authority of his agent to make the contract. A answered that he should hold B responsible for breach of contract, and that if he did not next day withdraw his letter A would make other arrangements for carrying the goods. B reite- rated that there was no contract made, and proposed another contract, and stated that if that was not acceded to he should send his ship on another voy- age. On this A made arrangements with C to carry his goods, but did not sign any contract with C until the 2nd of August. On the 1st of August B wrote to A stating that the ship was ready to receive A's 134 CONTRACT; (E) Beeach op Contract. goods, but A declined then to send them : — Held, that B having absolutely refused to perform the contract before the time for performance came, it was at the option of A to treat that refusal as a breach of contract ; that A might sue B for the damage received by such breach ; and that B had no cause of action against A for the refusal to send the goods by B's ship. The Danube and Black Sea Rail, &c. Co. V. Xenoi (Ex. Ch.), 31 Law J. Rep. (N.s.) C.P. 284; 13 Com. B. Rep. N.S. 825. The defendants agreed to let certain gardens and music-hall to the plaintiff, on four specified days to come, for the purpose of giving a series of concerts, at and for a specified rent for each of the said days. The defendants were to provide a band of music and certain specified entertainments, and to issue adver- tisements of the entertainments. The plaintiffs were to pay 100/. in the evening of each of the said days, to receive and take all the money paid by persons entering the gardens, and to provide the necessary artistes for the entertainments. After the agreement was entered into, and before the day arrived for the first concert, the music-hall was accidentally destroyed by fire : — Held, that as the existence of the hall was necessary for the perform- ance of the contract, the defendants were excused from liability in respect of its non-performance, and that no action would lie against them. Taylor v. Caldwell, 32 Law J. Rep. (n.s.) Q.B. 16i; 3 Best & S. 826. An instrument is not a demise, although it con- tain the usual words, if its contents shew that the parties did not intend it to operate as a demise. Ibid. Declaration on a contract, by which the plaintiff agreed to sell and the defendant to purchase as many of the plaintilTs gas coals equal to sample as could be carried from S to L in one steam-vessel during nine months, the vessel to be sent by the defendant. Breach, that the defendant did not and would not send a vessel, and would not accept the cargoes of coals as he ought. Pleas, first, that before any breach by the defendant, the plaintiff broke his con- tract by delivering coal which was no part of it gas coal equal to sample ; upon which the defendant refused to fetch or accept any more. Secondly, that before any breach by the defendant, the plaintiff broke his contract by detaining the defendant's vessel an undue and unreasonable time; upon which the defendant refused to fetch or receive any more of the coal : — Held, that neither of the pleas was an answer to the declaration. Jonassohn v. Toung, 32 Law J. Rep. (n.s.) Q.B. 385 ; 4 Best & S. 296. An action will he for the breach of a written con- tract, by which A, for a valuable consideration, agrees with B that B may dig and carry away cinders from a cinder-tip forming part of A's land, though the contract is not under seal. Smart v. Jonet and others, 33 Law J. Rep. (n.s.) C.P. 154 ; 15 Com. B. Rep. N.S. 717. A contract for the sale of cotton of a given quality is not performed on the part of the seller by a tender of a larger quantity, out of which the buyer is required to select those bales which answer the description of the cotton contracted for. Rylomda v. Ereitman, 19 Com. B. Rep. N.S. 361. The defendants being employed as agents for the plaintiffs (a foreign company) to negotiate sales of candles for them in this country, conveyed to them an order from one S for 2,500 cases, to be delivered in London " free on board export ship: H. 10s. per cent, discount against bill at three days'sight, goods, invoice, and draft for acceptance to be sent to us." The plaintiffs did not in terms accept this proposal, but wrote to the defendants, on the 19th of June, as follows: — " Les informations sur S sont telles que nousne pouvons lui livrer les 2,800 caissesque centre connaissement. Si vous voulez, nous vous enverrons les connaissements, et vous ne les lui d^livrerez que centre payement." The defendants informed S that the plaintiffs accepted the order on condition that he handed them (the defendants) a cheque in exchange for the bill of lading ; and to this S assented, pro- vided he was allowed a discount of %l. per cent, instead of 21. 10s., to which the plaintiffs agreed. On the arrival of the goods in London, the defen. dants caused them to be transhipped on board a vessel called the Laurel (named by S), bound for Melbourne, taking the mate's receipt in their own names. They afterwards tendered that document to S and demanded payment, which he promised to make on the following Saturday. S, however, failed to pay according to his promise, and the Laurel sailed to Melbourne with the goods on board. Under the instruction of the Judge, the jury found that the meaning of the plaintiff's letter of the 19th of June was, that the defendants were not to part with the goods out of their possession or control until they had received the price thereof from S: — Held, that the conduct of the defendants amounted to a breach of their contract with the plaintiffs ; that there was no misdirection ; and that the proper measure of damages was the value of the goods. The Stearine Co. v. Heintzmann, 17 Com. B. Rep. N.S. 86. It is not competent to a witness who is called to interpret a foreign document to give an opinion as to its construction ; that is for the Court. Ibid. (F) Evidence to Explain or Vary. The defendant, at the request of M, signed the following order, which M also signed : — " Insert my advertisements for one year in Hotson's (the plain- tiff's) local time-tables, ' The Great Northern,' (and six others, naming them). Charge pep insertion to be ten shillings each monthly book." The plaintiflf's time-tables consisted of separate books, published monthly, one for each of the seven railways. M was not employed by the plaintiff to obtain orders for him, but upon such orders as he obtained, provided they were approved of by the plaintiff and the ad- vertisements inserted, the latter allowed him a com- mission. M brought the defendant's order to the plaintiff, who approved of it, and allowed M his commission, and, having inserted the advertisements for one year in each of the seven books, brought his action to recover from the defendant 70s. per month. At the trial it was proposed to ask the defendant what representations M had made to him to induce him to enter into the written contract ; the defence being that the defendant was liable only for 10s. per month as for one advertisement in one book, and not for 70s. as for seven advertisements in seven books: — Held, that the order having been adopted in terms by the plaintiff, the effect of the evidence was to vary a written contract, and was inadmissible. Hotson v. Browne, 30 Law J. Rep. (n.s.) C. P. 106 ; 9 Com. B. Rep. N.S. 442. CONTRACT; (F) Evidence to Explain oe Vary. 135 Held, also, that if the issue had been whether the defendant was induced to sign the contract by the fraud of the plaintiff's agent (assuming M to have been the plaintiff's agent) the evidence would have been admissible. Ibid. The declaration alleged a contract between the plaintiff and the defendants, that the defendants would tow the plaintiff's smack for reward, to be paid by the plaintiff, and that by the defendants' negligence the plaintiff's smack was damaged. In support of this contract, the plaintiff's evidence was, that he had engaged the master of a steam-tug be- longing to the defendants to tow his smack out of harbour to sea; that the master took the smack in tow, but before getting clear of the harbour cast off the tow-rope, as the plaintiff alleged negligently, and the smack was stranded and damaged ; that he (the plaintiff) had on previous occasions employed the defendants' tug in the same way, and when paying for the services then rendered, had been furnished by the defendants with receipts, on the backs of which were printed notices to the effect that the defendants would not be liable for any loss or damage arising from any supposed negligence of their servants, &c. The plaintiff, on cross-examination, admitted having had these receipts, but denied having read the notices on the backs, or that the effect of such notices had come to his knowledge in any way. On these facts, the Judge nonsuited the plaintiff on the ground that the plaintiff must be taken to have contracted on the terms contained in these printed notices, the defen- dants' servants having no authority to bind them by a contract on any other terms: — Held, making abso- lute a rule for a new trial, that the nonsuit was wrong, for that it was a question for the jury, and ought to have been left to them to say what was the contract between the parties, and whether a knowledge of these notices had been brought home to the plaintiff. Symonds v. Pain, 30 Law J. Rep. (n.s.) Exch. 256 ; 6 Hurls. & N. 709. To a declaration, alleging that by an agreement, dated the 2l8t of July, 1857, the defendants bought of the plaintiff certain bark at 6Z. per ton, and alleging the delivery of the bark and non-payment of the price, the defendants pleaded, as an equitable plea, that the plaintiff was employed to sell, and did sell the bark as agent of C, and on his behalf, at the prices which had been paid in the preceding year for bark, with an additional sum equal to the expenses of carting and ricking the bark in the then present year ; and the plaintiff then represented that the expenses of carting and ricking could not then be correctly ascertained, but that the expenses, added to the price, averaged between 51. and Ql. per ton, and upon such representation, and upon the plain- tiff agreeing that the defendants should be liable to pay only such prices and expenses when they were ascertained, the defendants were induced to and did make the agreement, and they were then requested by the plaintiff to pay the prices and expenses to C. The plea then alleged that the said expenses, added to the said price, averaged only 51. 2s., and that the defendants, before action, paid to C, who then had notice of the premises, the whole amount due, at the said prices, together with the expenses, and C accepted the sum in full discharge and satisfaction of the same and of all liability of the defendants for and in respect of the said bark and expenses, of all which the plaintiff had notice before action: — Held, that the plea was an answer to the action, and that parol evi- dence was admissible to support it. Jtogera v. HaMey, 82 Law J. Rep. (n.s.) Exch. 241 ; 2 Hurls. & C. 227. SemMe — The facts alleged in the plea shewed that no such contract as alleged in the declaration was made by the defendants. Ibid. To a count for not accepting goods described in the contract as " to arrive ex Peerless from Bombay," a plea that the defendants meant another ship of the • same name, which sailed from Bombay two months earlier, and that the plaintiff was not ready to deliver any goods which arrived by that ship, was held on demurrer to be a good answer. Raffles v. Wichel- ham, 33 Law J. Rep. (».s.) Exch. 160 ; 2 Huris. & C. 906. A contract made by the defendants, who were brokers, in their own name, for the purchase of iron for the plaintiffs, was contained in bought and sold notes. The notes differed only in these particulars, that while the bought-note delivered by the brokers to the plaintiffs had the words " Deposit 5s. per ton, brokerage per cent.," the sold-note contained the woriis " Deposit (blank) ; brokerage 10s. per cent.": — Held, that parol evidence was admissible to shew an arrangement between the brokers and the plain- tiffs, by which thej required the latter to pay a deposit of 5s. per ton, and that the apparent variance between the notes, so explained by the usage of the parties, was not material. Kempson v. Boyle, 34 Law J. Rep. (n.s.) Exch. 191 ; 3 Hurls. & C. 763. Where parol evidence has been improperly re- ceived to explain a supposed latent ambiguity in a written document, the Court will decide upon the construction of the instrument without regard to the finding of the jury upon such evidence. The plain- tiff, an engineer, had been professionally concerned in promoting a scheme for converting the Chard Canal into a railway, and three successive acts were obtained for carrying it into effect, but were allowed to expire. The defendant, also an engineer, being ■ desirous of constructing a railway over the same line of country, entered into a negotiation with the plain- tiff, the result of which was reduced into writing and signed by the defendant, as follows : — "Chard Canal and Railway Company. — In consideration of your transferring all the interest you may have in this company, and handing me all the plans, papers and documents in your possession, I hereby undertake to pay you the sum of 600Z., provided my friends succeed in carrying out the undertaking. . The amount, 6002., is to be paid as follows: 300i. on the first portion of the land required for the railway being acquired by the company, and the balance out of the three first payments received by me on th'e foot of construction account." On the following day the defendant wrote upon the document (signing it), at the plaintiff's suggestion, the following : " It is understood that the 600?. herein is to become pay- able on the obtaining of the act, — one moiety in six months, and the residue in three annual instal- ments" : — Held, that the two writings together formed the agreement, and that the defendant's liabiHty to pay the 6002. was contingent upon " the undertak- ing " (whatever that might mean) being carried out by his friends, so that he might be employed as the engineer in the construction of the line. Bruff v. " leare, 13 Com. B. Rep. N.S. 263. 136 CONTRACT— CONVERSION OF ESTATE. Where a contract is to be made out partly by written documents and partly by parol evidence, the whole becomes » question for the jury. A having entered into a contract for the supply of iron rails for Vera Cruz, applied to B & Co., shipowners and brokers, to procure vessels to carry it thither ; where- upon B & Co., on the 19th of November wrote to A, — " We hereby engage to find tonnage for about 5,000 tons of rail to load at M for Vera Cruz, subject to the following conditions, viz., 1,000 tons to be delivered at Vera Cruz in three months from this time, and 1,000 tons per month afterwards," &c. After a long correspondence and several interviews as to the class of vessels to be chartered, and the flag, B & Co., on the 11th of December, wrote to A as follows : " Our engagement to procure tonnage for Vera Cruz is the letter addressed to your Mr. B on the 19th of November, and, in accordance there- with, we are arranging to take up vessels for the first shipment of 1,000 tons. We cannot restrict ourselves to vessels of any particular flag or class, but will of course give a preference to neutral ships of high class." On the 15th of December B & Co. wrote to A saying that they would prefer abandoning the contract altogether. And afterwards, on the same day, A wrote : " We accept your offer of the 19th of November last, coupled with the initialed offer of the 18th. Messrs. E hold us to our contract, and therefore we must hold you to yours and cannot consent to your abandoning it as intimated : " — Held, that these letters did not constitute a complete con- tract, but that recourse must be had to parol evidence, and consequently that it was properly left to the jury to say whether or not a binding contract, as alleged in the declaration, was to be inferred from the whole. Bolckow V. Seymuw, 17 Com. B. Rep. N.S. 107. CONVERSION OF ESTATE. (A) What AMonNTS to a Conversion. (B) Extent of its Operation. (A) What AMonNTS to a Conversion. [See Waste.] A testator gave to his children, in succession, the option of purchasing his real estate, and in the metm- while the rents were to be divided equally between them. Before an option had been exercised, and while some of the children were still infants, a cor- poration purchased part of the property for public improvements, under compulsory parliamentary powers: — Held, that the shares of children who had died infants remained real estate until the option had been exercised, and that in the meanwhile the income of the purchase-money belonged to their heir-at-law. The City of London Improvement Act, ex parte Ha/rdy, 30 Beav. 206. A testator devised several freehold houses to his children specifically, and bequeathed the residue to other parties. After the date of his will a notice was served upon him by a railway company to treat for the purchase of the houses under their act of parliament, but no step was taken under the notice during his lifetime: — Held, that the notice to treat did not entitle the company to specific performance and did not operate as a conversion of the freehold houses into personalty. Saynes v. Haynes, 30 Law J. Eep. (N.S.) Chanc. 578 ; 1 Dr. & S. 426. A testator gave his real and personal estate to persons whom he appointed his executors, in trust in the first place to sell an advowson, and apply the proceeds in discharge of his debts and legacies, and if they should be insufficient then to cut timber to the value of 600?., and if that should not be sufficient then to raise the deficiency by sale or mortgage of his real estate ; and the testator directed his executors to retain their expenses, but he did not expressly declare any trust of his personal estate. A suit was instituted, in which it was decided that the personal estate was primarily liable to the payment of the testator's debts and legacies, and it was now held, upon petition in that suit, that the money raised by sale of the advowson and timber constituted personal and not real estate. Bowra v. Rhodes, 31 Law J. Eep. (n.s.) Chanc. 676. A B being tenant for life of real estate under a marriage settlement and ultimate owner in fee, subject to intervening interests, contracted to sell the estate to a railway company absolutely. A B by his will, made previously to the contract, had speci- fically devised this estate, and there was no general devise in the will. No conveyance having been exe- cuted to the company, they paid interest upon the money to the tenant for life; and upon his death, and failure of all the intervening interests, the com- pany paid the principal and arrears of interest into court under their special act, the clauses of which corresponded with the Lands Clauses Act : — Held, that there was no conversion of the real estate ; that the specific devise failed ; and that the purchase- money descended to the heir of A B ; and the devisees under the will of the heir were now entitled. In re Bagot's Settlement, 81 Law J. Rep. (n.s.) Chanc. 772. A B entered into a verbal agreement to sell certain real estate, but died intestate as to his real estate before the agreement was carried into effect. His heir-at-law took out letters of administration, and upon the request of the purchaser executed a convey- ance of the estate, which recited the parol contract and the desire of the purchaser to have it completed, and the consent of the heir to do so. Upon passing the residuary accounts of A B*s estate the heir, as administrator, gave credit for the sale moneys as *' produce of property contracted to be sold in A B's lifetime, and purchase completed after his death.'* The heir subsequently claimed the proceeds of the sale as arising from property coming to him as heir- at-law : — Held, that although the heir might have repudiated theverbal contract, and claimed the lands as heir and sold them himself in that character, yet as he had in fact adopted and carried out the con- tract of A B the land must be considered as retro- spectively well converted into personal estate, and that the proceeds of sale belonged to the next-of- kin. Prayne v. Taylor, 33 Law J. Rep. (n.s.) Chanc. 228. Commissioners having compulsory powers to pur- chase lands, gave notice to an owner of freeholds of taking them and to treat. He, in reply, stated the price he was willing to take, but he died before the acceptance of the offer. The purchase was after- wards completed at that price : — Held, that the real CONVERSION OF ESTATE— CONVICTION. 137 estate had not been converted into personalty at the death of the owner, and that the purchase-money belonged to his heir-at-law. In re the Battersea Park Acts, in re Arnold, 32 Beav. 591. Freeholds in which a lunatic was interested were taken compulsorily by a company, and the purchase- moneys, which under the act of parliament were liable to be invested in land, were paid into court, and laid out in government funds. The existence of the fund was overlooked, and it went on accumulat- ing. A B, who became tenant in tail in possession, with immediate remainder to her in fee, by her will devised her real estate' and bequeathed " all such capital stock and moneys as she should be possessed of or interested in, at her death, in the public govern- ment or parliamentary funds," but she expressed no further intention as to conversion: — Held, that the principal fund passed as real estate, and the accumu- lations as personal estate. XHxie v. Wright, 32 Beav. 662. Real estate was settled by a marriage settlement, not comprising any personal estate. The tenant for life sold part of the land to a company under the powers of their act, and the proceeds were paid into court. Afterwards the tenant for life, under power in the settlement, appointed by will to his son the whole estate and the purchase-money of the part which had been sold. The son by will disposed of his residuary personal estate, including " all moneys to which I may be entitled under the marriage settlement of my father and mother," and be de- clared that he did not intend by his will to dispose of any real estate. The widow of the tenant for life, who was entitled to a jointure, was still living: — Held {dvhitanie the Lord Justice Knight Bruce), that the will did not dispose of the fund in court. In re Skegg's Settlement, 2 De Gex, J. & S. 533. (B) Extent of its Opekation. Land which, from being impressed with an abso- lute trust for sale, is personal estate in equity, cannot be re-converted into real estate by persons having only a defeasible title to the proceeds of sale. To effect a re-conversion, there must be the concurrence of the absolute owners. Sisson v. Giles, 32 Law J. Rep. (n.b.) Chanc. 606. A testator devised and bequeathed real and per- sonal estate to trustees upon the usual trusts for sale and conversion, and directed them to hold the pro- ceeds in trust for A (a married woman) and B, as tenants in common; and declared that, if either died without leaving issue, the share of the one dying should go to the survivor ; and that, if both died without leaving issue, the property should go to the testator's next-of-kin. The testator died in 1839. In 1851 A and her husband and B executed a deed (not acknowledged by A), by which they professed to discharge the trustees from the trusts of the will, without prejudice to their right to require a convey- ance of the real estate. The rents of the property were received by A and B in moieties until the death of B. B died in 1858 leaving issue. At B's death A was still a married woman : — Held, that there had been no re-conversion, and that the real estate had still the character of money, and was subject to the trusts for sale contained in the will. Ibid. A real estate was devised to two trustees, to sell and divide the produce between A, B, and C. The Digest, 1860—65. trustees being dead, A entered into possession, and received the rents for three and a half years, account- ing to B and C for their shares. A then died, and at his death the estate remained unsold : — Held, that there had been no re-conversion, but that the estate in equity retained its character of personalty. Brown V. Brown, 33 Beav. 399. (A) i§ (D) (E' (F CONVICTION. Under one Statute on a Summons under ANOTHER. Proof os Scienter. For Oppenoe on a Day not named in the Ineoemation. Single Offence : several Oaths. Bt Interested Justice. Certiorari to remote. (A) Under one Statute on a Summons under ANOTHER. On a summons under the Municipal Corporation Act, for assaulting a constable in the execution of his duty, the accused cannot be covvicted of a common assault under the 24 & 25 Vict. c. 100. 8. 42. S. V. Brichhall, 33 Law J. Rep. (n.s.) M.C. 166. (B) Proof of Scienter. A conviction against a person found in possession of naval stores marked with the broad arrow cannot be sustained, when the jury say that they have not sufficient evidence before them to shew that the pri- soner knew that the stores were so marked, though he had reasonable means of knowledge. R. v. Sleep, 30 Law J. Rep. (n.s.) M.C. 170; 1 L. & C. 44. Semble — If he wilfully shut his eyes to the fact of their being marked, the case might be diiferent. Ibid. (C) Fob Offence on a Day not named in the Information. Where an information charged the defendant with having on the 5th of October, and on divers other days and times between the said 5th of October and the laying the information (16th of November), being then the occupier of a certain house in the said city, knowingly and wilfully kept and used the same for the purpose of his betting with persons resorting thereto ; a conviction for so keeping and. using the house on the 8th of November was held good and valid. OnUy v. Bee, 30 Law J. Rep. (n.s.) M.C. 222. (D) Single Offence : several Oaths. Under the 19 Geo. 2. c 21. a conviction that, " A B did, on the day of , profanely curse one pro^ne curse," setting it out, " twenty several times repeated," and adjudging him to pay "for such his offence the penalty of 21.," — being a cumulative penalty at the rate of 2s. for each repetition, — is good. B. V. Scott, 33 Law J. Rep. (n.s.) M.C. 15 ; 4 Best & S. 368. The using several oaths on one and the same occasion, is one offence only ; and Jervis's Act (11 & 12 Vict. c. 43), s. 10, therefore, does not apply. Ibid. 138 CONVICTION— COPYHOLD. (E) Br Interested Justice. A prosecution under the Salmon Fishery Act, 1861 (24 & 25 Vict. c. 109), having been instituted and conducted by the agents of an association for the preservation of salmon, and a conviction obtained before Justices who were active members of the association, — the Court quashed the conviction, on the ground of the Justices' interest. R. v. Allen, 33 Law J. Rep. (n.s.) M.C. 98; 4 Best & S. 915. (F) Certiorari to remove. Saturday, the 22nd of August, being the last day of the six months for obtaining a certiorari to remove a conviction, notice of the intention to apply to a Judge on that day was duly served on the convicting Justices. The vacation Judge being jinly at cham- bers on Tuesdays and Fridays, on Friday the 21st of August the defendant's agent left affidavits at the Judge's chambers to be laid before the Judge, with an intimation of the nature of the application, and called again on the Saturday, when the Judge had not returned the affidavits ; and on his next attend- ance, on Tuesday the 25th of August, all the parties went before him : — Held, that the application was made within the meaning of the 13 Geo. 2. c. 18. 8. 5. on the Saturday, and that the certiorari ought to issue. R, V. Allen, S3 Law J, Rep. (n.s.) M.C. 98 ; 4 Best & S. 915. COPYHOLD. [The Copyhold, Inclosure and Tithe Commission continued by 25 & 26 Vict. c. 73.] (A) Custom. (a) Validity of. (h) Evidence of. (c ) Cesser of. (B) Surrender and Admittance. (a) Of Purchaser. (b) Upon Grant of a Lord Farmer to himself. (c) Lord's Right to a Fine. (A) Custom. (a) Validity of. A custom in a manor that copyholders of inherit- ance may break the surface and dig and get clay, without stint, out of their copyhold tenements, for the purpose of making bricks, to be sold off the manor, is good in law (dvMtante Lord Wensleydale). So held by the House of Lords, affirming the decision below, 30 Law J. Rep. (n.s.) Exch. 3; 6 Hurls. & N. 123. The Ma/rguis of Salisbury v. Gladstone (House of Lords), 34 Law J. Rep. (n.s.) C.P. 222. A custom for copyhold tenants to fell timber or other trees upon their customary lands, and to retain the same for their own use, without licence from the lord, although such timber may not be felled for necessary repairs, is not unreasonable. And such a custom is not the less admissible in evidence, because it also professes to entitle the customary tenants to plough up meadow land and to suffer their houses to decay, which might be a bad custom, if pleaded. Where the customary tenants hold under a corn rent, or an annual sum of money in lieu thereof, in the absence of a custom to the contrary, the election is with the tenant to pay either in money or in corn. Where, therefore, the Assistant Commissioner, under the Copyhold Acts, upon evidence that for sixty years past the payments had invariably been made in money, decided that the election was with the tenant, — the Court, upon a case stated by way of appeal, affirmed his decision. Bleuett v. Jenkins, 12 Com. B. Rep. N.S. 16. (5) Evidence of. The 1st section of the Prescription Act (2 & 3 Will. 4. c. 71.) applies only to cases where a person claims by custom, prescription, or grant, a profit or benefit from the land of another, and has no appli- cation to the case of a right claimed by a copyholder on his own tenement according to the custom of the manor. Consequently, where copyholders claimed a customary right to dig and carry away sand from their tenements, and the evidence was such that an infer- ence of the existence of the custom might be readily drawn therefrom, it was held, reversing the decision of one of the Vice Chancellors, that it was not necessary to prove that the right had been enjoyed for the period of thirty years. Hanmer v. Chance, 34 Law J. Rep. (n.s.) Chanc. 413. Semble — Where a custom has been enjoyed for a shorter period than is required by the act for its establishment, the 6th section of the act does not preclude the Court from taking the fact of such enjoyment into consideration along with other cir- cumstances as evidence of the existence of the custom. Ibid. (c) Cesser of. If a lessee of a manor demises lands otherwise than by custom, his right to grant lands by the custom will be extinguished during the continuance of his interest. But on the determination of the interest of the lessee, the lord of the fee may re- grant the lands accordingto the custom of the manor, and a re-demise by the lord of the fee to the lessee or to a stranger will resuscitate the right of re-grant- ing the lands according to the custom of the manor. Biit if the lord of the fee demises lands otherwise than by custom, the right to re-grant according to the custom is extinguished wholly and for ever. Ex parte Lord Henley, in re tlte London and South- western Rail. Co., 31 Law J. Rep. (n.s.) Chanc. 54; 29 Beav. 311. If a lessee of a manor assigns his legal interest therein to a mortgagee, the estate of the mortgagee will preserve to the mortgagor his right to re-grant lands according to the custom, though he has let them some on lease and some from year to year, in contravention of the custom. Ibid. (B) Surrender and Admittance. (a) Of Purchaser. By will a testator authorized, empowered and directed his executors to sell and dispose of his copyhold estate, and to convey and assure such copyhold hereditaments unto the purchaser or pur- chasers thereof. The executors put up the estate at auction and sold it to C, conveying it to him by bargain and sale : — Held, that C had a right to be admitted as tenant of the copyhold, without any COPYHOLD; (B) Surrender and Admittance. 139 previous admittance of either the heir or the execu- tors. R. V. WiUm, 32 Law J. Eep. (n.s.) Q.B. 9 ; 3 Best & S. 201. (i) Upon Grant of a Lord Fourmer to himself. Three successive Dukes of Buckingham had been for many years lessees of the manor of M, of which the plaintiffs were owners in fee. The lessee for the time being had, by custom, as lord farmer, the right of making grants for three lives of certain copyholds within the manor, and renewing these lives as they dropped ; but the lease contained a proviso against alienation without the lessor's licence. In the year 1883, the then Duke, lessee of the manor, assigned, together with other real and personal property, in general terms, his "manors," &c., whether freehold or leasehold, to trustees, upon trust to sell the same, and in the mean time to manage the property ; but this deed was never acted on. Shortly after this deed of assignment, the lease of the manor of M was renewed for twenty-one years by the plaintiffs to the then Duke. He died in the year 1839, leaving his son his successor and universal devisee and legatee. In the year 1842 the lease of the manor of M was again renewed for twenty-one years by the plaintiffs to the late Duke. The plaintiffs had no notice of the existence of the assignment of 1833, until after the year 1863. In the year 1840, certain copyholds of the manor held by one H were surrendered to the use of the late Duke, the then lord farmer, for a valuable consideration, and the late Duke was admitted to these copyholds for his own life and that of two other persons. In 1845, one of these lives dropped, and the late Duke then granted these copy- holds to himself for the life of his son, the defendant, and was himself admitted to these copyholds accord- ingly. In the year 1840 the persons for whose lives certain other copyholds of the manor had been granted were all dead, and thereupon the then lord farmer granted these copyholds to himself, for three lives, and was admitted to these copyholds accord- ingly. In the year 1811, the then Duke, as lord farmer, granted certain copyholds of the manor to himself for the lives of himself and two other persons. After his death in 1839, the late Duke, as lord farmer, on two occasions, granted the same copy- holds to himself for the life of another, in order to fill up the lives as they dropped. The late Duke died in 1861, and all his interest in this property vested in the defendant : — Held, that these grants, as being made by the lord to himself, were all Void, and that there could be no presumption that the grants since 1833 were made by the lord as agent of the trustees under the deed of that year. Christ- church, Oxford, V. the Duke ofBucHngham, 33 Law J. Rep, (n.s.) C.P. 322; 17 Com. B. Rep. N.S. 391. (c) Lord's Right to a Fine. The co-heiresses of a copyhold tenant, being trustees of the tenements for R, surrendered to C, a trustee for and nominated by R. The solicitor for R and the surrenderors sent the surrender to the steward as instructions for the admission of C, and thereupon the steward, according to the custom, de- livered the rod to a person nominated by him to receive admission for C. At the time of taking^the admission, the steward also, according to the custom, made an entry or minute of the admission according to the surrender, from which the court-rolls were afterwards made up. A draft admission was pre- pared, and a stamped copy sent for C, but which was returned to the steward, as it contained a different description of the land to that in the surrender. No entry was made in the court books until after action brought. By the custom of the manor an arbitrary fine was payable on admission, and the steward de- manded 122/. 10«. from the co-heiresses for a fine on surrender without admission, and 70/. from C as a fine upon admission. Actions being brought by the lord to recover these fines, the claim indorsed on one will being 120/, and on the other 70/., the facts were turned into a special case, with power to the Court to draw inferences of fact; it being agreed that if the plaintiff recovered any fine, the amount should be 60/. from the surrenderors and 60/. from C. The Court having found that the fines assessed and de- manded were unreasonable, — Held, that the actions were not maintainable, and that the lord could not recover the agreed sum as on a quantum meruit, the alterations in the rules of pleading not affecting the necessity for an assessment and demand of a sura certain. Hayward v. Ram; and Haywa/rd v, Cruden, 30 Law J. Rep. (n.s.) Exch. 178 ; 6 Hurls, & N. 308. Quwre — Whether the entry of admission made by the steward at the time could be treated, as between the lord and the tenant, as evidence of a complete admission on the court-rolls. Ibid, A being the trustee of copyhold estates was ad- mitted tenant on the roll, and died leaving B his heir. B was never admitted, and devised his trust estates to C; and C was accordingly admitted. During the life of A the cestui que trust for life voluntarily came in and was admitted on behalf of himself and the cestui que trust in remainder, and paid the fine as on an admittance in fee ; the cestui que trust in remainder survived B : — Held, that the lord was entitled to a double fine on the admittance of C, viz,, the fine that would have been paid had B been admitted, as well as the fine payable on the admittance of C himself, Londeshorough v. Foster, 32 Law J, Rep, (n.s,) Q,B, 225 ; 3 Best & S, 805. Held, also, that the lord was not estopped from claiming on the ground that the property was held on trust, and that he had admitted some of the cestuis que trust on payment of the fines. Ibid. W R, a testator, devised copyholds to his son absolutely, subject to an executory devise over in case of his death without issue living at bis death. The son paid a fine, was admitted, and died without issue. On the son's death (a receiver having been previously appointed by the Court of Chancery) the lord of the manor of which the copyholds were liolden presented a petition' in the cause, praying that he might be at liberty (notwithstanding the order for the appointment of the receiver), to receive the rents of the estate until further order, that is, to seize quousque the executory devisees should claim admission and pay the proper fine: — the Vice Chancellor Kindersley decided that the admission of the primary devisee was the admission of the executory devisees, and that the lord had no right to a further fine, and that the Court ought not to leave him to his legal remedy, but to decide the point at once: and His Honour dis- missed the petition with costs. On appeal, a custom of the manor was proved to exist for devisees in 140 COPY HOLD— COPYRIGHT. remainder to come in and be admitted and pay a full fine on admission, and thereupon it was held by the Lords Justices that on the custom the lord of the manor was entitled to a fine from the executory devisee under W R's will, and must be left at liberty to seize quousque, and they ordered all costs of the petition both in the court below and on the appeal to be paid out of a fund in court paid in by the receiver, without prejudice to any question, and dis- charged the order of the Vice Chancellor. Rand- field V. Bandfield, 31 Law J. Rep. (n.s.) Chanc. 113; 1 Dr. & S. 310. A custom that the lord of a manor, in assessing the fine upon admittance of one not being a copy- hold tenant on the court-rolls (except a customary heir claiming admittance as such), if not restricted in amount to any number of years' value of the tenement to which such admittance is made, is un- reasonable and bad. Douglas v. Dysant, 10 Com. B. Rep. N.S. 688. COPYRIGHT. [The law relating to copyright of designs amended by 24 & 25 Vict. c. 73.— The law relating to copy- right in works of the fine arts, and for repressing the commission of fraud in the production and sale of such works, amended by 25 & 26 Vict. t. 68.] (Al Proprietorship of. (B) International Coptrioht. (C) CoPYBiOHT OP Designs. (D) Piracy and Infringemest of. (a) Descriptive Catalogue of Books. (5) Photographic Copies of Engravings, (c) Dramatic Compositions and Pieces. (E) Assignment of. (A) Proprietorship of. The right of the author of an article in a periodi- cal under the 18th section of the act to prevent a separate publication is not copyright, within the meaning of the 24th section, and it is no objection to a motion for injunction in such a case that the author has not entered his work at Stationers' Hall. Mayhew v. Maxwell, 1 Jo. & H. 312. By the effect of section 18. of the Copyright Act {5 &, Q Vict. c. 45), the proprietor of a periodical is precluded from republishing without the consent of the author articles written by the latter for and published in such periodical in any other form than as reprints of the entire numbers of the periodical in which those articles appeared. Smith v. Johnson, 33 Law J. Rep. (n.s.) Chanc. 137; 4 Giff'. 632. A republication in supplemental numbers of a selection of various tales previously published in a periodical, is a separate publication within the sec- tion. Ibid. Where the solicitor of a company writes a letter, apparently on behalf of the company, he has no such property in it as to entitle him to prevent its publication, although he swears that it was written in his private capacity. Howard v. Qwrm, 32 Beav. 462. (B) International Copyright. A foreign author, who first publishes within the British dominions, being at the time resident within any part of the British dominions (whether the place of publication or not), acquires a general copyright throughout the whole of those dominions. Low v. Houtledge, 33 Law J. Rep. (n.s.) Chanc. 717. Semble — That a foreign author, who first publishes here, though while resident in foreign parts, is en- titled to copyright under the 5 & 6 Vict. t. 45. Ibid. Errors in the registry of proprietorship under the 5 & 6 Vict. c. 46, as to the date of first publication and name of publisher, held to invalidate a. subse- quent assignment under the act. Ibid. By the International Copyright Act (7 & 8 Vict. c. 12. s. 19), a British subject, who first publishes abroad, is, equally with a foreigner, deprived of any copyright save such as he may acquire under that act; and if there be no treaty in force giving effect to the act in his particular case, he has no copyright in this country; and in reference to the right of dramatic representation, first representation abroad is a first publication abroad within the meaning of section 19. of the act. Doucicault v. Delafield, 33 Law J. Rep. (n.s.) Chanc. 38 ; 1 Hem. & M. 697. B, a British subject, brought out a drama in New York ; he afterwards represented it in this country, having duly registered it. There being no arrange- ment in force between this country and the United States as to international copyright, — Held, that B had no exclusive right to perform his drama in this country. Ibid. (C) Copyright of Designs. [See (D) Piracy and Infringement of.] The 5th section of the " Copyright of Designs Act, 1858," provides, that the registration of any pattern or portion of an article of manufacture to which a design is applied, instead or in lieu of a copy, drawing, &c., shall be as valid and effectual as if such copy, drawing, &c. had been furnished to the registrar under the " Copyright of Designs Act" : — Held, that this enactment authorizes the simple registration of » pattern of an article of manufac- ture, where the design claimed is a new combination the parts of which are not new, in like manner as if the whole design were new. M'Crea v. Holds- woth, 33 Law J. Rep. (n.s.) Q.B. 329; 5 Best & S. 496. The proprietor of a design duly registered under the Acts for the Copyright of Designs, whether he be a British subject or a foreigner, forfeits the benefits of the acts unless the proper registration marks are attached to all articles and substances to which the design is applied, whether the same are sold abroad or in the British dominions. Sarazin v. Samel, 32 Law J. Rep. (n.s.) Chanc. 380 ; 32 Beav. 161. The 6 & 7 Vict. c. 65. applies only to new designs having reference to some purpose of utility; and in order to obtain the benefit of the act, the purpose must be specified in the description supplied for registration. Windover v. Smith, 32 Law J. Rep. (n.s.) Chanc. 561 ; 32 Beav. 200. A coachmaker caused to be registered, under 6 & Vict. c. G5. a design for a dog-cart, specifying as the purpose of utility that " higher front wheels could be used or closer coupling effected." The design consisted of parts 1, 2, 3, 4, of which 1, 2, and 3. had nothing to do with front wheels or closer COPYRIGHT; (D) Pibaot and Infbinsesient of. 141 coupling, and No. 4. was not new : — Held, that no exclusive privilege was gained by registration. Ibid. (D) Piracy and Inprikgement of. (a) Descriptive Catalogue of Boohs. A bookseller, H, wrote and published a descrip- tive catalogue of books ; another bookseller, A, pub- lished a descriptive catalogue in which many of the descriptions were copied verbatim from H's cata- logue : — Held, that such copying was an infringe- ment of H's copyright. Sotten v. ArthvA; 32 Law J. Rep. (n.s.) Chanc. 771; 1 Hem. &M. 603. (5) Photographic Copies of Engravings. If a print, the copyright of which is conferred on the engraver or publisher by the Engraving Copy- right Acts, 8 Geo. 2. .;. 13. and 7 Geo. 3. c. 38, be copied by the process of photography, this is a copy- ing for which an action may be maintained under the 17 Geo. 3. c. 57. Gamha/rt v. Ball, 32 Law J. Rep. (n.s.) C.P. 166; 14 Com. B. Rep. N.S. 306. Q,iuBre — Whether single copies by hand, or a transfer of the design to an article of manufacture, would be within the 17 Geo. 3. c. 57. Ibid. Semble — per Willea, /., that this statute only applies to a production of copies by some process capable of multiplying the number of copies jn- deiinitely. Ibid. (c) Drajnatic Compositions and Pieces. Copyright or protection to works of literature, after they have been published, exists only by statute. Reade v. Conquest, 30 Law J. Rep. (w.s.) C.P. 209 ; 9 Com. B. Rep. N.S. 755. Representing the incidents of a published novel in a dramatic form upon the stage, although done publicly and for profit, is not an infringement of copyright in the novel. Ibid. The declaration stated that the plaintiff was the registered proprietor of copyright in a certain regis- tered book, viz., a novel, entitled ' It is never too late to Mend,' and that the defendant, after the passing of the 6 & 6 Vict. c. 46, without the con- sent of the plaintiff, dramatized the said book, and pubUcly represented it as a drama at a theatre for profit, whereby the sale of the book was injured, &c. : — Held, on demurrer, that the declaration dis- . closed no cause of action, either at common law or under the statute, for infringement of the plaintiff's copyright. Ibid. The plaintiff, who was the author of a drama, published a novel founded thereon, containing in sub- stance the same incidents, characters and language. The defendant's son dramatized the novel, and in so doing took many of the characters and incidents and much of the language of the novel, and, conse- quently, much which was the same as in the drama, but without having seen or in any way known of the drama ; and the defendant then represented what his son had so dramatized at his theatre : — Held, that such representation was an infringement of the plain- tiff's stage copyright in his drama, as the defendant's son was not the author in respect of such parts of his drama copied from the novel which were the same as the corresponding parts of the drama. Beade v. Conquest, 31 Law J. Rep. (n.s). C.P. 163 ; 11 Cora. B. Rep. N.S. 479. Qucere — Whether a publication by the defendant's son of his drama would have been an infringement of the plaintiff's book copyright in his novel or drama. Ibid. Whether it is an infringement of the copyright in a novel to dramatize it — quaire. But it is an infringe- ment of the copyright in a play by the same author on which such novel was founded, notwithstanding the passages complained of may have been taken from the novel, and not directly from the play. Beade v. Lacy, 30 Law J. Rep. (n.s.) Chanc. 665 j 1 Jo. & H. 524. Thus, where the owner of copyright in a play wrote a novel founded upon it, to which he trans- ferred several scenes from the play, and afterwards another person dramatized the novel, taking the same scenes from the novel, this was held to be an infringement of the copyright in the play. Ibid. Certain novels, the copyright in which belonged to T, were dramatized and the dramas, containing some of the most important scenes and incidents of the novels, copied verbatim, were printed and published by L. On an application, by T, for an in- junction to restrain the sale of the dramas, — Held, that printing and selling the dramas was an in- fringement of T's copyright. Tinsley v. Lacy, 32 Law J. Rep. (n.s.) Chanc. 536 ; 1 Hem. & M, 747. If a plaintiff shews that his copyright has been infringed, the Court will grant an injunction without proof of actual damage. Ibid. The statute 3 & 4 Vict. c. 15. s. 2. imposes a penalty upon any person who, during the con- tinuance of the sole liberty which another person has of representing a dramatic piece or entertain- ment, represents or causes it to be represented without the consent in writing of, &c. The defen- dant, the proprietor of a theatre, allowed D to have the use of it for the purpose of dramatic entertain- ments. The defendant provided the band, the scene-shifters, the supernumeraries, the money- takers, and paid for printing and advertisements. D employed his own company of actors and actresses, and selected the pieces which were to be represented, free from any control by the defendant. It was arranged that the money taken at the doors should be divided equally between the defendant and D. During the period of such occupation of the theatre by D certain pieces were performed which the plain- tiff had the sole liberty of representing or causing to be represented : — Held, in an action to recover the penalties imposed by the above section, that the plaintiff could not recover, inasmuch as under the above circumstances the defendant was not shewn to have represented or caused to be represented the said dramatic pieces. Lyon v. Knowles, 32 Law J. Rep. (n.s.) Q.B, 71 ; 2 Best & S. 556. The defendant, who was proprietor of a theatre, let the use of the same with his company of actors and actresses, lights, scenery and proper- ties, to his son, the stage-manager, for a benefit night, who paid the defendant a fixed sum for the letting, and took all the profits of such night, and selected what pieces should be performed. A dra- matic piece having been performed on such occasion by the defendant's company without the consent of the author, — Held, that the defendant caused such piece to be represented, and was liable therefore to the penalty for doing so, under the 8 & 4 Will. 4. 142 COPYRIGHT— COSTS, AT LAW. c. IS. s. 2. Marsh v. Conguest, S3 Law J. Rep. (N.s.) C.P. 1; 17 Com. B. Kep. N.S. 418, 432. The author of a dramatic piece may assign the Bole right of representing the same, without such assignment being by deed, or registered according to 6 & 6 Vict. c. 46, so as to enable the assignee to sue for the penalty payable under 3 & 4 Will. 4. c. 16. e. 2, for a representation without his consent. Ibid. Where by the same deed the administrator of the author assigned to the plaintiff, after the passing of 5 & 6 Vict. c. 45, the copyright and acting-right in a dramatic piece first published after the passing of the 3 & 4 Will. 4. c. 15, the plaintiff can maintain an action for penalties under the latter act against the defendant for performing the piece without his licence, within twenty-eight years of its publication, although the deed has not been registered ; as the plaintiff's right is under the act 3 & 4 Will. 4. c. 15, and there is nothing in the 5 & 6 Vict. c. 45. which renders registration necessary in the case of an assign- ment of such a right of representation. Lacy v. Rhys, 33 Law J. Rep. (n.s.) Q.B. 167 ; 4 Best & S. 873. QufBre — Whether registration would have been necessary if the piece had been published more than twenty-eight years. Ibid. Held, also, that the admissibility of the letters of administration in evidence could not be objected to on the ground that they had not been stamped within six months of the discovery of the mistake in omit- ting to get them stamped. Ibid. K, the licensed proprietor of a theatre, under the statute 6 & 7 Vict. c. 68, entered into an arrangement with D, whereby D had the use of the theatre for dramatic entertainments. D provided the company, had the selection of the pieces to be represented, together with the entire management of their repre- sentation, and exclusive control over the persons employed in the theatre. K, on his part, paid for printing and advertising, furnished the lighting, door- keepers, scene-shifters, and supernumeraries ; and hired the band, music being a necessary part of the performance. The money taken at the doors was taken by servants of K, who retained one-half of the gross receipts as his remuneration for the use of the theatre, and handed the other half to D. Among the pieces represented were two which L had the sole liberty of representing or causing to be represented, &c., as assignee of the author, under the Dramatic Literary Property Acts, 3 & 4 Will. 4. c. IS. and the 5 & 6 Vict. c. 45 : — Held (by the Exchequer Chamber), aflirming the judgment of the Queen's Bench, that no action under those statutes was main- tainable by L against K, as the above facts did not shew that those pieces had been represented, &c. by him, or that there was a partnership between D and him so as to render him liable for the representation of them by D. Ly(m v. Knowles, 5 Best & S. 751. (E) Assignment of. An assignment of a copyright, made after the 64 Geo. 3. c. 156. and before the 5 & 6 Vict. c. 45, need not be attested, — So held, by the Exchequer Chamber, reversing the decision below, 31 Law J. Rep. (n.8.) Exch. 19 ; 7 Hurl?. & N. 118. Cum- berland v. Gopeland (Ex. Ch.), 31 Law J. Rep. (n.s.) Exch. 363 ; 1 Hurls. & C. 194. CORONER. Powers and Privileges. If a coroner's inquest on a dead body be adjourned, and on the day appointed the Court be not formally opened and further adjourned, the proceedings drop and the Court is dissolved, and everything else done in the matter of the inquest is coram nonjudice; and this is the case, even where the adjournment takes place only for the purpose of drawing up a formal inquisition after the jury have, in substance, agreed upon their verdict. S. v. Payn, 34 Law J. Rep. (n.s.) Q.B. 69. SembU — That no action is maintainable against a coroner for anything said by him while he is acting as coroner, and addressing a jury impannelled before him, although he uses defamatory language falsely and maliciously ; and held that, at any rate, a de- claration is insufficient which does not aver that the words were spoken without reasonable and probable cause. Thomas v. Chirton, 31 Law J. Rep. (n.s.) Q.B. 139; 2 Best &S. 476. jTiquisition. By the 24 & 25 Vict. c. 100. s. 6, it shall not be necessary in any "indictment" for murder or man- slaughter to set forth the manner in which, or the means by which, the death of the deceased was caused: — Held, that the word '* indictment" com- prehends inquisitions taken before coroners, and theerfore that such an inquisition was not bad by reason of its not setting forth the manner or means of the death. M. v. Ingham, 33 Law J. Rep. (n.s.) Q.B. 183 ; 6 Best & S. 257. Held, also, that the omission to state the time at which the offence was committed was cured by the 6 & 7 Vict. u. 83. s. 2. Ibid. Held, also, that it is not necessary that the jury should all be sworn at the same time, or that they should be sworn super visum corporis, or that they should all view the body at one and the same time. Ibid. Misbehaviow in Office. A sudden death having occurred in a coroner's district he summoned a jury, but on the day ap- pointed he attended in a state of intoxication, and without swearing the jury dismissed them for no adequate reason. On petition to the Lord Chan- cellor, under the 28 & 24 Vict. c. 116, the coroner was ordered to be removed on the ground of " mis- behaviour in his office." In re Ward, 30 Law J. Rep. (n.s.) Chanc. 775. The practice of issuing the writs De coronatore exonerando and De coronatore eligendo at the same time continued. Ibid. CORPORATION. [See Company — Municipal Cokpoeation.] COSTS, AT LAW. [See Qno Warbanto.] [The provisions of 18 & 19 Vict. c. 90. as to the payment of costs to and by the Crown, extended to the Isle of Man by 26 Vict. c. 14.] COSTS, AT LAW; (A) Plaintiff's Right to. 143 (A) Plaintiff's Right to. (a) In general. (b) Certificate. (1) ForCosfs,underS) Sufficiency of one Act of Cruelty. One gross act of cruelty is ground for a decree of judicial separation if there be reasonable appre- hension of further acts of the same kind. Reeves v. Reeves, 32 Law J. Rep. (n.s.) Prob. M. & A. 178 ; 3 Swab. & T. 139. A decree of judicial separation, on the ground of cruelty, will not be granted unless the Court is satis- DIVORCE AND MATRIMONIAL; (t) Deseetion. 197 fied that further cohabitation is unsafe. A single act of personal violence committed under excite- ment, and not producing any considerable injury to the person, will not warrant the Court in concluding that further cohabitation is unsafe. Smallwood v. SmaUwood, 31 Law J. Eep. (n.s.) Prob. M. & A. 3; 2 Swab. & T. 397. Petition by a wife for judicial separation, on the ground of cruelty, dismissed, when the sole evidence of cruelty was, that In an altercation, arising out of the unfounded jealousy of the husband, he had seized his wife by the throat and had thrown her on the ground, and it did not appear that any marks on the throat, or injury to the health of the wife, had resulted from the violence. Ibid. (e) By the Wife. Repeated acts of unprovoked violence by a wife will be regarded as cruelty, although they may not inflict serious bodily injury upon the husband or imperil his safety. Picjea/rd v. Pichwrd, 33 Law J. Eep. (if.s.) Prob. M. & A. 158. Where a judicial separation is granted on the ground of the wife's cruelty, the Court has power to order the husband to make a provision for her. Ibid. Though the physical effects of the wife's violence may not generally be so serious to the personal safety of the husband as the effects of his violence towards her, yet the moral result of the wife's vio- lence to all the proper relations of married life is so serious, that the Court will interfere, jind not drive the husband to the necessity of meeting force by force. Priehmd v. Prkhard, 3 Swab. & T. 623. In such cases the Court will expect some pro- vision to be made for the maintenance of the wife ; overruling White v. White and Dart v. Dart. Ibid. {d) By Insane Person. Cruelty committed by an insane person is no ground for judicial separation. Sail v. ffall, 33 Law J, Rep. (n.s.) Prob. M. & A 65; 3 Swab. & T. 347. (e) Condonation. A return to matrimonial cohabitation is necessary in order that there may be condonation. Cooke v. Coohe, 32 Law J. Rep. (n.s.) Prob. M. & A. 81 ; 3 Swab. & T. 126. Delay in presenting a petition for judicial separa- tion on the ground of cruelty is not of itself a bar to the suit, but it is a circumstance to be taken into consideration, and combined with others may be a ground for dismissing the petition as tending to shew that the suit is instituted &>r some collateral object and not for the purpose of protection. Ibid. A wife in consequence of her husband's cruelty left his house. She afterwards came back, but refused to return to his bed except upon condition that he would restore her to her position in the household as bis wife, with which he refused to comply. In consequence of his ill-treatment, she again lefti and never returned. After the final sepa- ration, in consideration of the wife's agreement to apply part of her settled income for the benefit of the children, the husband promised to allow them to visit her from time to time. This promise he failed to perform, and in consequence of the breach of his agreement, and not from fear of personal violence, the wife, six years after the separation, instituted a suit for judicial separation : — Held, 1. That the husband's cruelty was not condoned ; 2. That as the suit was instituted in order that the wife might have access to her children, which she could not otherwise obtain, unless by renewal of a cohabitation which would be dangerous, and as there was no proof that it was instituted for any pur- pose that had no relation to the ill-treatment she had suffered, and the peril of a renewal of cohabi- tation, she was entitled to a judicial separation. Ibid. The word " condonation " has the same meaning in the Divorce Acts as it had in the Ecclesiastical Courts ; and the doctrine of revival is equally ap- plicable to it. Therefore, although the adultery complained of by the petitioner in a suit for disso- lution of marriage has been condoned, the peti- tioner is entitled to a decree if it has been revived by subsequent cruelty. Dent v. Dent, 34 Law J. Rep. (n.s.) Prob. M. & A. 118 ; 4 Swab. & T. 105. [And as to Condonation generally, see^os<, (K).] (I) Desertion. [See (N) Pleading (a).] (a) Generally what amounts to. In a suit commenced on the 7th of November, 1861, by a wife for dissolution of marriage on the ground of adultery and desertion for two years, it appeared that the parties were married in 1852 and lived together until 1856, when the husband took an appointment in the Commissariat in China, leaving his wife and only child in England, his motive for doing so, according to his own statement made subsequently, being that " his marriage had been the curse of his life, and he was miserable in his home." From China he wrote frequently to his wife, expressing attachment to her, but always asking, for money to pay debts incurred by his extravagance, and never shewing the least inclina- tion to return. In 1859 he was tried by court-mar- tial and dismissed the service. He then wrote to his wife expressing his determination never to return to England, but to go to Australia via Alexandria, and asked that money should be sent to him at Alexan- dria to pay his passage to, and enable him to begin life in, Australia. On the 22nd of October, 1859, he wrote from Alexandria acknowledging the receipt of this money, and saying that he had resolved to go out to Sydney, and hoped to start for that place from Alexandria on the 25th of October. Instead, however, of going to Sydney, he went to Paris, lost all his money at a gaming-table, and thence came to England, where he arrived about the 10th of Novem- ber, and shortly after formed an adulterous con- nexion with a woman whom he proposed to marry. He did not communicate with his wife or her friends until the 10th of December, when he wrote to her expressing no wish to see her, and giving no address, but stating that he was penniless, and requesting her if she wished to hear further of him to put an advertisement in a newspaper : — Held, that his let- ters, construed by his acts, warranted the conclusion that from the time he left Alexandria he never in- tended to return to his wife, and had therefore deserted her for two years and upwards before the commencement of the suit. Za/wrenoe v. Lawrence, 198 DIVORCE AND MATRIMONIAL; (I) Desertion. 31 Law J. Rep. (n.s.) Prob. M. & A. 145; 2 Swab. & T. 575. A Tnarried a woman, and, after cohabiting with her at her father^a house for some weeks, left her. At his request she shortly afterwards went to him and remained with him for two or three days. He then sent her back to her father,saying that he could not support her. After the lapse of eighteen months, during which she did not hear from him, he went to her father's house, and asked to be allowed to see her. Her father refused to allow him to have any communication with her until he should be in arf:on- dition to support her. He then left, and never returned or asked her to return to him : — Quaere, whether these facts established a case of desertion. Harris v. Harris, 31 Law J. Rep. (n.s.) Prob. M. & A. 6. To neglect opportunities of consorting with a wife is not necessarily to desert her. WUliains v. WUliams, 33 Law J. Rep. (n.s.) Prob. M. & A. 172; 3 Swab. &T. 647. So long as a husband treats his wife as a wife by maintaining such degree and manner of intercourse as might naturally be expected from a husband of his calling and means, he cannot be said to have deserted her. Ibid. A husband and wife having failed in business, went into service in different families. For some years the husband constantly visited his wife once or twice a week when she was in London. After some years of such intercourse, the wife oifered to pur- chase a business with her savings, in order that they might live together. The husband, who had then formed an adulterous intercourse with another woman, refused this offer, but continued to visit his wife as before: — Held, that the husband had not been guilty of desertion. Ibid. (6) Wilfid Separation. A husband when reproached by his wife with an adulterous connexion he had formed with A said he wished to go and would rather be with A than with his wife. His wife said, " Go if you like, and when you are sick of A return to me," and she made him promise to return to her. He then left her, and never returned :— Held, that the conduct of the wife at the last interview did not shew assent by her to the separation, but that the husband had been guilty of desertion. Haviland v. HavUand, 32 Law J. Rep. (n.s.) Prob. M. & A. 65. A husband and wife executed a deed of separa- tion, but none of its provisions were ever carried into effect, and the cohabitation was continued after its execution. The husband subsequently deserted the wife : — Held, that she was entitled to relief on the ground of that desertion notwithstanding the deed. Coci; v. Cocf;, 33 Law J. Rep. (n.s.) Prob. M. & A. 157 ; 3 Swab. & T. 514. (c) £ffect of Offer to return to CohabUalion. Shortly after a marriage the husband, with the intention of bringing about a separation, so treated his wife as to compel her to leave him. She subse- quently made several offers to return ; but he refused to receive her. She continued willing to return, until she found that he was carrying on an adulterous intercourse, which had subsisted since the marriage. She then refused to return, except upon condition that such intercourse should cease : — Held, that the husband's conduct, before the wife became aware of his adultery, amounted to desertion, and that such desertion was not put an end to by her unwillingness to return while the adultery continued. Graves v. Graves, 33 Law J. Rep. (n.s.) Prob. M. & A. 66 ; 3 Sivab. & T. 350. An offer by a husband to return to cohabitation after he has deserted his wife for two years and upwards, and has committed adultery, does not take away her right to a decree of dissolution on the ground of such desertion coupled with adultery, the offence of desertion being complete before the offer was made. Basing v. Basing, 33 Law J. Rep. (n.s.) Prob. M. & A. 150; 3 Swab. & T. 616. (d) Protection Order. An order obtained pursuant to 20 & 21 Vict. c. 85. s. 21, by a married woman deserted by her husband, for the protection of property acquired since deser- tion, will not enable her to maintain an action com- menced before the date of the order for injuries to or in respect of such property. The Midland Sail. Co. V. Pye, 30 Law J. Rep. (n.s.) C.P. 314 ; 10 Com. B. Rep. N.S. 179. Qucere — Whether it will enable her to sue for injuries in respect of which the cause of action is complete at the time of the order. Ibid. (K) Condonation. [See ante, (H) Cruelty (e).] Condonation of adultery committed by a wife with A is a bar to any proceedings by the husband against A. If such condoned adultery is revived by the wife's subsequent misconduct, so as to entitle the husband to a decree of dissolution of marriage. A, though made a co-respondent in the suit, cannot be condemned in costs. Norris v. Norris, 30 Law J. Rep. (N.s.) Prob. M. & A. lU. To a suit by a wife for a dissolution of marriage, on the ground of adultery coupled with cruelty, con- donation of the cruelty is no bar. Quaere — Whether condonation of one marital offence is valid if made in ignorance of another marital offence. Dempster v. Dempster, 31 Law J. Rep. (n.s.) Prob. M. & A. 20 ; 2 Swab. & T. 438. Semile — That condoned adultery may be revived by undue familiarities short of adultery. Winscom v. Winscom, 33 Law J. Rep. (n.s.) Prob. M. & A. 45 ; 3 Swab. & T. 380. A charge of adultery held not to be established upon the evidence. Ibid. In order to establish condonation, it is not suf- ficient to prove that a husband returned to cohabita- tion with his wife after he was in possession of evidence of her adultery ; it is necessary also to prove that he gave credit to that evidence, and took her back believing her to be guilty and intending to forgive her. Bllis v. Ellis, 34 Law J. Rep. (n.s.) Prob. M. & A. 100 ; 4 Swab. & T. 154. (L) Connivance and Collusion. (a) Connivance. In order to establish connivance by the husband at his wife's adultery, it must be shewn that he gave a willing consent to it, and was an accessory before the &ct. If the husband, intending that adultery DIVORCE AND MATRIMONIAL; (L) Connivance and Collusion. 199 should take place, does not interfere when he might do so, he is guilty of connivance. In a suit for dis- solution of marriage, on the ground of the wife's adultery, a jury having found that the husband had connived at the adultery, the Court, being satisfied of the propriety of the verdict, dismissed the petition with costs. AUen v. Allen, 30 Law J. Rep. (n.s.) Prob. M. & A. 2. A husband who gives a willing assent to an act of adultery by his wife, desiring that it shall be com- mitted, is guilty of connivance, although he may take no active step towards procuring it to be com- mitted, and may not be an accessoiy before the fact. Mams v. Marris, 31 Law J. Rep. (n.s.) Prob. M. & A. 69; 2 Swab. & T. 530. Q,uare — Whether, in conducting a suit on behalf of the Queen's Proctor, the Attorney General can claim any privilege as in Crown cases. Ibid. In order to estabhsh connivance by a husband at his wife's adultery, it is not requisite that he should be an accessory before the fact — should have taken active measures to bring about the adultpry ; it fis sufficient if he was cognizant that adultery would result from transactions which he approved of and consented to. Qlmime v. Qlemnie, 32 Law J. Rep. (n.s.) Prob. M. & A. 17. Connivance is knowledge of, and acquiescence in, the conduct complained of, BouUimg v. BouUing, 33 Law J. Rep. (n.s.) Prob. M. & A. 33 ; 3 Swab. & T. 329. Where a wife, who was a petitioner in a suit for judicial separation on the ground of adultery, had for many years before the commencement of the suit known of such adultery without complaint or remonstrance, and had been in receipt of an allow- ance from her husband, the Court held, that those facts were evidence to go to a jury in support of a charge of connivance. Ibid. A husband wilfully abstaining from taking any steps to prevent an adulterous intercourse, which from what passes before his eyes he cannot but believe or reasonably suspect is likely to occur, is guilty of connivance, though there may be no corrupt intention on his part. Timmings v. Timmings dis- approved of. (Per the Lord Chancellor and Lord Chelmsford, Lord Wemleydale dissenting.) Gipps V. Qipps (House of Lords), 33 Law J. Rep. (n.s.) Prob. M. & A. 161 j 11 H.L. Cas. 1— affirming the decision below, 32 Law J. Rep. (n.s.) Prob. M. & A. 78 ; 3 Swab. & T. 116. If a husband having the right to divorce his wife for adultery, abandons that right in consideration of a sum of money received from the adulterer, he can never afterwards be a petitioner for a divorce on the ground of his wife's criminal intercourse with the same person — (per Lord Chelmsford). Ibid. A decree of dissolution of marriage on the ground of the wife's adultery will not be granted when the adultery has been brought about by persons acting on behalf of the petitioner, although without his knowledge. Piclcen v. Picixn, 34 Law J. Rep. (n.s.) Prob. M. & A. 22. Whilst the husband was abroad, his father em- ployed A to watch the wife. A employed B. At B's instigation, but without the knowledge or con- currence of the petitioner or his father, the co- respondent induced the- wife to commit adultery. The Court dismissed the petition. Ibid. (h) CoUusion. In a suit for dissolution of marriage on the ground of the wife's adultery the adultery was proved, but it appeared from the evidence of witnesses called by the Court, that an agent employed by the petitioner to procure evidence and serve the citations on the respondents, then living together as man and wife, had, whilst on.that mission, associated with them on intimate terms ; had received money from the co- respondent ; -and had paid him money, which was after|WardB repaid by the wife's father, in order that he might be enabled to complete the chain of evi- dence; that the father of the wife had paid money to the petitioner on his signing the petition, and also to induce him to proceed with the suit; had acted in concert with the .petitioner in the conduct of the suit ; and had aid^d in getting up the case by giving facilities for obtaining evidence of the adultery. The Court, being of opinion that the petition was prosecuted in collusion with the respondents, in com- pliance with* the 30th section of the 20 & 21 Vict. c, 85, dismissed it. Lloyd v. Lloyd, 30 Law J. Rep. (ij.s.), Prob. M. & A. 97. When collusion has been established the petitioner cannot be examined for the purpose of contradicting or explaining the evidence of such collusion. Ibid. If a husband, whose wife is leading a life of pro. stitution, pay money, or cause money to be paid to a person to commit an act of adultery with her, in order that he may obtain evidence to enable him to institute a suit for a dissolution of his marriage, the Court will not grant a decree in consequence of the act of adultery so committed with his concurrence. Svgg V. Sugg, 31 Law J. Rep. (n.s.) Prob. M. & A. 41. Where A, a friend of the petitioner, offered B 51. if he would obtain evidence against a respondent, and B made an arrangement with the co-respondent that he should commit adultery with the respondent and receive half the money, and the adultery was accord- ingly committed, and the money paid by A and divided between B and the co-respondent, the Judge Ordinary directed the jury that if the arrangement between B and the co-respondent was made without the knowledge and concurrence of the petitioner, the petitioner would be entitled to a decree by reason of the aduttery committed in pursuance of the arrange- ment. Ibid. In an undefended suit for dissolution of marriage on the ground of the adultery of the wife, it appeared at the hearing that the wife had given the petitioner's solicitor a photograph of herself and attended in court at the hearing to aid in her identification, and for so doing received money from the solicitor. The Court, notwithstanding, being satisfied upon the evi- dence that there was no collusion between the petitioner and respondent, pronounced a decree nisi. Harris V. Harris, 31 Law J. Rep. (n.s.) Prob. M. & A. 160. In order to establish a charge of collusion against the petitioner and the respondent in a suit for disso- lution of marriage, it is necessary to prove that there was some understanding or agreement between them. Gethim, v. Qethva, 31 Law J. Rep. (n.s.) Prob. M. & A. 43. Where a husband and wife, both of them being anxious to obtain a divorce, presented cross-petitions, and the husband's petition was dismissed upon his 200 DIVORCE ANDJMATRIMONIAL; (M) Parties to Suits. own application, and he abstained from making any defence to his wife's petition, the Judge Ordinary directed the jury that if that course had not been taken in consequence of any understanding or agree- ment between the parties, but each had acted independently of the other, the petitioner was not guilty of collusion. Ibid. (M) Parties to Sotts. (o) Committee of Imnatic. The committee of a lunatic may maintain a suit for judicial separation, on the ground of the adultery of the wife of the lunatic. Woodgate v. Taylor, 30 Law J. Kep. (if.s.) Prob. M. & A. 197; 2 Swab. & T. 512. (6) Curator ad Litem. A suit for dissolution of marriage cannot be main- tained against a lunatic. Where such a suit had been instituted, the Court refused to appoint a curator ad litem to the respondent to enable the petitioner to proceed with the suit. Bawden v. Bawden, 31 Law J. Rep. (n.s.) Prob. M. cS, A. 94 ; 2 Swab. & T. 417. (c) Intervener. (1) Q.tieeri's Proctor. The 23 & 24 Vict. c. 144. s. 7. enables any one of the public to give to the Court of the Judge Ordinary, between the decree nisi and the decree absolute for a divorce, information to relieve it from being misled on the subject of a divorce petition. That section confers on the Queen's Proctor the power to intervene in a case of collusion, but in that alone ; and, except in such a case, if he takes any proceedings in a suit for divorce, he appears only as one of the public giving information to the Court, and under such circumstances the Court has no power to award him costs. Lamtonr v. ffer Majesty's Proctor, 10 H.L. Cas. 685. The Queen's Proctor cannot, without the leave of the Court, intervene in his official capacity to shew cause against a decree nisi for dissolution of marriage being made absolute. Gray v. Gray, 30 Law J. Rep. (n.s.) Prob. M. & A. 96. Where the Queen's Proctor intervenes in a suit for dissolution of marriage before the hearing, and pleads collusion and that the petitioner has been guilty of adultery, his right to intervene cannot be defeated by the petitioner asking only for a decree of judicial separation ; but he will be allowed to prove his pleas. Drummond v. Drwmmond, 30 Law J. Rep. (n.s.) Prob. M. & A. 177; 2 Swab. & T. 269. T'he Court will not, at the hearing in such a case, allow the prayer of the petition to be altered into a prayer of judicial separation for the purpose of oust- ing the Queen's Proctor. Ibid. The Queen's Proctor having intervened, during the progress of a suit for dissolution of marriage, and pleaded " that the, petitioner and respondent had been acting in collusion, for the purpose of obtaining a divorce, contrary to the justice of the case," the Court ordered him to specify the nature of the col- lusion charged, but refused to order him to state the facts which he proposed to prove. Jessop v. Jessop, 30 Law J. Rep. (n.s.) Prob. M. & A. 193 ; 2 Swab. & T. 301. Where the respondent denied the allegations of the petition, and these issues came on for trial at the same time as an issue raised on a plea of the Queen's Proctor, "that the petition had been filed by arrange- ment with the respondent and others acting on his behalf," the Court held that the Queen's Proctor had nothing to do with the issues raised between the parties, and that his counsel had no right to com- ment on the evidence relating to them. Ibid. Though the Queen's Proctor may fail to establish a charge of collusion, the Court will not order the costs to be paid by the Crown if the petitioner's conduct has been such as to justify the intervention. Ibid. If before a decree nisi for dissolution of marriage has been made absolute material facts which would justify the intervention of the Queen's Proctor come to the knowledge of the Court, it will refuse to make the decree absolute, and will direct the registrar to lay the matter before the Queen's Proctor, that he may intervene if he think fit. Boulton v. Boulton, 31 Law J. Rep. (n.s.) Prob. M. & A. 27; 2 Swab. & T. 405. When the Queen's Proctor intervenes in his official capacity by leave of the Court, under the latter branch of the 7th section of 23 & 24 Vict. c. 144, and pleads to a petition, he cannot immediately after issue has been joined on his plea file affidavits under the 18th of the Further Rules of 1860, shewing cause against the decree being made absolute, inas- much as that and the following rules are applicable only to the intervention of " any person," without the leave of the Court under the first branch of the section. BouUonY. Boulton, 31 Law J. Rep. (n.s.) Prob. M. & A. 76 ; 2 Swab. & T. 551. After the expiration of three months from the pronouncing of a decree nisi for dissolution of mar- riage, the Queen's Proctor, without obtaining leave to intervene, entered an appearance and filed affi- davits shewing that material facts had not been brought before the Court. An application was made for a decree absolute, notwithstanding such appear, ance, &c., upon the ground that the Queen's Proctor, if he does not obtain leave to intervene, can only ehew cause against a decree nisi as one of the public, and within three months from the pronouncing of the decree: — Held, by the Court, rejecting the application, that cause may be shewn against a decree by any person at any time before it is made absolute. Bowen v. Bowen, 33 Law J. Rep. (n.s.) Prob. M. & A. 129; 3 Swab. & T. 630. The Court has no jurisdiction to award the Queen's Proctor his costs under 23 & 24 Vict, c. 144. 8. 7, unless he intervenes in his official capacity and proves collusion. Ibid. The wife petitioned for dissolution ; the husband made no answer; the hearing of the petition had been adjourned for further proof, pending which the Queen's Proctor intervened, and alleged the peti- tioner's adultery, who took issue thereon, and the Court allowed the proof of the original petition to be completed, and the issue as between the petitioner and Queen's Proctor to be set down for trial by a jury, retaining the same position in the cause-list as the original petition. Oethin v. Gethin, 2 Swab. & T. 406. The Queen's Proctor can only intervene, in his official capacity, in a suit for dissolution of marriage DIVORCE AND MATRIMONIAL; (M) Parties to Shits. 201 when he alleges collusion. He may, however, as one of the public, shew cause against a decree wisi being made absolute. Masters v. Masters, 34 Law J. Eep. (ir.s.) Prob. M. & A. 7. A respondent, by pleading in answer to a petition foi dissolution of marriage material facts, of which no evidence is given at the hearing, does not bring them before the Court, within the meaning of the 7th section of 23 & 24 Vict. 1. 144; but such facts may, after a decree nisi has been pronounced, be set up by one of the public as ground for not making the decree absolute. Ibid. The respondent in her answer to a suit for disso- lution of marriage charged the petitioner with adul- tery, and at the hearing called witnesses in support of the charge, but the issue was found against her. The Queen's Proctor subsequently intervened, and charged the petitioner with collusion, and also with the adultery pleaded by the respondent: — Held, that he was not barred &om setting up such adultery by the respondent having pleaded it, and adduced evidence at the hearing to prove it. Hording v. Harding/, 34 Law J. Rep. (tf.s.) Prob. M. & A. 9. When the Queen's Proctor intervenes after a decree nigi, and the affidavits filed by him and by the petitioner are contradictory, the Court will order the questions of fact in dispute to be tried by a jury. Ibid. In a suit by a husband for dissolution of marriage the Queen's Proctor intervened after a decree nisi, and filed a plea on which issue was joined. An order was subsequently made, that the petitioner should attend in court on the hearing of the issue, and upon his non-appearance when the case came on for hearing, the Court reversed the decree, and dismissed the petition without requiring evidence in support of the plea. Pollack v. Pollack, 34 Law J. Rep. (n.s.) Prob. M. & A. 49. The Queen's Proctor intervened in a suit for dis- solution, and alleged collusion and the petitioner's adultery. The respondent did not appear. No evidence being tendered in support of the petition when the case came on for hearing, the Court dis- missed the petition, without requiring evidence to be produced in support of the Queen's Proctor's pleas. Sheldon v. Shddvn, 34 Law J. Rep. (n.s.) Prob. M. &A. 80; 4Swab.&T. 76. An intervener shewing cause against a decree being made absolute, and alleging the same facts as those charged in the respondent's answer, and also collusion, is not bound to prove collusion before giving evidence of such facts. Hwrding v. Harding, 34 Law J. Rep. (ir.s.) Prob. M. & A. 108; 4 Swab. & T. 145. The petitioner is not a competent witness in a proceeding by an intervener shewing cause against a decree rmi: nor will the Court examine him under the 43rd section of the 20 & 21 Vict. c. 85. in sup- port of his own case. Ibid. The Court will refuse to make a decree nisi absolute, after the expiration of three months from the time when it was pronounced, in order to enable the Queen's Proctor to make inquiries, and to lay a case before the Attorney General for his directions, upon an affidavit being filed by the Queen's Proctor to the effect that he has received information of material facts, and that he intends to take the direction of the Attorney General. Palmer v. DiSEST, 1860—65. Palmer, 34 Law J. Rep. (n.s.) Prob. M. 8j A. 110; 4 Swab. & T. 143. (2) Other Persons. It is not competent for a person who has inter- vened in a suit for dissolution of marriage for the purpose of shewing cause against the decree nixi being made absolute, to object that the Court had no jurisdiction over the parties to the suit; nor to rely on, as material facts, charges which had been pleaded in answer to the petition but were aban- doned at the trial ; nor to support his opposition by matters which would only be ground for a motion by the parties for a new trial. Porster v. Forster, 32 Law J. Rep. (n.s.) Prob. M. & A. 206; 8 Swab. & T. 151. At any time before a decree nisi of dissolution of marriage is made absolute, it is competent for one of the public to intervene, although three months may have elapsed since the decree was pronounced. Clements v. Clements, 33 Law J. Rep. (n.s.) Prob. M. & A. 74 ; 3 Swab. & T. 394. The Court will not act upon affidavits filed in opposition to a decree nisi, unless it is satisfied that an intervener is properly before the Court. Ibid, An appearance was entered for A, and affidavits were filed in opposition to a decree nisi. Affidavits were then filed, by the petitioner, shewing that A had never authorized the intervention. An appear- ance was then entered for B, and further affidavits were filed. The Court refused to take notice of the intervention of B, and being satisfied that A had never authorized the intervention in his name, made the decree absolute. Ibid.' Semble — That the Court will not act upon an inter- vention when satisfied that it is made at the instance of the respondent or co-respondent. Ibid. A petition for dissolution of marriage was dismissed after decree nisi, on the ground of the petitioner's adultery, the charges of adultery proved by the intervener being identical with those contained in ' the respondent's answer but not proved by the respondent, ffa/rding v. Harding, 34 Law J. Rep. (N.s.) Prob. M. & A. 129; 4 Swab. & T. 145. The Court will allow persons who are not parties to a suit to intervene and plead upon the question of the custody, maintenance and education of the children of parents, whose marriage is the subject of the suit. Oltetwynd v. Chetwynd, 34 Law J. Rep. (N.s.) Prob. M. & A. 130; 4 Swab. & T. 151. [And see amte, (1), Bovien v. Bowen.'] {d) [See (T) Practice; (r) Damages.] (a) Generally who to be made. A petition, by a husband, for dissolution of mar- riage, charged adultery with A and also with divers other persons, and afterwards, in pursuance of an order of the Court, particulars of the general charge were given, alleging adultery with B. After an order had been obtained by the respondent for a commis- sion to examine B, who was abroad, the petitioner applied for leave to make B a co-respondent. The Court refused the application, on the ground that it was not bona fide, but solely for the purpose of excluding B's evidence. Cod,rmgton v. Codmngton, 2D 202 DIVORCE AND MATRIMONIAL; (N) Nullity. 33 Law J. Rep. (n.s.) Prob. M. & A. 62 ; 3 Swab. & T. 368. In a suit for dissolution of marriage on the ground of the wife's adultery, the petitioner must make every man against whom adultery is alleged in the petition a co-respondent, unless on special grounds he is excused by the Court from doing so. Oarryer V. Carryer, 34 Law J. Rep. (n.s.) Prob. M. & A. 47; 4 Swab. & T. 94. Qucere — Whether the want of evidence against the alleged adulterer, and the fact that he is resident abroad, are sufficient grounds for excusing the peti- tioner from making him a co-respondent. Ibid. (5) Dispeming ii/ith and dismissing. Although a wife has for many years been leading a life of prostitution, the husband, in a suit by him for dissolution of marriage, will not be excused from making a co-respondent, unless it appears that he knows of no person with whom she has committed adultery. JffooJc v. SooJc overruled. Quiche v. Qaicke, 31 Law J. Rep. (n.s.) Prob. M. & A. 28 j 4 Swab. & T. 419. Semhle — That if a husband, who has been allowed to proceed without making a co-respondent, after- wards and before the trial acquire evidence as to the person with whom his wife committed adultery, and who was previonsly unknown, he ought to bring the matter before the Court. He need not do so when the sole evidence is the wife's confession. Muspratt v. Muspratt, 31 Law J. Rep. (if.s.) Prob. M. & A. 28. The Court will not, upon the affidavit of the petitioner only, allow him to proceed without making a co-respondent. Leader v. Leader, 32 Law J. Rep. (if.s.) Prob. M. & A. 136. Where the wife, the respondent, was alleged to be leading the life of a common prostitute and to have committed adultery with several persons, who were necessary witnesses to enable the petitioner to estab- lish the charges of adultery, the petitioner was allowed to proceed without making a co-respondent. Peters v. Peters, 3 Swab. & T. 264. Where, in a suit for dissolution of marriage, the alleged adulterer, who had been made a co-respon- dent, appeared under protest and pleaded to the jurisdiction, the Court, on the application of the petitioner, dismissed the co-respondent from the suit on payment of his costs. Uaynor v. Oaynor, 31 Law J. Rep. (n.s.) Prob. M. & A. 116. (c) Death of. A suit for dissolution of marriage abates on the death of the respondent ; but the Court will not, on the application of the petitioner, order that the petition and affidavit in support of it be removed from the file. Brocas v. Brocas, 30 Law J. Rep. (n.s.) Prob. M. & A. 172; 2 Swab. & T. 383. Semble — That when the co-respondent dies pend- ing a suit for dissolution of marriage, a motion should be made for leave to strike his name out of the pro- ceedings. Sutton V. Sutton, 32 "Law J. Rep. (n.s.) Prob. M. & A. 156. By the death of the petitioner a suit for dissolution of marriage abates. If, therefore, he dies after a decree nisi has been pronounced the Court cannot make it absolute. Grant v. Grant, 31 Law J. Rep. (n.s.) Prob. M. & A. 174; 2 S»ab. & T. 522. The petitioner in a suit for dissolution of marriage on the ground of the wife's adultery died after a decree nisi had been pronounced, and before the time for making it absolute had expired. On behalf of the children of the marriage the Court was moved to make the decree absolute, in order that an appli- cation might be afterwards made, under the 22 & 23 Vict. u. 61. s. 5. for an order varying the marriage settlement. The Court rejected the motion. Ibid. (N) Pleading. (a) Certainty, Particularity, Relevancy, and Impertinence. To a charge of cruelty, an answer alleging in general terms that the use of force was justified by the conduct of the petitioner is bad. The nature of the conduct should be stated, but particulars of time and place need not be given. Shaw v. Shaw, 31 Law J. Rep. (n.s.) Prob. M. & A. 35; 2 Swab. &T. 615. In a suit for judicial separation on the ground of cruelty, cruelty may consist in the aggregate of the acts alleged in the petition, and each paragraph need not allege an independent act of cruelty sufficient in itself to warrant a decree. Leete v. I^eete, 31 Law J. Rep. (n.s.) Prob. M. & A. 121 ; 2 Swab. & T. 568. An allegation of an act relied upon as cruelty is not bad on demurrer, if such act could under any circumstances amount to cruelty. Ibid. An allegation that the respondent was in the habit of using insulting and abusive language to the petitioner in the presence of third persons, is admissible as tending to shew the temper and habits of the respondent. Ibid. A respondent may not plead and demur to the same part of the petition without leave of the Court. Ibid. A petition by a wife for judicial separation on the ground of cruelty, alleged in the 4th and 6th para- graphs that the respondent on one occasion threw a silver spoon, and on another a walnut, at the peti- tioner, with great violence, and in the 8th that he was in the habit of using insulting language to the petitioner, and taunting and abusing her in the pre- sence of the governess and servants. The respondent having demurred to these paragraphs, on the ground that none of the matters therein alleged amounted to cruelty, the Court set aside the demurrer as frivolous. The 9th paragraph alleged that the respondent was in the habit of beating and kicking the petitioner, but that she was unable to set forth the particular occasions. To this the respondent demurred, on the ground that he was not bound to answer such vague charges ; and the Court set aside the demurrer as frivolous, holding that the generality of the charge was only ground for an application for particulars. Ibid. In a petition for divorce on the ground of adul- tery, it is not competent to plead the ante-nuptial incontinence of the respondent, even though it and the adultery be charged to have been committed with the same person. Fitzgerald v. Fitzgerald, 32 Law J. Rep. (n.s.) Prob. M. & A. 12. A petition for judicial separation on the ground of cruelty should specify all the acts of the respondent intended to be relied on as constituting cruelty. A general allegation, that during a specified time the DIVORCE AND MATRIMONIAL; (N) Nullity. 203 respondent " committed divers acts of cruelty," ia bad, and ia ground for an order that the petition be amended by specifying such acta, but not for an order that particulars of the acts of cruelty be given. Goldney v. Qoldmey, 32 Law J. Rep. (n.s.) Prob. M. & A. 13. The answer to a suit for restitution of conjugal rights alleged that the petitioner had in a deed of separation ccfvenanted not to compel or endeavour to compel the respondent to cohabit with him : — Held, that the averment was irrelevant, and must be struck out. Hunt V. Hvmt, 32 Law .J. Rep. (n.s.) Prob. M. & A. 168. In answer to a petition for judicial separation on the ground of desertion, the respondent may set out facts shewing that there was reasonable cause for the desertion, but such facts should be stated succinctly. EiU v. Mill, 33 Law J. Rep. (n.s.) Prob. M. & A. 187. Cruelty may consist in the aggregate of the acts alleged in a petition or answer, and each paragraph need not allege an independent act of cruelty suffi- cient in itself to warrant the relief sought. Green v. Green, 33 Law J. Rep. (n.s.) Prob. M. & A. 64. To a petition by a woman for a decree of nullity, on the ground of impotence, the respondent pleaded that since the marriage the petitioner had committed adultery. The Court ordered the plea to be struck out as impertinent. Tavernerv. Ditchford, 33 Law J. Rep. (n.s.) Prob. M. & A. 105. (5) Plea to the Jurisdiction. According to the practice of the Ecclesiastical Courts an objection to the jurisdiction might be taken at any time, though it was more usual that it should be taken at the commencement of the pro- ceedings. The proper course, for a respondent who intends to object to the jurisdiction is to appear under protest, and if he wishes for time to plead to the jurisdiction to apply expressly for time to do so. A minor should sue by guardian and not by attorney. ZychlinsJci v. ZychlinsM,, 31 Law J. Rep. (n.s.) Prob. M. & A. 37 ; 2 Swab. & T. 420. A respondent in a suit for dissolution of marriage who has appeared absolutely cannot plead a dilatory plea, e.g., that by reason of the domicil of the parties the Court has no jurisdiction, nor can he raise such objection by act on petition. Semile, however, that at the hearing he may, notwithstanding, object to the jurisdiction. If a respondent intends to plead a dilatory plea he should appear by person and under protest. Forster v. Forster, 31 Law J. Rep. (n.s.) Prob. M. & A. 185. (c) Plea iy Corespondent of Discretionary Bar. A co-respondent may set up, in answer to a peti- tion for dissolution, conduct of the petitioner, which, under the proviso to the 31st section of the Divorce Act, would give the Court a discretionary power to dismiss the petition ; but he cannot give evidence of it unless it be pleaded. He is not precluded by the 33rd section from pleading it by the insertion in the petition of a claim for damages, though such a defence could not have been pleaded to an action for criminal conversation ; the meaning of that section being, that in such a case the question of damages is to be dealt with, not that the record ia to be framed, in the same manner as in actions for criminal con- versation. Seddon v. Seddon, 30 Law J. Rep. (n.s.) Prob. M. & A. 12. (d) Claim of Damages. Where damages are claimed against the co-respon- dent, the petition should specify the amount claimed. Quwre — Whether the counsel for the co-respondent can, upon his own authority, consent to a petition being amended by the insertion of the amount of damages claimed. Speddvng v. Spedding, 31 Law J. Rep. (n.s.) Prob. M. & A. 96. (e) Petition Try Father of Minor. In a suit for nullity instituted by the father of a minor, it must appear upon the face of the petition whether the father has instituted the suit in his own right or as guardian of the minor. Wells v. Cottam, 33 Law J. Rep. (n.s.) Prob. M. & A. 41; 3 Swab. & T. 364. A guardian cannot appear and plead on behalf of a minor without having been duly elected and appointed. Ibid. [And see ante, (5).] (/) ^ff^ot of Pleading over. An answer to a petition for restitution of conjugal rights, denying that the respondent withdrew from cohabitation without just cause, should state the cause of such withdrawal. If it does not, it is bad on demurrer, but the objection is waived by filing a replication. Ward v. Ward, 32 Law J. Rep. (n.s.) Prob. M. & A. 120. {g) Reforming Pleadings. [See (0) Amendment.] (A) Strihvng out Plea. To a petition by a wife for judicial separation on the ground of cruelty, the respondent pleaded adul- tery. The Court, on motion, refused to order the plea to be struck out, but left the petitioner to demur. Hall V. Hall, 32 Law J. Rep. (n.s.) Prob. M. & A. 117. Quosre — Whether adultery is an answer to a charge of cruelty. Ibid, (0) Amendment. (a) Of Petition. After the hearing of a petition of a wife for dis- solution of marriage on the ground of adultery and cruelty, no decree having been pronounced, the Court allowed the petition to be amended by the addition of a charge of bigamy which came to the knowledge of the petitioner in the interval between the cause being set down for hearing and the hearing. Walker v. Walher, 30 Law J. Rep. (n.s.) Prob. M. & A. 214. After the hearing of an undefended petition had been adjourned for further evidence, an allegation was added to the petition by the leave of the Court, and it was re-served upon the respondent. When it again came on for hearing, the Court treated it as a new petition, and required evidence of all the facts necessary to found a decree, as well as of the addi- tional allegation. Walker v. Walher, 31 Law J. Rep. (n.s.) Prob. M. & A. 117. A' suit for judicial separation may be turned into one for dissolution of marriage without a fresh cita- 204 DIVORCE AND MATRIMONIAL; (O) Amendment. tion. Carilidge v. Cartlidge, 31 Law J. Rep. (n.s.) Prob. M. & A. 135. A wife, who had instituted a suit for judicial separation, on the ground of craelty, subsequently discovered that her husband had also been guilty of adultery. The Court allowed her to amend her peti- tion by adding the charge of adultery, and praying for dissolution of marriage, on the ground of cruelty and adultery, without extracting a fresh citation ; but directed that the petition, when amended, should be re-served. Ibid. A petition for a divorce on the ground of adultery must allege adultery in distinct terms. Amhler v. Ambler, 32 Law J. Rep. (n.s.) Prob. M. & A. 6. A petition by a husband for dissolution of marriage contained an inferential, but not a distinct, charge of adultery at a specified time and place. Personal service on the respondent had been dispetised with. Neither the respondent nor co-respondent appeared. At the hearing, adultery at the said time and place having been proved, the Court allowed the petition to be amended by adding a distinct charge of adultery without requiring the petition to be re-served. Ibid. If at the hearing the Court gives leave to amend the petition to meet the case proved, the petitioner being in court, it may be then amended and a decree nui may be pronounced ; but . if leave to amend is only granted at a subsequent date after taking time to consider, and the petitioner fails to move for a decree until some considerable time after the amend- ment has been made, the decree must bear date on the day when pronounced, and cannot be ante-dated. Ibid. A petition by a husband for dissolution of marriage charged adultery with G and claimed damages. The respondent denied the charge. The co-respondent appeared, but did not file an answer. At the trial, before any witnesses were examined, the claim for damages was withdrawn. The evidence of two wit- nesses tended to prove that the respondent, on the 24th of September, 1861, committed adultery with some person unknown ; and another witness proved that at the same place and time of day, but on the 17th of July, 1861, a man named G had passed some hours in the respondent's company. Upon the application of the petitioner, the petition was then amended by substituting for the charge of adul- tery with G a charge of adultery with some person unknown. The jury found a verdict for the respon- dent. Subsequently a rule for a new trial was made absolute upon afRdavits that the latter witness had made a mistake in her evidence, and that the circum- stance sworn to by her took place on the 24th of September, 1861. Upon the apphcation of the petitioner, the Court ordered the petition and record to be amended by re-inserting the charge of adultery with G upon payment of his costs, but refused to allow the re-insertion of the claim for damages. Jago V. Jago, 32 Law J. Rep. (n.s.) Prob. M. 85 A. 43. When adultery is the ground of a petition it should be distinctly alleged. It is not sufficient to allege that the petitioner " is informed and believes " that the respondent has committed adultery. When leave to amend such a petition is granted, if there is no appearance, it must be re-served. Spilabury v. Spils- bury, 32 Law J. Rep. (n.s.) Prob. M, & A. 126; 3 Swab. & T. 210. Where the respondent is in default by failing to file an answer in due course, he cannot object to a paragraph of the petition on the ground of irrele- vancy. Burrdl v. Bwndl, 32 Law J. Rep. (n.s.) Prob. M. & A. 136. Where in the affidavit verifying the petition for dissolution of marriage the co-respondent's christian name was stated to be John instead of William, and a similar mistake was made in the citation and peti- tion, the Court allowed the citation and petition to be amended, and did not require the affidavit to be re-sworn. Renss v. Rems, 32 Law J. Rep. (n.s.) Prob. M. & A. 168. An application for an order that a pleading be reformed, is an application to the discretion of the Court, and in exercising this discretion the Court will not, as in case of demurrer, consider whether or not the pleading is good in law ; but whether or not it may prejudice the opposite side in the conduct of his case. Griffith v. Griffith, 33 Law J. Rep. (n.s.) Prob. M. & A. 81; 3 Swab. & T. 355. A petition for dissolution of marriage on the ground of adultery and cruelty charged cruelty "in and during the months of April and May 1861." The respondent filed an answer denying the charges of the petition. Upon the trial of the cause, at which the respondent did not appear, the petitioner failed to prove cruelty at the time alleged, but established cruelty in June and July, 1861 : — Held, that the petition might be amended by substituting the date of the cruelty proved. Bunyard v. Bunyard, 32 Law J. Rep. (n.s.) Prob. M. & A. 176. The Court will not order a pleading to be amended unless it is so framed as to embarrass the opposite side. Green v. Green, 33 Law J. Rep. (n.s.) Prob. M. & A. 83. Leave granted to amend a petition for dissolution of marriage by adding a claim for damages. Bart- lett V. Bartlett, 34 Law J. Rep. (n.s.) Prob. M. & A. 64. (5) Of Answer. A co-respondent, in the same paragraph of his answer, charged the petitioner with adultery with several women. The Court rejected a motion that the answer should be amended by inserting each charge in a separate paragraph, but without costs. Bunt V. Sunt, 31 Law J. Rep. (n.s.) Prob. M. & A. 163 ; 2 Swab. & T. 574. To a petition alleging adultery on divers occasions in September and October, 1862, the respondent pleaded a denial of the adultery, and, further, that if she had committed adultery as alleged, the peti- tioner condoned it up to the 29th of September, 1862. The Court refused to order the latter plea to be stnick out upon motion. Windham v. Windham, 32 Law J. Rep. (n.s.) Prob. M. & A. 89. A wife petitioned for judicial separation, on the ground of cruelty and adultery ; the respondent traversed the charges, and afterwards obtained leave to amend his answer by adding a counter-charge of adultery. Before leave to amend was granted, and after an order for payment of the wife's taxed costs, the respondent became bankrupt on his own petition. An application to rescind the order for the amend- ment of the answer, on the ground that the respon- dent had become bankrupt solely for the purpose of avoiding payment of his wife's costs, and that the DIVORCE AND MATRIMONIAL^ (P) Evidence. 205 Older was made by the Court in ignorance of the bankruptcy, was rejected. Qreatorex v. Greatorex, Zi Law J. Rep. (n.s.) Prob. M. & A. 9. (c) Of Appearance. By appearing absolutely a respondent admits the jurisdiction of the Court, and he will not be allowed afterwards to amend the appearance by appearing under protest with a view to plead to the jurisdiction. Oarstim v. De Qarston, 34 Law J. Rep. (n.s.) Prob. M. & A. 45j 4 Swab. &T. 73. (P) EVIDENOE. (a) In general. Evidence of acts of adultery, subsequent to the date of the latest act charged in the petition, is admissible, for the purpose of shewing the character and quality of previous acts of improper familiarity. Boddy V. Boddy, 30 Law J. Rep. (n.s.) Prob. M. & A. 23. Upon the question of incapacity, although no application had been made for a monition or order for a personal inspection of either of the parties, the Court received medical evidence of an examination. Sen-ell v. Serrell, 31 Law J. Rep. (s.s.) Prob. M. & A. 55 ; 2 Swab. & T. 422. Evidence to prove a species of cruelty not pleaded in the petition is not admissible ; though evidence of violent demeanour and language not pleaded, but leading up to and making probable acts of violence pleaded, may be admissible. Jewell v. Jewell, 2 Swab. & T. 573. In an undefended suit the Court refused to admit evidence that the respondent had infected the petitioner with the venereal disease, there being no allegation in the petition that cruelty of that nature had been committed, although there was a general charge of cruelty. Squires v. Squires, 33 Law J. Rep. (ir.s.) Prob. M. & A. 172 ; 3 Swab. & T. 541. (5) Of the Pwrties. [See (Q) Witness.] (c) Admissions on tJie Pleadings. When the Queen's Proctor intervenes, and alleges matter which would be ground for reversing a decree nisi for dissolution of marriage, and such allegations are admitted by the petitioner by his replication, the Court will act on those admissions without requiring the proof of the facts admitted. BouUon v. Boulton, 31 Law J. Rep. (n.s.) Prob. M. & A. 115; 2 Swab. & T. 638. When, after a decree nin for dissolution of marriage at the suit of the husband had been pro- nounced, the Queen's Proctor intervened, and pleaded that the petitioner and the respondent had been acting in collusion for the purpose of obtaining a divorce, contrary to the justice of the case, and with that intent kept from the knowledge of the Court that the petitioner had been guilty of bigamy and adultery, and had by such conduct conduced to his wife's adultery, and the petitioner replied, admitting the charges of bigamy and adultery, but denying collusion, and that his conduct had conduced to the adultery of his wife, and pleaded that before the bigamy his wife had been guilty of adultery, the Court, upon the admissions in the replication, with- out requiring evidence of the facts therein stated, reversed the decree nisi, dismissed the petition, and condemned the petitioner in the costs of the inter- vention. Ibid. (d) Depositions. Where a witness permanently resident abroad is examined under a commission, the presumption is, that the residence abroad continues at the time of the trial, and but slight evidence of his absence abroad is sufficient. But to make the deposition of a witness examined under a commission on account of his intended temporary absence abroad, or on account of illness, admissible at the trial, clear proof must be given that he is beyond the jurisdic- tion, or unable from illness to attend. Pollack v. PoUach; Mills v. Mills, 30 Law J. Rep. (n.s.) Prob. M. & A. 183; 2 Swab. & T. 310. Qucere — Whether the examination of a witness taken under the order of the Court can be read in evidence at the trial, if the witness is prevented from attending it by pregnancy only. Haviland v. HavUand, 32 Law J. Rep. (n.s.) Prob. M. & A. 144. The written statements by a sick person to a medical man of the symptoms of his malady are not admissible in evidence, although the medical man has given advice upon the faith of such state- ment. Witt V. Witt, 32 Law J. Rep. (n.s.) Prob. M. & A. 179; 3 Swab. & T. 143. (e) Proceedmgs in other Suits : Estoppel. A verdict obtained upon the evidence of the par- ties to a suit, and the decree founded thereon, are not admissible, as evidence of the facts thereby established, in another suit between the same parties ^in, which their evidence is inadmissible. Stoate v. ^toaie, 30 Law J. Rep. (n.s.) Prob. M. & A. 102 ; 2 Swab. &T. 223. In a suit by the wife for judicial separation, on the ground of cruelty and desertion, a jury having, upon the evidence of the parties and others, found the charges proved, the Court decreed a judicial separation: — Held, in a suit by the husband for dis- solution of marriage on the ground of the wife's adultery, that the verdict and decree in the suit for judicial separation were not admissible in evidence to prove charges of cruelty and desertion set up by the wife in her answer, because to admit them would be in effect to make use of the evidence of the parties in a suit in which their evidence was in. admissible. Ibid. The Court will not order that the evidence taken under a commission in a cross-suit may be used at the hearing of a suit between the same parties. Hill v. Sill, 30 Law J. Rep. (n.s.) Prob. M. & A. 197. The principle on which the common law doctrine of estoppel rests is applicable to matrimonial suits, and, therefore, the judgment of this Court, upon a matter directly in issue, is conclusive upon the same matter between the same parties in another suit, Sopwiih V. Sopwith, 30 Law J. Rep. (n.s.) Prob. M. & A. 131 ; 2 Swab. & T. 160. Semhle, however, if the same issue be triable on different principles as to the admissibility of evidence in the two suits, that the doctrine of estoppel would not apply. Ibid. Where a matter (e.g. adultery) is pleaded by way of defence to a matrimonial suit, the same strictness 206 DIVORCE AND MATRIMONIAL; (P) Evidence. of proof 18 required to establish it as if it had been alleged in a petition as the foundation of a suit. Ibid. In a suit, by a wife, for a judicial separation, on the ground of adultery, the husband denied the adultery, and upon the trial of that issue the Court pronounced that the adultery was not proved, and dismissed the petition. The husband subsequently filed a petition for restitution of conjugal rights : — Held, that the wife was estopped from pleading in bar the same acts of adultery as those alleged in the former suit. Ibid. A decree founded on the evidence of the parties does not estop them from controverting, in another suit in which such evidence is inadmissible, a fact found by the decree. Bancroft v. Bancroft, 34 Law J. Rep. (if.s.) Prob. M. & A. 14 ; 3 Swab. & T. 597. (/) Priwileged Communications. A petitioner in a suit for judicial separation was asked, in cross-examination, if she had not instructed her solicitor to institute a suit for restitution of con- jugal rights instead of a suit for judicial separation : — Held, that she was bound to answer the question. Maccann v. Maccann, 32 Law J. Rep. (n.s.) Prob. M. & A. 29; 3 Swab. & T. 142. (g) Proof of Marriage. (1) In British Colonies. Marriages of British subjects in British planta- tions are governed by the common law of England, unless it is otherwise provided by the Imperial legislature or that of the colony. Therefore, evi- dence of the solemnization by a clergyman of the Church of England according to the rites and cere- monies of that Church and of cohabitation, was held sufficient proof of a marriage between British sub- jects in Norfolk Island, then a British penal settle- ment. Limerich v. LimericTc, 32 Law J. Rep. (n.s.) Prob. M. & A. 92. (2) In Foreign Countries. A certificate of a marriage in a foreign country, not purporting to be a copy of an entry in the re- gister of marriages kept by the law of that country, but only containing a reference to the register, can- not be received as evidence of the marriage, although it would be evidence of the marriage in the foreign courts. Pimlay v. Finlay, 31 Law J. Rep. (n.s.) Prob. M. & A. 149. In a suit for dissolution of marriage, it appeared that the petitioner and respondent had lived together for five years in Virginia, and were received in society as man and wife ; that by the law in force in Virginia, when the cohabitation began, no religious ceremony was necessary to the validity of a marriage, nor was any registry of marriages required to be kept ; and that in consequence of war in Virginia, the record of any religious ceremony which might have taken place could not now be obtained: — Held, that there was sufficient proof of the mar- riage. Rooher v. RooTcer, 33 Law J. Rep. (n.s.) Prob. M. & A. 42 ; 3 Swab. & T. 576. Identity may be proved by circumstantial evi- dence. Ibid. (A) In Aggravation of Damages. On an issue of adultery raised between husband and wife, to be tried by a jury, who have also to assess damages against a co-respondent who has not appeared, no evidence which ia not admissible against the respondent can be given to shew that the co-respondent has been guilty of adultery; but evidence in aggravation of damages is admissible. The jury found a verdict for the respondent, and assessed the damages at one farthing. Stone v. Stme, 3 Swab. & T. 608. (Q) Witness. {a) Oompetemcy. In answer to a petition for dissolution of marriage on the ground of adultery, the wife pleaded counter- charges of cruelty and desertion, and prayed for a judicial separation : — Held, that the wife's evidence was inadmissible to prove cruelty and desertion. Whittal V. Whiaal, 30 Law J. Rep. (n.s.) Prob. M. & A. 43. The fact that a husband's answer to a suit for restitution of conjugal rights pleads adultery by the wife, and prays a judicial separation, does not render the evidence of the husband inadmissible. Bur- roughs V. Burroughs, 31 Law J. Rep. (n.s.) Prob. M. & A. 66; 2 Swab. & T. 544. In a suit by a wife for judicial separation on the ground of adultery coupled with cruelty, the evi- dence of the parties is inadmissible ; but if the hus- band 'has appeared and"" has filed an answer, the Court will at the hearing, upon the wife abandoning the charge of adultery, allow it to be struck out of the petition, in order that such evidence may be admitted. Hudson v. Hudson, 32 Law J. Rep. (n.s.) Prob. M. & A. 5; 3 Swab. & T. 314. Petition for judicial separation dismissed upon the facts proved. Ibid. In a suit by a husband for dissolution of marriage, the only evidence of the wife's adultery was a con- fession by her and proof of some slight familiarities between her and the co-respondent. The Court deemed this evidence insufficient, and under the 43rd section of 20 & 21 Vict. c. 85. examined the petitioner, who was the sole witness of an act of impropriety conclusively proving adultery, and upon his evidence pronounced a decree nisi, but refused to condemn the co-respondent, who had not been personally served, in costs. Tatham v. Taiham, 33 Law J. Rep. (n.s.) Prob. M. & A. 140: 3 Swab. & T. 511. (6) Commission to examine. Where the husband applies for a commission to examine witnesses abroad, and the wife does not oppose, the Court will grant the application, upon the husband's paying into the registry a sum suf- ficient to defray the wife's expenses incidental thereto. Baily v. Baily, 30 Law J. Rep. (n.s.) Prob. M. & A. 47; 2 Swab. & T. 112. As a general rule, a. commission to examine wit- nesses in a suit will not be granted before issue joined. Shaw v. Shaw, 31 Law J. Rep. (n.s.) Prob. M. & A. 95 ; 2 Swab. & T. 642. When a commission to examine witnesses is granted in a suit in which no appearance haa been entered, the Commissioner is nominated in the registry, and not by the petitioner. Lodgev. Lodge, 32 Law J. Rep. (n.s.) Prob. M. & A. 93. DIVORCE AND MATRlMONIALi (R) Alimony. 207 An application for a commission to examine wit- nesses may be refused on the ground of unreasonable delay. Stone v. Stone, 34 Law J. Rep. (n.S.) Prob. M. & A. 33. (c; Examination. (1) Notice of. Where a notice was served on the respondent's attorney in London, at two o'clock on Saturday, that a witness would be examined under an order of Court on the following Monday at Bath, the Court held that such notice was insufficient, and rejected the deposition. Fitzgerald v. Fitzgerald,, 33 Law J. Kep. (N.s.) Prob. M. & A. 39 ; 3 Swab. &, T. 397. (2) Befme Trial. In a suit for dissolution of marriage, the Court, before the time for entering an appearance by the co-respondent had expired, allowed the petitioner to examine a proposed witness who was dangerously ill. Stone V. Stone, 31 Law J. Rep. (if.s.) Prob. M. & A. 136. When a petition has been filed the Court will allow witnesses who are about to go abroad to be examined before service of the citation. Brown v. Brown, 33 Law J. Rep. (s.s.) Prob. M. & A. 203. Qucere — Whether depositions taken upon such an examination are admissible in evidence at the hearing. Ibid. (3) At the Trial. Where, at the hearing of a suit for dissolution of marriage, the petitioner, in pursuance of an order under section 43. of the 20 & 21 Vict. c. 85, is present ; if the Court allows the counsel of the respondent to call him, he must be treated as the witness of the respondent. He cannot be cross-examined by the respondent ; and before he is sworn the respondent's case must be opened. Gilee v. Giles, 32 Law J. Rep. (N.s.) Prob. M. & A. 209. If the respondent's counsel calls witnesses, the Court will expect him to open his own case and comment on the petitioner's evidence before he calls his own witnesses. If the co-respondent's counsel examines a witness called by the respondent, he can do so only by way of examination in chief, adopting the witness as his own. Qlennie v. Olennie, 3 Swab. & T. 109. (d) Cross-examination. If a wife, in a suit by her for dissolution of mar- riage, on the ground of adultery and cruelty, gives evidence in support of the charge of cruelty, she cannot, in cross-examination, be asked questions tending to shew that she has been guilty of adultery. Fisher v. Fisher, fiO Law J. Rep. (h.s.) Prob. M. & A. 24. A respondent who, in his answer, simply denies the cruelty charged in a petition, may cross-examine the petitioner, if called, as to her general conduct, for the purpose of impeaching her credit, but her answer as to any matters not bearing upon the issue cannot be contradicted. Baker v. Balcer, 32 Law J. Rep. (N.S.) Prob. M. & A. 145 ; 3 Swab. & T. 213. (c) Evidence to contradict. Under the 23rd section of "The Common Law Procedure Act, 1854," 17 & 18 Vict. c. 125, it is not competent for a party to prove that his own witness has formerly made a statement inconsistent with his present testimony. Ryberg v. Ryherg, 32 L;iw J. Rep. (h.s.) Prob. M. & A. 112. A petition by a husband for dissolution of mar- riage claimed damages. The co-respondent traversed the adultery, and charged the petitioner with cruelty. At the trial the petitioner called witnesses as to his general conduct towards his wife ; and on the part of the co-respondent evidence was given of specific acts of cruelty : — Held, that, in reply, the petitioner might call witnesses to contradict the evidence of specific acts of cruelty, but not to prove his general conduct. Narracott v. Na/rracott, 33 Law J. Rep. (n.s.) Prob. M. & A. 61; 3 Swab. & T. 408. (R) Alimony. (a) Pendente Lite. (1) Right to. By obtaining an order of protection, a wife does not deprive herself of her right to alimony pendente lite in a suit subsequently instituted by her for dis- solution of marriage. HdkewiU v. SakewUl, 30 Law J. Rep. (n.s.) Prob. M. & A. 254. The institution of vexatious suits, by the wife against the husband, is a ground for allotting ali- mony pendente lite at less than the usual rate. Ibid. Where the husband^ a pilot in the Bengal pilotage service, whose annual salary, when on full pay, was 640?., was, at the time of an application for alimony pendente lite, in England, upon six months' leave of absence without pay, and he had neither property nor income, the Court refused to allot alimony. Fletcher v. Fletcher, 31 Law J. Rep. (N.s.) Prob. M. & A. 82 ; 2 Swab. & T. 434. Where the husband, a respondent, has not entered an appearance, aWraony pendente lite by consent will not be allotted. Clarice v. Clarke, 31 Law J. Rep. (N.S.) Prob. M. & A. 165. In a suit for dissolution of marriage, instituted by an infant husband, by his guardian, it appeared from the answer to a petition for alimony ^e«(ie«fe liteWiKt the sole property to which the husband was entitled was a contingent reversionary interest : — Held, that the wife was not entitled to alimony. Beavan v. Beaman, 31 Law J. Rep. (n.s.) Prob. M. & A. 166 ; 2 Swab. & T. 652. In allotting alimony pendente lite the wife must be considered as innocent. Her omission to file an answer to a petition charging her with adultery is no ground for refusing to allot alimony or allotting less than the usual amount. Smith v. Smith, 32 Law J. Rep. (n.s.) Prob. M. & A. 91. Where the answer to a petition for alimony alleged that the wife was in possession of property of the husband, the Court refused to allot alimony until she should account for the same. Bremner v. Brem- ner, 32 Law J. Rep. (n.s.) Prob. M. & A. 119 ; 3 Swab. & T. 249. Where the husband had no income, and his only property was a legacy of 5001., not payable until eleven months after the application for alimony, the Court refused to aWolalimony pendente lite. Brown v. Brown, 32 Law J. Rep. (n.s.) Prob. M. & A. 144 ; 3 Swab. & T. 217. A wife who is undergoing a sentence of imprison- ment for felony is, nevertheless, entitled to alimony 208 DIVORCE AND MATRIMONIAL; (R) Alimony. pendente lite. Kelly v. Kdly, 32 Law J. Eep. (n.s.) Prob. M. & A. 181. An order that alimony pejidente lite be paid to the wife will, on her application, be varied by making the alimony payable to the wife or to her solicitor, but she must bear the costs of the application. Ibid. Where a wife was undergoing a sentence of im- prisonment the Court refused so to vary the order without an affidavit by her that she wished the alteration to be made. Ibid. Where a husband in his answer alleged that he was in insolvent circumstances, and that his only income was weekly wages of meat, drink, washing and lodging, and 4s. a week, the Court refused to allot alimony pendente lite. Semble — That a wife, by applying to the Court for an allotment of alimony, upon the husband's answer is not precluded from afterwards examining witnesses in support of her petition. Capstichy. Capstick, 33 Law J. Rep. (if.3.) Prob. M. & A. 105. (2) When and how long payable. The wife is Entitled to an allotment of alimony pendente lite at any time before the hearing, although evidence has been taken de iene esse in support of the petition which proves that she has been guilty of adultery. Phillips v. Phillips, 34 Law J. Rep. (N.a.) Prob. M. & A. 107; 4 Swab. & T. 129. A decree nisi for dissolution of marriage is final as between the parties, and therefore on such a decree being pronounced, alimony pendente lite ceases to be payable. Where a husband has obtained such a decree, the Court will not make it absolute, though the time for doing so has arrived, until arrears of alimony pendente lite are paid. Latham v. Latham, 30 Law J. Rep. (n.s.) Prob. M. & A. 163 ; 2 Swab. & T. 299. Alimony pmdente lite is payable from the date of the service, not of the return, of the citation. Nichol- son V. Nicholson, 31 Law J. Rep. (n.s.) Prob. M. & A. 165. Semble — That alimony pendente lite in a suit by a husband continues payable after a decree nisi, and until it is made absolute. Nicholson v. Nicholson, 32 Law J. Rep. (n.s.) Prob. M. & A. 127; 3 Swab.& T. 214. In suits for dissolution of marriage on the ground of the wife's adultery, alimony pendenie Ute ceases when the adultery has been finally established. Therefore, if the cause is heard by the Court, it ceases when the decree nisi is pronounced ; if it is tried by a jury, it ceases when the time for moving for a new trial has elapsed without an application for a new trial being made, or if such a motion has been made and refused, when the time for appealing against such refusal has elapsed. Wells v. Wells, 33 Law J. Rep. (n.s.) Prob. M. &. A. 151 ; 3 Swab. & T. 542. The trial of a suit by the wife for judicial separa- tion being postponed at her instance, the Court directed the payment of the alimony pendente Ute which had been allotted to her to be suspended from the date of the postponement until the cause was tried. Sogers v. Sogers, 34 Law J. Rep. (n.s.) Prob. M. & A. 87; 4 Swab. & T. 82. (3) Amount of, and how ascertained. When the accounts of the husband's income, in his answer to a petition for alimony, are compli- cated, the Court may refer it to the Registrar to ascertain what is the amount of income admitted by the answer. Smith v. Smith, 30 Law J. Rep. (n.s.) Prob. M. & A. 207. In accordance with the practice of the Ecclesi- astical Courts, d husband is not entitled to deduct from his income the annual premium payable upon a policy of insurance upon his life ; but where such a policy was settled upon trust for the benefit of his wife and children after his death, and the annual premium was deducted by his employers from his salary, and paid over by them to the insurance office in pursuance of an agreement with them, the Court deducted the amount of the premium in estimating his income. Forster v. JForster, 31 Law J. Rep. (n.s.) Prob. M. & A. 84 ; 2 Swab. &T. 553. Where the answer to a petition for alimony alleges that property of which the husband is owner is mort- gaged, it should state the date of the mortgage and the name of the mortgagee as well as the amount of the mortgage debt. Oramvpton. v. Crampton, 32 Law J. Eep. (n.s.) Prob. M. & A. 142. All the valuable property of the husband will be taken into account in allotting alimony, although he may derive no income from it. Therefore the value of shares in a joint-stock company, although no divi- dend is payable upon them, and the annual value of houses occupied by the husband or by others rent free, should be stated in the answer. Ibid. Payments made by the husband to the wife, since the service of the citation, will be deducted from alimony pendente lite. Ibid. The adultery of the wife is no ground for allot- ting less than the usual amount of alimony pendente lite, and the averment of such adultery in the answer is irrelevant. Ibid. The circumstance that the husband has to main- tain several children, the issue of a former marriage, is no ground for allotting less than one-fifth of his income as alimony pendente lite. Hill v. HiU, 33 Law J. Rep. (n.s.) Prob. M. & A. 104. (4) To whom payable. The Court will not make an order for the pay- ment of alimony pendente lite to the wife's attorney without a written consent from her. Brovm v. Brovm, 34 Law J. Rep. (n.s.) Prob. M. & A. 102 : 4 Swab. & T. 144. (5) Permanent Alimony. [See ante, (A), ffarmer v. Marmer.} (1) Wlien and on what Principles awarded. The amount of permanent alimony is not varied by the amount of marital delinquency. In allotting it regard should be had to the status of both parties, but it can never be increased in order to mulct the guilty party, ffooper v. ffooper, 30 Law J. Rep. (n.s.) Prob. M. & A. 49. In the absence of proof that the husband's income has altered, permanent alimony will be awarded upon the income upon which alimony pendente lite was allotted, and neither party will be allowed to dispute the correctness of the estimate then taken. Franks v. Franks, 31 Law J. Rep. (n.s.) Prob. M. & A. 25. '^ ^ / Q,WBre — Whether, upon the application for perma- nent alimony, a party can shew that there has been DIVORCE AND MATRIMONIAL; (R) Alimony. 209 such alteration in the husband's income, unless he has previously filed a pleading setting forth the facts on which he relies. Ibid. In the absence of proof that the husband's income has altered since the application for alimony yc)i- demte Ute, permanent alimony will be allotted upon that which appeared then to be his income, although the wife may since have discovered that his income at that time was greater. Oremwood v. Qreenviood, 32 Law J. Eep. (n.s.) Prob. M. & A. 136. Where the husband's income has diminished since the allotment of alimony pendente lite, he may, upon the application for permanent alimony, bring that fact before the Court by affidavit. It is not necessary that he should file a petition alleging such a diminu- tion. Domes v. Davies, 32 Law J. Rep. (n.s.) Prob. M. & A. 152. Principles of allotment. WUeochs v. Wilcochs, 32 Law J. Rep. (n.s.) Prob. M. & A. 205. Where a petition for alimony alleges that the husband has a "net annual income of," &c., he must in his answer state the amount of his gross income, and specify any deductions claimed. It is not sufficient if he states merely the amount of his net annual income. NoJces v. Nohes, 83 Law J. Rep. (n.s.) Prob. M. & A. 24; 3 Swab. & T. 629. In stating the income derived from land, the answer should state the gross rental and specify the outgoings. Ibid. An allegation in an answer, " to the best of my judgment I value my stock-in-trade at," &c., is sufficient. Ibid. The wife applied for permanent alimony on a decree for judicial separation by reason of cruelty. The husband stated on affidavit that, since the petition for alimony pendente lite, he had parted with his business (which was the principal source of income) for a yearly payment of 3002. for seven years, and 5 per cent, on the value of warehouse, stock-in-trade, debts, &c. The Court held that, in allotting alimony, the 3002. yearly must be taken as income, observing that, if the income really failed, the husband could apply for reduction of alimony. Moore v. Moore, 3 Swab. & T. 606. The Court possesses larger powers than the Eccle- siastical Courts possessed to enforce orders for the payment of alimony. But in making orders for the payment of permanent alimony after a decree of judicial separation, it is bound by the same rules as the Ecclesiastical Courts, and therefore it will not order a husband to execute a deed charging his property with the payment of alimony, as it would thereby prevent him from making use of his pro- perty for the purpose of endeavouring to increase his income. Hyde v. Hyde, 34 Law J, Rep. (n.s.) Prob. M. & A. 63; 4 Swab.. & T. 80. In allotting permanent alimony the husband's income in respect of an annuity payable to him for a term of ten years must be taken during the term ' to be the amount of the annuity, and not a per- centage on the present value of the annuity. Moore V. Moore, 34 Law J, Rep. (n.s.) Prob. M. & A. 146. (2) ATiunmt awarded. Where the only income of the husband was 60?. a year, derived from independent property, and it appeared that he had turned his wife out of doors, and that his mistress was living with him, the Court DiSBST, 1860—65. awarded a moiety of the income as permanent ali- mony. AvUa V. Avila, 31 Law J. Rep. (n.s.) Prob. M. & A. 176. (3) DedMCtiom. In allotting alimony where the wife is supporting herself by her own exertions, her earnings must be taken into consideration. Ooodheim, v. Ooodheim, 30 Law J. Rep. (n.s.) Prob. M. & A. 162 ; 2 Swab. & T. 250. In the allotment of alimony, a voluntary annual allowance made to the husband by a parent forms no part of the husband's faculties. Hamlcmd v. Haviland, 32 Law J. Rep. (n.s.) Prob. M. & A. 67; 3 Swab. & T. 114. Upon the allotment of alimony, if a husband has contracted to pay off a debt by annual instalments, the amount of each instalment may be deducted from his annual income. Patterson v. Patterson, 33 Law J. Rep. (n.s.) Prob. M. & A. 36. (4) Examination as to. Where the answer of a husband to a petition for alimony is not sufficiently explicit, he will, under the 12th rule of Further Rules, be ordered to give a further and fuller answer; but he will not be ordered to attend the hearing that he may be examined in open court, unless his answer is evasive. Clarh v. Clark, 31 Law J. Rep. (n.s.) Prob. M. & A. 32. (5) To whom, payable. When alimony is by the terms of the order allotting it made payable to the wife, the husband is not bound, at her request, to pay it to her solicitor. The Court allowed such an order to be amended by making the alimony payable to the wife's solicitor, but refused to allow her the costs of the motion. Parr v. Parr, 32 Law J. Rep. (n.s.) Prob. M. & A. 90. (6) Other Matters. If permanent alimony has been allotted to a wife on her obtaining a decree of judicial separation, and the husband afterwards obtains a decree nisi for dis- solution of marriage on the ground of her adultery, the Court will not, before that decree has been made absolute, discharge the order for payment of alimony. Stoate v. Sloate, 30 Law J. Rep. (n.s.) Prob. M. & A. 108. Under Rule 29, which requires that eight days at least before moving for permanent alimony notice of the motion should be given, the eight days must be reckoned exclusive of the day on which the notice is given and of that on which the motion is made. MolAnaon v. Bn^vmon, 30 Law J. Rep. (n.s.) Prob. M. & A. 189. Where a wife was the unsuccessful party in two suits, the one brought by herself for a judicial sepa- ration on the ground of cruelty, the other by the husband on the ground of adultery, the Court refused to entertain a petition by her for permanent alimony, filed subsequently to the rule mm, and antecedently to the final decree. Qacere — Whether the decree nisi is not final as regards the parties. Winslone v. Winstane, 30 Law J. Rep. (n.s.) Prob. M. & A. 109; 2 Swab. & T. 246. After a decree nwi for dissolution of marriage at the suit of the wife, the husband will not be ordered 2E 210 DIVORCE AND MATRIMONIAL; (R) Alimony. to attend in court that he may be examined on his answer to the petition for alimony pendente lite, with a view to getting an order that he secure a provision to the wife under the 32nd section of the 20 & 21 Vict. t. 85. The wife may, however, examine witnesses to shew the husband's means. Mead v. Mead, 31 Law J. Rep. (n.s.) Prob. M. & A. 30. Where an answer is filed to a petition for alimony pendente lite, but no such alimony is allotted, and the wife afterwards applies for permanent alimony, she will not be allowed to file a fresh petition, but, upon giving notice, may examine witnesses to con- tradict the statements in the husband's answer to the petition for alimony pendente lite. SyJces v. SyJces, 31 Law J. Rep. (n.s.) Prob. M. & A. 38. If upon an application for permanent alimony the wife desires to shew that the husband's income has increased or that her own has diminished since alimony pendente lite was allotted, her proper course is to file a petition alleging such increase or diminu- tion. Fish V. Fish, 31 Law J. Rep. (n.s.) Prob. M. & A. 60. Qucere — Whether when such a petition has been filed, respondent is entitled to file an answer thereto. Ibid. The original order for payment of alimony is entered in the court book, and an office copy of it is delivered to the party in whose favour it is made. Parr v. Farr, 32 Law J. Rep. (n.s.) Prob. M. & A. 91. The proper mode of efffecting service of such an order is to leave a copy, and at the same time to produce the original office copy. Ibid. (c) Permanent Maintenance. (1) For the Wife. Qucere — Whether, when a decree niH for dissolu- tion of marriage has been pronounced, the Court can, before the time for making it absolute has arrived, order that the husband make a provision for the wife, under section 32. of 20 & 21 Vict. c. 85. iMxton v. LaxLon, 30 Law J. Rep. (n.s.) Prob. M. & A. 208. Qittere — Whether Latham v. Latham is rightly decided. Ibid. The rule of the Ecclesiastical Courts as to the amount of permanent alimony awarded to a wife who had obtained a divorce a mensa et ihoro, furnishes no guide for the exercise of the discretion of the Court in determining what provision should be made by a husband for a wife who has obtained a decree of dissolution of marriage. The principles by which the Court will be guided in exercising that discretion are, that the wife having by her husband's miscon- duct been deprived of her position, she ought not to purchase redress at the cost of being left destitute ; that it would be impolitic to give a wife any great pecuniary interest in obtaining a dissolution of the marriage tie; and that such provision should be payable only so long as the wife remains chaste and unmarried. Fisher v. Fisher, 31 Law J. Rep. (n.s.) Prob. M. & A. 1; 2 Swab. & T. 410. Where a wife, who had obtained a decree of dis- solution of marriage, had no fortune, and her husband had some, and also trading profits, neither large nor certain, the Court considered that the wife was entitled to a maintenance only, and ordered that the husband should secure to her an annuity of iOOl. for the support of herself and her daughter, payable so long as she should remain chaste and unmarried, to be reduced to 80^. if the daughter should die or marry. Ibid. In exercising the power given by the 32nd section of 20 & 21 Vict. u. 85, of ordering the husband to make provision for a wife who has obtained a decree of dissolution of marriage, the Court will generally be guided by the principles laid down in Fisher v. Fisher, where the husband was ordered to secure to the wife, so long as she should remain chaste and unmarried, an annuity sufficient to maintain her. There may, however, be circumstances in a case which would justify the Court in ordering a more liberal provision for the wife. A wife having obtained a decree of dissolution of marriage on the ground of adultery and desertion, the Court, taking into consi- deration the conduct of the parties and other circum- stances, ordered the husband to secure to her the payment of the sum of 2,000i. absolutely. Morris V. Morris, 31 Law J. Rep. (n.s.) Prob. M. & A. 33. The Court has no jurisdiction to order that a husband should make a provision for a wife sepa- rated from him on the ground of her cruelty. Dart V. Dart, 32 Law J. Rep. (n.s.) Prob. M. & A. 125; 3 Swab. & T. 208. In awarding a permanent provision under the 32nd section of the 20 & 21 Vict. c. 85. to a woman whose marriage has been dissolved by reason of her husband's misconduct, the Court will in future act upon the same principles as those upon which the Ecclesiastical Courts allotted permanent alimony after a decree of divorce a mensa et thoro, and will order him to secure to her about one-third of the joint income. Fisher v. Fisher overruled. Sidney v. Sidney, 34 Law J. Rep. (n.s.) Prob. M. & A. 122 ; 4 Swab. & T. 178. An order for permanent provision under the 32nd section forms part of the decree absolute. Ibid. After a decree nid for dissolution of marriage at the suit of the wife, an application was made, under section 32. of 20 & 21 Vict. c. 85, for an order that the husband should secure to his wife a sum of money; but as it appeared that the husband's income, derived from a profession, only amounted to ZOOl. a year, and the wife, in addi^on to an income of 12Z., was entitled in reversion on the death of a person aged eighty to property which would produce an income of 701., the Court declined to make any order. Rawlins v. Rawlins, 34 Law J. Rep. (n.s.) Prob. M. & A. 147; 4 Swab. & T. 158. (2) Fm Child/rm. Where a decree of judicial separation at the suit of the wife had been pronounced, and the Court had ordered that she should have the custody of three children, all under the age of seven, alimony pendente lite having been allotted on the assumption that the husband's income was 400?. per annum, the Court allotted to the wife 1601. per annum as per- manent alimony, 1001. for herself and 201. per annum for each of the children. Whildon v. Whil- don, 30 Law J. Rep. (k.s.) Prob. M. & A. 174; mom. Whieldon v. Whieldm, 2 Swab. & T. 388. On pronouncing a decree nisi for dissolution of marriage on the ground of the adultery of a wife, DIVORCE AND MATRIMONIAL; (R) Alimony. 211 who on her marriage had a fortune of l,67Sl., which was not settled, but was received by the husband, the Court ordered that the husband should settle l,000i. upon trust that the interest be applied for the bene6t of the wife so long as she conducted herself properly and remained unmarried ; and that upon her interest ceasing, the fund should be held in trust for the children of the marriage In equal shares ; that the 1,000/. damages awarded against the co-respondent should be paid to the husband in lieu of the sum he would have to settle, and that the decree should be suspended until the settlement should be made. Bent V. Bent, 30 Law J. Rep. (n.s.) Prob. M. & A. 175 ; 2 Swab. & T. 392. A wife was entitled to the interest of 4,0002. vested in trustees for her life, with a power of appointment amongst her children. In a suit for judicial separation on the ground of her adultery, the adultery having been proved, the Court ordered that the trustees of the wife should pay over a moiety of her income to trustees named by the petitioner to be applied by the latter to the maintenance and education of the children of the marriage. The Court cannot interfere with a power of appointment vested in a wife. Seatle v. Seatle, 30 Law J. Rep. (n.s.) Prob. M. & A. 216. The Court has no power to order that a provision should be made for the maintenance and education of a child above the age of sixteen. Weister v. Webster, 31 Law J. Rep. (n.s.) Prob; M. & A. 184. (3) Settled Property. The Court will not make an order as to the appli- cation of the settled property of the parties until after a decree nisi for dissolution of marriage has been made absolute. Home v. Mome, 30 Law J. Rep. (n.s.) Prob. M. & A. 111. On an application for an order as to settled pro- perty, the settlement should be brought before the Court upon affidavit, and the Court upon considera- tion of the facts proved at the trial will decide as to the order to be made. Home v. Home, 30 Law J. Rep. (n.s.) Prob. M. & A. 200. A respondent who is served with a copy of a peti- tion for dissolution of marriage, praying also for an order as to the settled property,if he does not appear, is not entitled to notice of the application. Ibid. Under a post-nuptial settlement, two-thirds of the dividends of certain stock, to which the wife at the time of the marriage was entitled, were settled upon the wife for life for her separate use, and the re- maining one-third on the husband for life, with beneiit of survivorship for life, the corpus of the said fund, after the death of the survivor, to go to the issue of the marriage. The Court directed that, until further orders, the husband's portion of the income of the settled property should be paid to the wife, and in the event of her death in his life- time the whole of the income, until further order, should be apphed to the benefit of the child. Boyn^ ton v. Boynion, 30 Law J. Rep. (n.s.) Prob. M. & A. 156 ; 2 Swab. & T. 275. By a marriage settlement property was settled upon the husband for life, then upon the wife for life, then upon the children of the marriage. The marriage having been dissolved on the ground of the adultery of the wife, who continued to cohabit with the co-respondent, the Court, under section 5. of 22 & 23 Vict. c. 61, ordered that after the death of the petitioner the settled property should, in the event of the respondent surviving the petitioner, be applied to the benefit of the children of the marriage as if the respondent were dead. Pewrce v. Pewrce, .30 Law J. Rep. (n.s.) Prob. M. & A. 182. By settlements made before and after the marriage 724/. consols, the property of the husband, and 700/., and also some leaseholds, the property of the wife's father, were settled upon the wife for life, and after her death on the husband for life, and after the death of the survivor upon the children of the marriage. The Court, after a decree absolute for dissolution of marriage at the suit of the wife, made an order, under section 6. of 22 & 23 Vict. c. 61, that the trustees of the settlements should deal with the pro- ceeds of the property which came from the wife as if the husband was dead at the date of the decree abso- lute, but as to the 724/. settled by the husband, refused to alter the settlement. Johnson v. Johnson, 31 Law J. Rep. (n.s.) Prob. M. & A. 29. The Court has no power in a suit for dissolution of marriage to alter the settlements where there is no issue of the marriage. Dempster v. Dempster, 31 Law J. Rep. (n.s.) Prob. M. & A. 113. By an ante-nuptial settlement personal property of the wife, producing an annual income of about 85/., was settled upon the wife for life, remainder upon the husband for life, remainder upon the issue of the marriage. The husband brought no property into the settlement. The marriage having been dis- solved on the ground of the wife's adultery, and it appearing that the husband's means were not suffi- cient for the maintenance of himself and his child, the only issue of the marriage, of which he had the custody, the Court, under section 5. of 22 & 23 Vict, c. 61, ordered that during the life of the wife 20/. of her annual income should be paid by the trustees of the settlement for the benefit of the child. Web- ster V. Webster, 32 Law J. Rep. (n.s.) Prob. M. & A. 29 ; 3 Swab. & T. 106. A petition for an order as to the application of settled property should give full information as to the means of the applicant. Ibid. Where a marriage is dissolved on the ground of the wife's adultery, the Court will not, under sec- tion 6. of 22 & 23 Vict. c. 61, deprive the husband of any interest he takes under a settlement, even for the purpose of applying it for the benefit of the children of the marriage. Thompson v. Thompson, 32 Law J. Rep. (n.s.) Prob. M. & A. 39 ; 2 Swab. & T. 649. After a decree nisi for dissolution of marriage had been granted, the petitioner filed a petition praying for an order as to the application of settled property. Before the decree was made absolute, the respondent was served abroad with a copy of the petition and with a notice that after the decree absolute the Court would be moved to make the order prayed : — Held, that the Court had power to entertain the application in the absence of the respondent. Semble — That if no petition had been filed but notice only of an intended application had been given to the respondent, the Court could not have made an order as to the settled property. Lawrence v. Law- rence, 32 Law J. Rep. (».s.) Prob. M. & A. 124 ; 3 Swab. & T. 207. Under the marriage settlement of her father, a 212 DIVORCE AND MATRIMONIAL; (S) Childreh. wife, upon the ground of whose adultery a divorce had been granted, was entitled to a sum of money after the death of her father in the event of his not otherwise disposing of it : — Held, that this was not property to which the wife was entitled in reversion, and that the Court therefore had no power under section 45. of 20 & 21 Vict. c. 85. to order a settle- ment of it. Stcme v. Stone, 33 Law J. Rep. (n.s.) Prob. M. & A. 96 ; 3 Swab. & T. 372. A husband, with moneys received by him in right of his wife, purchased railway stock, which was trans- ferred into their joint names. By a deed of separa- tion, this stock was vested in trustees upon trust for the husband for life, then for the wife for life, and afterwards for the children of the marriage, subject to the proviso that in the event of the marriage being dissolved the trusts should become null and Void. The marriage was dissolved on the ground of the wife's adultery, and the trustees thereupon sold the railway stock and paid the proceeds to the wife: — Held, that assuming the deed of separation to be a post-nuptial settlement within the meaning of the 22 & 23 Vict. c. 61. s. 5, the trusts of the deed having determined, the Court had no power to deal with the property comprised in it. Ibid. Semble — That such a deed is a post-nuptial settle- ment within the meaning of 22 & 23 Vict. u. 61. s. 5. Ibid. Where the petitioner had entered into a covenant binding his estate with the payment of an annuity to the respondent, in the event of her surviving him, the Court directed the annuity, when recovered, to be paid for the benefit of the children of the marriage. Callwell V. CallweU, 3 Swab. & T. 259. After a final decree of dissolution of marriage, the Court may make an order as to the application of settled property for the benefit of children of the marriage, although the petitioner be dead. Lmg v. Ling, 34 Law J. Rep. (n.s.) Prob. M. & A. 52 ; 4 Swab. & T. 99. (S) Children. [See ante, (R) (c) (2).] (a) Cwtody of. Where the children, with regard to whom an order for custody was applied for, were a girl aged twenty and two boys aged respectively eighteen and sixteen, — the Court held, that the 35th section of the Divorce Act, 1857, gave no jurisdiction ; and that where the parent would have no power of control, the Court has none. Ryder v. Ryder, 30 Law J. Rep. (n.s.) Prob. M. & A. 44 ; 2 Swab. & T. 225. The Court may confer a benefit upon parties not before it, by ordering maintenance, though it cannot interfere with their liberty by an order made in a suit to which they are not parties. Ibid. A decree of dissolution of marriage at the suit of the wife having been pronounced, the Court directed that, until further order, she should have the custody of a child, the only issue of the marriage, that she should not remove it out of the jurisdiction without the permission of the Court, and that the father should have reasonable access to it. Boynton v. Boymton, 30 Law J. Rep. (n.s.) Prob. M. & A. 156 ; 2 Swab. & T. 275. In the interval between a decree nid for dissolu- tion of marriage being pronounced and its being made absolute, the only order the Court can make as to the custody of children is an interim order, under section 35. of 20 & 21 Vict. c. 85. Chibleyy. Cubley, 30 Law J. Rep. (n.s.) Prob. M. & A. 161. The father is entitled at common law to the custody of the child at Hs mother's breast. The Court in making an order as to the custody pendente lite will not, unless some good cause is shewn, take away this right. Cartledge v. Gwrtledge, 31 Law J. Rep. (n.s.) Prob. M. & A. 85 ; 2 Swab. & T. 567. The Court will not, at the hearing of a cause, entertain an application for the custody of children if it is founded upon evidence not admissible in the cause, nor an application for permanent alimony. They should be made on a motion day. But at the hearing the Court may direct that the petitioner have the custody of children until further order, if the facts proved in the cause would warrant such an order, e.g., if the adultery of the respondent be proved. Wallace v. Wallace, 32 Law J. Rep. (n.s.) Prob. M. & A. 34. The Court refused to order that a wife who had obtained a decree of judicial separation should have the custody of an idiot child which was properly taken care of by the husband, where the custody was asked for, in order that it might be placed in an asylum for its own benefit, and not in order that the wife might have the solace of its society. SemMe — That an application for the custody of a child upon such a ground should be made to the Court of Chancery. CooTce v. CooTce, 32 Law J. Rep. (n.s.) Prob. M. & A. 180 ; 3 Swab. & T. 248. The Court will not, at the hearing of a suit, order that the petitioner have the custody of the children of the marriage unless the petition prays for such custody. Boddy v. Boddy, 33 Law J. Rep. (n.s.) Prob. M. & A. 163. When a marriage is dissolved on the ground of the wife's adultery, the Court wiU not order that she have the custody of or access to the children of the marriage. Bent v. Bent, 30 Law J. Rep. (n.s.) Prob. M. & A. 175; 2 Swab. & T. 392. Where a petition for dissolution of marriage is dismissed, the Court has no power to make an order as to the custody of, or access to, the children of the marriage. Seddon v. Seddon, 31 Law J. Rep. (n.s.) Prob. M. & A. 101; 2 Swab. & T. 640. (b) Access to. [See ante, (a) Bent v. Bent and Seddon v. Seddon.] For the principles on which access to a child is granted or refused to a mother petitioning under 2 & 3 Vict. c. 64. see In re Winscom, 2 Hem. & M. 540. After a decree nisi for dissolution of marriage on the ground of the wife's adultery, the Court will not order that she have access to the children of the marriage. Clout v. Clout, 30 Law J. Rep. (n.s.) Prob. M. & A. 176 ; 2 Swab. & T. 391. After a decree of judicial separation has been pronounced, the Court will not order that the wife have access to children of the marriage, unless appli- cation be made by petition. Anthony v. Anthony, 30 Law .T. Rep. (n.s.) Prob. M. & A. 208. The Court has jurisdiction, pendente lite, to order that one of the parties to the suit shall have access merely to the children of the marriage. Tliompion v. DIVORCE AND MATRIMONIAL; (T) Pbaotioe. 213 on, 31 Law J. Rep. (n.s.) Prob. M. & A. 213 ; 2 Swab. & T. 402.. On an application for an order for access to children pending suit on behalf of the mother, the Court will require to be satisfied that the motive is natural love and affection for the children, and that the applicant has no indirect object in view; as to which, lapse of time in making the applica- tion may be material. The Court will also consider the convenience of all parties in the circumstances, and how the children would probably be affected if the order were made. Codrington v. Codrington, 3 Swab. & T. 496. (T) Practice. (o) Trial of Causes. (1) Directions as to Mode of Trial. When the pleadings are complete the Court will, upon the application of a petitioner, direct the mode of trial, although he may not have complied with an order to furnish particulars of a charge in the petition. Gough V. Gough, 32 Law J. Rep. (h.s.) Prob. M. & A. 128. In 1860 a wife filed a petition for dissolution of marriage on the ground of adultery and cruelty. When the cause came on for trial it was withdrawn from the jury by agreement of the parties, the petitioner undertaking not to institute other pro- ceedings 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 of later date, the same as those charged in the first petition. The respondent pleaded the agreement in bar. Upon application by the petitioner for directions as to the mode of trial, the Court refused to make any order, upon the ground that the institution of the second suit was a gross breach of good faith and a violation of the agreement, by which the petitioner had sur- rendered irrevocably any legal right to relief in respect of misconduct charged in the first petition. Rowley V. Rowley, 33 Law J. Rep. (n.s.) Prob. M. & A. 64 ; 3 Swab. & T. 338. In a suit by a husband for dissolution of marriage, the respondent and co-respondent traversed the adul- tery, and the respondent further counter-charged adultery and cruelty. The petitioner having allowed the time for filing a replication to the respondent's answer to expire without replying or obtaining further time, the respondent moved the Court to order the trial of this cause : — Held, that the plead- ings being incomplete, the Court could not order the mode of trial. Broadwood v. Broadwood, 34 Law J. Rep. (n.s.) Prob. M. & A. 10. Where issue has been joined in a matrimonial suit, the Court will not refuse to give directions as to the mode of trial, as such refusal is tantamount to a dismissal of the petition, and cannot be ap- pealed from to the House of Lords. Rowley v. Row- ley, 34 Law J. Rep. (n.s.) Prob. M. & A. 97; 4 Swab. & T. 137. (2) By the Court. The determination of issues of fact raised by pleas to the discretion of the Court under the proviso to section 31. of 20 & 21 Vict. c. 85. rests solely with the Court. Nam-acott v. Nairracott, 33 Law J. Rep. (n.s.) Prob. M. & A. 132 j 3 Swab. & T. 408. (3) By Ae Full Court. The Judge Ordinary will not, except for some sufiBcient reason, order a suit, which he is empowered by 23 & 24 Vict. c. 144. to hear alone, to be heard before the full Court. The desire of one of the parties that it may be so heard, and the probability that difficult questions of law may arise at the hearing, do not constitute a sufficient reason. Beiian v. Bevan, 30 Law J. Rep. (n.s.) Prob. M. & A. 23. (4) By Affidavits. When leave is granted to prove a petition by affidavits, the order granting such leave must be drawn up before the hearing, and should be filed with the other papers. Webb v. Webb, 32 Law J. Rep. (n.s.) Prob. M. & A. 63. When the affidavits filed by a person shewing cause against a decree being made absolute and the affidavits in answer raise issues not proper to be decided on affidavits, the Court will order the issues to be tried by a jury. They cannot be tried by the Corat itself on oral evidence. Masters v. Masters, 34 Law J. Rep. (n.s.) Prob. M. & A. 7. (5) By Jury. The Queen's Proctor is on the same footing with all the other suitors of the Court. Gray v. Gray, 31 Law J. Rep. (n.s.) Prob. M. & A. 83. Qucere — Whether a suitor for dissolution of mar- riage is entitled under the statute to a jury. Ibid. When a question of impotence is raised in a suit, the appointment of two medical inspectors rests with the Court ; but it will allow the parties to select them, and should they not agree, each will be allowed to nominate one. C v. C , 32 Law J. Rep. (n.s.) Prob. M. & A.. 12. The respondent, in answer to a suit for restitution of conjugal rights, pleaded the impotency of the petitioner. The Court, upon the application of the petitioner, ordered the cause to be tried by a jury, notwithstanding the respondent's objection to that mode of trial. Ibid. Although in a suit for judicial separation the Court, under section 36. of 20 & 21 Vict. c. 85, may in its discretion refuse to direct that questions of fact be tried by a jury, it will generally at the request of either of the parties allow a jury. The circumstance that cruelty is in issue is no ground for refusing a jury. Taylor v. Taylor, 32 Law J. Rep. (n.s.) Prob. M. & A. 126. Where a cause is tried by a jury, the jury may be asked for a verdict upon issues of fact raised by pleas to the discretion of the Court, as an assistance to the Court in forming its opinion, but their verdict may be dispensed with. Na/rracott v. Narracott, 33 Law J. Rep. (N.s.) Prob. M. & A. 132 ; 3 Swab. & T. 408. There is no identity in legal effect between the written statement of questions of fact to be tried, pre- pared under section 38. of 20 & 21 Vict. c. 85, and the Nisi Prius record in an action. Ibid. (6) By Issues at the Assizes. ,, Where, upon a petition for dissolution of marriage, it appeared that by far the greater part of the wit- nesses to the fac^ in the suit resided at a great 214 DIVORCE AND MATRIMONIAL; (T) Peactice. distance from London, the Court directed issues upon the charges and counter-charges of adultery and cruelty to be tried at the assizes. Riehardes v. Richardes, 30 Law J. Rep. (n.s.) Prob. M. & A. 48. Where an issue is ordered to be tried at the assizes, under section 40. of 20 & 21 Vict. c. 85, it should be framed as an issue sent by the Court of Chancery. Hogg V. Hogg, 32 Law J. Eep. (n.s.) Prob. M. & A. 209. (5) Postponing the Trial. The Court will, under 23 & 24 Vict. c. 144. b. 7, grant leave for the Queen's Proctor to intervene in a suit for dissolution of marriage upon the statement of counsel, without affidavit, that the Attorney Gene- ral has directed the Queen's Proctor to apply for such leave, but will not order the hearing of the petition to be postponed in order that he may plead to the petition, unless an affidavit shewing grounds for such postponement be filed, and notice be given to the parties. Anonymous case, 30 Law J. Rep. (n.s.) Prob. M. & A. 88 ; 2 Swab. & T. 249. The Court will not postpone the trial of a cause on the application of one of the parties if no notice of the motion has been given to the other party. Hepworth v. Hepworth, 30 Law J. Rep. (n.s.) Prob. M. & A. 198 ; 2 Swab. & T. 514. (c) Setting down Cause for Trial, Where five months had elapsed since the Court had directed that a cause should be tried without jury, and the petitioner had not set down the cause for trial, the Court, on the application of the respon- dent, gave him leave to set it down for trial if the petitioner should not do so within a fortnight. Semble — That there is no provision in the Rules as to setting down a cause for trial, except where it is ordered to be tried by jury. Hare v. Hare, 32 Law J. Rep. (n.s.) Prob. M. & A. 7; 2 Swab. & T. 218. (d) Re-entering after Amendment. Where a petition has been set down for hearing and is afterwards amended and re-served, it must be re-entered in the usual course, and cannot be re- stored to the place the original suit occupied in the list of causes. Milner v. MUner, 30 Law J. Rep. (n.s.) Prob. M. & A. 103. (e) Proceedings at the Trial. (1) Generally. The respondent's counsel may not controvert alle- gations of the petition not denied by the answer ; but on the assumption that such allegations are true, he may cross-examine the witnesses and address the Court, for the purpose of shewing that a decree ought not to be pronounced. Tollemache v. Tolle- mache, 30 Law J. Rep. (n.s.) Prob. M. & A. 113. The respondent's counsel cannot reserve his com- ments on the petitioner's evidence until he sums up his own evidence. Olennie v. Glennie, 32 Law J. Rep. (n.s.) Prob. M. & A. 17. "The co-respondent's counsel, if he calls no wit- nesses, should address the Court after the opening speech of the respondent's counsel. Ibid. The co-respondent's counsel, by examining the witnesses of the respondent, adopts them as his own. Ibid. (2) Right to legin. Where, in a suit for dissolution by husband against wife, the wife pleaded that the marriage was null on account of the husband's impotency, the Court held that, there being substantially a traverse of the mar- riage, the petitioner had the right to begin. Serrellv. Serrell, 31 Law J. Rep. (n.s.) Prob. M. & A. 65; 2 Swab. & T. 422. Where the Judge Ordinary is sitting without a jury, as the question of the fact of the marriage must be proved before him, the right to begin is not taken from the petitioner from the consideration that the only real issue in the case lies upon the respondent. Bwrrmighs v. Burroughs, 31 Law J. Rep. (n.s.) Prob. M. .& A. 56 ; 2 Swab. & T. 544. Upon an appeal from an order discharging a rule nisi for a new trial, the appellant must begin. Teatmam v. Yeatman, 33 Law J. Rep. (N.s.) Prob. M. & A. 54 ; 3 Swab. & T. 361. Upon such an appeal where notice has been given to the other side, the question for the Court is, not whether a rule nisi should be granted, but whether such rule should be made absolute or discharged. Ibid. (3) Non-appearance of Parties. When a jury has been sworn to try issues in a matrimonial suit, and neither of the parties appear, the Court will discharge the jury. Haydon v. Hay- dm, 30 Law J. Rep. (n.s.) Prob. M. & A. 112. (/) New Trial. (1) Notice of Application for. It is no ground for suspending the decree nisi after a verdict for the petitioner in a suit for dissolu- tion of marriage that the respondent has given notice of an application for a new trial. Stone v. Stone, 32 Law J. Rep. (n.s.) Prob. M. & A. 117; 3 Swab. & T. 212. (2) General Principles as to gramtvng. In granting new trials in matrimonial suits the Court will be guided by the same principles as are the Courts of Common Law. Miller v. Miller, 31 Law J. Rep. (n.s.) Prob. M. & A. 73 ; 2 Swab. & T. 427. It is not a sufficient ground for setting aside the verdict of a jury as against the weight of evidence, that the Judge before whom the cause was tried would have found a different verdict. Unless the Judge is dissatisfied with the verdict, and there is reason for believing that, but for impatience, preju- dice or misapprehension on the part of the jury, the verdict would not have been given, a new trial will not be granted. Ibid. A new trial will not be granted on the ground that further evidence could be laid before the jury on a second trial, if such evidence could, by the exercise of reasonable diligence, have been obtained before the first trial. Ibid. If a verdict has been found against two co-respon- dents in a suit for dissolution of marriage, and the Court afterwards, on the application of one of them, grants a new trial, on the ground that the verdict against him was contrary to the weight of evidence, there must be a new trial as to both, and pending that application the petitioner is not entitled to a DIVORCE AND MATRIMONIAL; (T) Pbaotioe. 215 decree absolute as to the other. Walher v. Walker, 31 Law J. Rep. (n.s.) Prob. M. & A. 26. SembU — That if the petitioner consented to the verdict being entered for the co-respondent who applied for a new trial he would be entitled to a decree. Ibid. Qucsre — Whether, in matrimonial suits, if the verdict on one only of two issues is unsatisfactory, a new trial ought to be granted as to both. Ca/rtlidge V. Cartlidge, 32 Law J. Rep. (n.s.) Prob. M. & A. 126 ; S Swab. & T. 406. Senible — That where in a suit by a wife for disso- lution of marriage, on the ground of adultery and cruelty, the petitioner obtains a verdict upon both issues, and a new trial as to one of them is after- wards applied for, the petitioner may abandon that issue and ask for a judicial separation upon the ground of the other charge. Ibid. Where it is necessary for the petitioner to establish two points in order to obtain the prayer of the peti- tion, the Court would not, even if dissatisfied with the verdict of the jury on one point, send that down for a new trial, because, if a different verdict were found on that point, it would not be sufficient to ground the relief prayed. Fitzgerald v. Fitzgerald, 3 Swab. & T. 400. The Judge Ordinary had held that notice given to the opposite solicitor at a quarter before two p.m. on Saturday, in London, of an examination of a witness to be held at Bath at two p.m. on the following Monday, was not a reasonable and sufficient notice to enable such solicitor to attend and cross-examine, and had therefore refused to admit evidence so taken. In the circumstances, the Court refused to interfere with the ruling of the Judge Ordinary, Ibid. Per Charmell, B. — When a question to determine the admissibility of evidence has been decided by a Judge presiding at a trial by jury, the decision of the Judge on such question may be reviewed by a Court of Appeal. Ibid. The Judge Ordinary — Qucere, whether such deci- sion of a Judge presiding at a trial is properly subject to the revision of a Court of Appeal . Ibid. (3) Verdict against Evidence. Where there is a conflict of evidence upon an issue of adultery (the Queen's Proctor intervening), the Court will not grant a new trial on the ground that the verdict is contrary to the evidence, unless it is dissatisfied with the verdict. Oeihin v. Qeihin, 31 Law J. Rep. (n.s.) Prob. M. & A. 57; 2 Swab. & T. 560. The Court will not grant a new trial, on the ground that witnesses called upon the first trial have wilfully suppressed material facts. Ibid. A rule for a new trial upon the ground that a verdict is against the weight of evidence will not be granted, unless the Court is satisfied with reasonable certainty that there has been error or miscarriage. Scott V. Scott, 33 Law J. Rep. (n.s.) Prob. M. Si A. 1; 3 Swab. & T. 319. A rule for a new trial will not be granted upon affidavits which do not shew surprise, but merely state that during the trial and after the close of the applicant's case material evidence had come to his knowledge. Ibid. Where a verdict, finding that the respondent in a suit for dissolution of marriage has been guilty of adultery, is against the weight of evidence, a new trial may be granted, although the Judge who tried the cause is not dissatisfied with the verdict. Stone V. Stone, 34 Law J. Rep. (n.s.) Prob. M. & A. 33. In a suit by a husband, for dissolution of marriage, claiming damages, the respondent denied the adul- tery, and the co-respondent, who had not been personally served, did not appear. The jury found that the respondent had committed adultery with the co-respondent, and assessed the damages against the latter at 2,000?. The respondent having applied for a new trial, on the ground that the verdict was against the weight of evidence, the Judge Ordinary (Sir C. CressweU), who had tried the cause, refused a rule. On appeal, his decision was reversed by a majority of the full Court, who set aside the verdict as against the respondent and the co-respondent, and made a rule absolute for a new trial as to both. Ibid. Subsequently, the co-respondent, who was resident in Canada, and who had not heard of the institution of the suit until just before the trial, when it was too late for him to come to England, applied for leave to appear and file an answer. The Judge Ordinary [Sia- J. P. Wilde} granted the application, upon condition that before the trial he should give security for costs ; and on non-compliance with that condition, ordered the appearance and answer to be taken off the file. Ibid. (4) Inconsistent Verdict. An inconsistency in the verdict of a jury is no ground for a new trial, unless it is such that their opinion upon the substantial question for their deci- sion cannot be ascertained. Ellyatt v. Ell/yatt, 33 Law J. Rep. (n.s.) Prob. M. & A. 137; 3 Swab. & T. 503. In a suit by a husband for dissolution of marriage, the jury found that the respondent had committed adultery with the co-respondent, and that the peti- tioner had connived at his wife's adultery, and they assessed substantial damages against the co-respon- dent : — Held, 1. That as there was no reason to doubt that the jury fully understood the meaning of the term, and had intended to find that the peti- tioner had been guilty of connivance, the inconsist- ency in their verdict was no ground for a new trial ; 2. 'That as the Court was bound to dismiss the petition if it should find that the petitioner had been guilty of connivance, the co-respondent might apply for such dismissal ; 3. That the co-respondent was not entitled to costs; 4, That the respondent was entitled to all her costs. Ibid. (5) Mistake. In a suit by a wife for judicial separation on the. ground of cruelty, the respondent denied the cruelty, but before the trial signed a written consent to the decree being pronounced, upon the erroneous state- ment of his solicitor that, upon the production of such consent at the trial, no evidence of the charges in the petition would be given. At the trial counsel appeared for the respondent, but called no witnesses. In support of the charges in the petition witnesses were examined, and the written consent was put in evidence, and a verdict was found for the petitioner: — Held, by the full Court, affirming the decision of 216 DIVORCE AND MATRIMONIAL; (T) Practice. the Judge Ordinary, that it was no ground for granting a lule for a new trial that the respondent had, in consequence of his being misled by his soli- citor, abstained from adducing evidence to contradict the charges in the petition, and that thereby his character had been injured. Bill v. Hill, 31 Law J. Rep. (if.s.) Prob. M. & A. 193; 2 Swab. & T. 407. A mistake made by a witness in his evidence, if it be one likely to have disturbed the judgments, and to have misled the minds of the jury, is ground for granting a new trial. Jago v. Jago, 32 Law J. Rep. (if.s.) Prob. M. & A. 10; 3 Swab. & T. 103. (6) Misdirection. It is no ground for a new trial that the Judge in his summing-up did not give as much weight to some parts of the evidence. as they may have deserved. Codnngton v. Codrington, 34 Law J. Rep. (if.s.) Prob. M. & A. 60; 4 Swab. & T. 63. (7) On Affidavits. Where a rule nisi for a new trial has been granted on affidavits, and affidavits have been filed in answer, the party obtaining the rule will not be allowed to file affidavits in reply until the rule is argued. Nicholson v. Nicholson, 32 Law J. Reo. (n.s.) Prob. M. & A. 135. (8) Appeal against Order for. The Court has the power to extend the time (fourteen days) hmited by 23 & 24 Vict. v. 144. 8. 2, for appealing against a decision of the Judge Ordinary granting or refusing a rule for a new trial. Boultimg v. Moulting, 33 Law J. Rep. (n.s.) Prob. M. & A. 81. {g) Motions, Orders, and Decrees. (1) Form of Decree. In a suit for dissolution of marriage by a husband the respondent and co-respondent denied the adul- tery, and the co-respondent further pleaded con- nivance. The cause was heard by the Court, who pronounced a decree, the minute of which in the Court Book was, " The Judge Ordinary having deliberated, by his final decree dismissed the peti- tion, &c.," the ground of dismissal not being stated. Upon the application of the petitioner, the Court afterwards varied the decree by stating therein that the Court was of opinion that the adultery was proved, but that the petitioner had connived at it, and thereupon dismissed the petition. Cfipps v, Qipps, 32 Law J. Rep. (n.s.) Prob. M. & A. 179. (2) Motion for Decree Absolute. Upon a motion to make a decree of dissolution of marriage absolute, a copy of the decree nisi should be filed. Fowler v. Fmoler, 31 Law J. Rep. (n.s.) Prob. M. & A. 31. When a petition of appeal for the reversal of a decree nisi has been presented to the House of Lords, and the Court is afterwards moved to make the decree absolute, the appeal having been with- drawn, that fact should appear by affidavit. Where such an affidavit had not been filed, but the defen- dant's counsel admitted that the fact was so, the Court made the decree absolute. Daily v. Daily, 31 Law J. Rep. (n.s.) Prob. M. & A. 163. An application to make absolute a decree nisi for dissolution of marriage should be supported by affi- davits of search for appearance by any person and of non-appearance, and if an appearance has been entered, that no affidavits in opposition to the decree have been filed. Doddy v. Boddy, 32 Law J. Rep. (n.s.) Prob. M. & A. 95. The affidavit, upon which is founded a motion to make absolute a decree nisi of dissolution of mar- riage, should shew that search was made in the registry at a recent date. The Court refused to make a decree absolute on the 4th of November upon an affidavit of search on the 1st of October. Stone V. Stone, 32 Law J. Rep. (n.s.) Prob. M. & A. 7; 3 Swab. & T. 113. (3) Opposing. A respondent against whom a decree nisi for dis- solution of marriage has been pronounced, cannot shew cause against the decree being made absolute, under section 7. of 23 & 24 Vict. c. 144. Stoate v. Stoate, 30 Law J. Rep. (n.s.) Prob. M. & A. 173; 2 Swab. & T. 384. Where affidavits have been filed in opposition to a decree nisi, the petitioner cannot in answer file an affidavit made by himself. Stoate v. Stoate, 32 Law J. Rep. (n.s.) Prob. M. & A. 120. (4) Service of. Where orders had been made that the husband should pay the wife's costs and aMmony pendente lite, and the husband had assigned the property, and could not be found, the Court allowed substituted service of the orders by leaving them at the last known residence of the husband, at his attorney's office, and at the address given in the appearance book. Nuttall v. Nuttall, 31 Law J. Rep. (n.s.) Prob. M. & A. 164. (5) Enforcing. A decree was made in a suit in the Divorce Court whereby the husband was ordered to pay to the wife an annuity of lOOl., payable by monthly instal- ments. This decree was registered in the books of judgments kept in this court, and the Court refused to order it to be struck out, leaving the question of how far it could be made available against the hus- band open for discussion. Ex parte Holden, 32 Law J. Rep. (N.S.) C.P. Ill; 13 Com. B. Rep. N.S. 641. (A) Petition. (1) Amendment and Re-service. _ A petition, by a husband, for a dissolution of mar- riage, alleged that the respondent, at a specified time and place, committed adultery with A. The respon- dent did not appear. At the hearing, the Court re- fused to allow the petition to be amended by adding to that charge the words "or with some person whose name is unknown to your petitioner," without re-service. Wallace v. Wallace, 32 Law J. Rep. (n.s.) Prob. M. & A. 47. A petition, by a husband, for dissolution of mar- riage did not charge adultery, but alleged that the respondent and co-respondent were "living and cohabiting together." Neither of the respondents appeared. At the hearing the Court refused to allow the petition to be amended, by inserting a charge of DIVORCE AND MATRIMONIAL; (T) Pbaotiob. 217 adultery, without je-aervice. Fvrmmi v. Forman, \^ 32 Law J. Eep. (k.s.) Prob. M. & A. 80. If a respondent, misnamed in a petition, has been served, but has not appeared, the petition, when amended, must be re-served. Kiach v. Kisch, 33 Law J. Rep. (n.s.) Prob. M. & A. 115. (2) WUhdrawing. Where the Queen's Proctor has, under 23 & 24 Vict. c. 144. 8. 7, intervened after a decree nisi for dissolution of marriage has been pronounced, the petitioner' will not be allowed to withdraw his peti- tion; but the Court will hear the evidence in support of the pleas filed by the Queen's Proctor. Gray v. Gray, 30 Law J. Rep. (if.s.) Prob. M. & A. 119; 2 Swab. & T. 263. The Court will allow the wife to withdraw her petition for judicial separation, and file one for dis- solution of marriage, if her proctor has not received from the husband her costs in the former suit. Agkley V. Ashley, 30 Law J. Rep. (n.s.) Prob. M. & A. 175; 2 Swab. & T. 388. C, the wife, obtained a decree nisi for dissolution of her marriage, the husband not appearing, after which the Queen's Proctor intervened and pleaded collusion between petitioner and respondent, and alleged that the petitioner had herself been living in adultery, and prayed to dismiss the petition and condemn the parties, or one of them, in costs ; whereupon the .Judge Ordinary was moved on behalf of the petitioner to direct the petition to be taken oiF the iile of the Court, which he refused to do, and it was held, on appeal to the full Court, that the Judge Ordinary was right in such refusal. Gray v. Gray, 2 Swab. & T. 266. Qacere — If the petitioner had prayed to dismiss her petition on payment by her of the costs incurred up to that time by the Queen's Proctor's interven- tion. Ibid. Leave granted to withdraw a petition for judicial separation and file a petition for dissolution of mar- riage' upon the same grounds as those alleged in the first petition. Maasey v. Massey, 32 Law. J. Rep. (n.8.) Prob. M. & A. 141. (3) Dismissing. When issues raised in a suit for dissolution of marriage come on for trial by a jury, the petitioner will not be allowed to withdraw the record ; but on his application, if there ia^no opposition by the other parties, the petition will be dismissed. When by agreement between the parties a petition for disso- lution of marriage is disnjissed, the Court will not allow such, agreement to be made an order of Court for the purpose of enforcing its terms. Ryder v. Ryder, 30 Law J. Rep. (sr.S.) Pi'ob. M.& A. 164. A wife who has been guilty of adultery since the commencement of the suit is not entitled to a decree of judicial separation on the ground of cruelty; but upon proof of suph adultery the Court will dismiss the petition, although the respp.ndgnt may not have recriminated. Drummond-v. Urmnmond, 30 Law J. Rep. (N.s.)Prob. M.&A. 177; 2 Swab. & T. 269. SemUe — That if the respondent is aware that the petitioner has been guilty of adultery, his omission to Vecriminate is evidence of collusion. Ibid. The Court will not dismiss a petition by the hus- band for dissolution of marriage, except upon pay- DiQBST, 1860—65. ment of the wife's taxed costs and the costs of the motion. Pearce v. Pearce, 30 Law J. Rep. (u.s.) Prob. M. & A. 182. When a verdict has been found for the respon- dent the Court will not dismiss the petition until the month allowed by the Rules for moving for a new trial has elapsed. Hitclicock v. HiUhoock, 30 Law J. Eep. (n.s.) Prob. M. & A. 198; 2 Swab. & T. 513. A motion to dismiss a petition after a verdict for the respondent should be supported by an affidavit that no application for a new trial has been lodged in the registrv. Sill v. HiU, 30 Law J. Rep. (n.s.) Prob. M. & A. 198; 2 Swab. &T. 515. After a decree nisi for dissolution of marriage at the suit of the wife had been pronounced, the wife renewed marital intercourse with her husband, and informed her attorney that she did not wish any fur- ther proceedings to be taken in the suit. Upon an application by the husband to dismiss the petition, tile Court declined to accede to it, but said that, if both parties consented, it would order all proceed- ings in the suit to be stayed. Lewis v. Lewis, 30 Law J. Rep. (N.S,) Prob. M. & A. 199 ; 2 Swab. & T. 394. Qumre — Whether the Court at the instance of the parties can dismiss a petition for dissolution of mar- riage after a decree nisi has been pronounced. Ibid. Where issues in a suit for dissolution of marriage have been tried by a jury the Court will not dismiss the petition on the application of the petitioner until the time allowed by the rules for moving for a new trial has elapsed. A liter if all the parties concur in the application. Seddon v. Seddon, 31 Law J. Rep. (N.s.) Prob. M. & A. 31. If at the hearing no one appears on behalf of the petitioner, the respondent has a right to have the petition dismissed. Desma/reat v. Desmarest, 31 Law J. Rep. (n.s.) Prob. M. & A. 34. Dismissing petition on respondent's application after notice of abandonment by .petitioner. Synwns V. Symons, 31 Law J. Rep. (n.s.) Prob. M. & A. 84; 2 Swab. & T. 435. ; When directions as to the trial of a cause have been given, and the petitioner fails to. set it down for trial in due course, the Court will not, on the ex parte application of the respondent, dismiss the petition ; but will grant a rule' nisi, calling on the petitioner to shew cause why the petition should not be dismissed. Stuart v. Stuart, 32 Law J. Rep, (n.B.) Prob. M. & A. 110; 3 Swab. & T. 219. , In a suit, by a husband, for dissolution of marriage, the co-respondent appeared, but filed no answer. Upon a motion, by the petitioner, for the dismissal of the petition, as against the co-respondent, on the ground that there was no evidence against him, it was held that the application could only be granted upon payment of the co-respondent's costs. Smit^ y. Smith, 34 Law J. Rep. (n.s.) Prob. M. & A. 11. . After a decree for dissolution of marriage, on the ground of the wife's adultery, the husband, who was respondent in a cross-suit for restitution of conjugal rights, which had not been heard, moved that the petition should be dismissed. The wife refused to consent to its dismissal, except upon payment of her costs up to the date of the decree absolute : — Held, that as it did not appear in the suit for restitution that the wife had been guilty of adultery, the Court could not, without her consent, dismiss the petition; 2P 218 DIVORCE AND MATRIMONIAL; (T) Pbaotice. but that as her adultery disentitled her to costs, the respondent, if she did not consent, might put on the record a plea that she had been found guilty of adultery. EoU v. Rolt, 34 Law J. Eep. (n.s.) Prob. M. & A. 51 ; 3 Swab. & T. 604. (4) Dismissing Second Petition, A petition was filed by a wife for judicial separa- tion on the ground of cruelty ; a citation issued, but the respondent was not served. Afterwards the wife's solicitor, who was unaware of the former pro- ceedings, in pursuance of fresh instructions, filed another petition for judicial separation,on the ground of cruelty and adultery, and issued a citation which, with a copy of the petition, was served on the respondent, who entered an appearance. The first citation could not be found. The Court rejected a motion on behalf of the wife, that the second petition should be taken off the file, or should be dismissed, and that a fresh citation should issue on the first petition, in order that the petitioner might proceed upon the first petition. Turner v. Turner, 31 Law J. Eep. (U.S.) Prob. M. & A. 134 ; 2 Swab. & T. 426. (i) Cfitation, (1) Form and Requisites of. If the name of a respondent is mis-spelt in the citation, and there is no appearance, the Court will not order that service of such citation shall be deemed suflScient, but a fresh one must be extracted. Cotton V. Cotton, 32 Law J. Rep. (n.s.) Prob. M. & A. 133. Where a petition for dissolution of marriage has been served in which a mistake is made in the Christian name of the person with whom the respon- dent is alleged to have committed adultery, the Court will allow it to be amended, but it must be re-served. Zove v. Love, 32 Law J. Rep. (n.s.) Prob. M. & A. 134. When the address of the respondent is unknown, he may be described in the citation as late of the last known place of his residence. Forster v. Forster, 32 Law J. Eep. (n.s.) Prob. M. & A. 134 ; 3 Swab. & T. 168. (2) Service of. (i) Personal. An affidavit of service of the citation, &c. should allege that the party served is a respondent in the suit. Temple v. Temple, 31 Law J. Rep. (n.s.) Prob. M. & A. 34. In a suit for dissolution of marriage, if the re- spondent does not appear, proof must be given at the hearing of the identity of the respondent and the person served with the citation. Ooldgmith v. Goldsmith, 31 Law J. Rep. (n.s.) Prob. M. & A. 163. The Court will not allow a suit to proceed upon the mere undertaking of an attorney to accept ser- vice of the citation for the respondent. Personal service on the respondent is necessary, unless the Court has dispensed with such service. Milne v. MUme, 34 Law J. Rep. (n.s.) Prob. M. & A. 148; 4 Swab. & T. 183. An afiidavit of service of a citation which refers to the certificate of service indorsed on the citation, and states that such indorsement is true, is insufficient; it should state in terms that the citation was served. Bich V. Mch, 32 Law J. Rep. (n.s.) Prob. M. & A. 77. (ii) By Advertisement. When an order has been made, dispensing with personal service upon a respondent, a copy of it should be brought in with the other papers, when the Court is nioved to direct the mode of trial. The insertion in a newspaper of advertisements on the 7th and 14th of a month, is a suflicient compliance with an order to advertise twice with the interval of a week. Elsley v. Blsley, 32 Law J. Rep. (n.s.) Prob. M. & A. 145. Where a respondent is cited by advertisement and leave to amend the petition is afterwards granted, the amended petition need not be advertised. Smith v. Smith, 32 Law J. Rep. (n.s.) Prob. M. & A. 145 ; 3 Swab. & T. 216. (k) Appea/rance. (1) rime for Entering and Leave to appear. An appearance may be entered at any time within twenty-one days from the service of the citation in a matrimonial suit. Child v. Child, 33 Law J. Rep. (N.S.) Prob. M. & A. 156; 3 Swab. & T. 537. In a suit, by the husband, for dissolution of mar- riage the wife did not appear. The co-respondent filed an answer, and the issue raised was set down for trial. The Court subsequently allowed the wife to enter an appearance upon an affidavit by her deny- ing the adultery, and stating that she had been pre- vented by poverty from appearing earlier, but directed that the costs should not be taxed against the hus- band. Beni v. Bent, 30 Law J. Eep. (n.s.) Prob. M. & A. 160. An issue raised by the respondent in a suit by the husband for dissolution of marriage, in which damages were claimed against the co-respondent, having been set down for trial by a jury, the Court refused to allow the co-respondent, on the day previous to that fixed for the trial, to enter an appearance, on the ground that the application was then too late. Pouns- ford v. Pounsford, 30 Law J. Eep. (n.s.) Prob. M. & A. 188. (2) Sewrch for. The Court refiised to make absolute a decree nisi of dissolution of marriage pronounced on the 30th of January, upon an affidavit that on the 30th of the ensuing April search had been made in the registry, and that no appearance had been entered in opposi- tion to the decree, the search having been made a day too soon. Serrill v. Serrill, 31 Law J. Rep. (N.s.) Prob. M. & A. 114; 2 Swab. & T. 636. (Q Affidavits. (1) Entitling, In a suit of nullity by the wife, an affidavit entitled S.\. C, instead of S. falsely called C. v. C, was rejected. Sutherland v. Croomie, 32 Law J. Eep. (n.s.) Prob. M. & A. 125; S Swab. & T. 210. (2) FUing. In a suit for dissolution of marriage, triable upon affidavits, in which there was no appearance, a motion for further time to file affidavits was granted, notwith- standing the 35th Eule, which directs that, "In cases to be tried upon affidavit, the petitioner and respon- DIVORCE AND MATRIMONIAL; (T) Practice. 219 dent shall file their affidavits within eight days from the filing of the last proceeding." Davis v. Da/oia, 33 Law J. Rep. (tr.S.) Prob. M. & A. 139. (m) Particulars. (1) Of Acts of AdMiery. By obtaining further time to plead the respondent waives any objection to the sufficiency of the charge of adultery in the petition. He is still, however, entitled to particulars of the charge. Sepworth v. Hepworih, 30 Law J. Rep. (n.s.) Prob. M. & A. 215. A petition by a husband for dissolution of marriage alleged that on divers occasions since a specified date the respondent had accompanied the co-respondent to divers places in Bristol and its neighbourhood unknown to the petitioner, and had committed adul- tery with the co-respondent. The Court ordered that particulars of this charge should be given, or that the petitioner should file an affidavit that he was unable to do so. JEKggs v. Higgs, 32 Law J. Rep. (n.s.) Prob. M. & A. 64. In a suit by a husband for dissolution of marriage, the petitioner, in pursuance of an order made on the application of the respondent, delivered particulars in which he alleged generally adultery with A at Malta " between 1859 and 1862 and during a journey in Switzerland, Savoy, Sardinia and Italy." Upon application for further and better particulars, it ap- pearing that the information of the petitioner was solely derived from a diary and certain correspon- dence of the respondent, the Court ordered that unless particulars, setting out the dates and occasions of the alleged adultery, should be given to the re- spondent, ten days before the trial, the petitioner should be precluded at the trial from giving any save documentary evidence of the adultery charged. Codringtmi v. Codrimgton, 33 Law J. Eep. (if.s.) Prob. M. & A. 53 ; 3 Swab. & T. 368. A petition for divorce by a husband in the 3rd paragraph alleged that the respondent, since the 8th of October, 1846, had on divers occasions com- mitted adultery ; and in the 4th that the respondent had, since April, 1864, up to the date of the petition, been habitually visited at heri residence at &c., by A, and had on divers of such occasions and particu- larly on the night of the 31st of August, 1864, com- mitted adultery with A: — Held, first, that it was not sufficient to give particulars of the dates when, places where, and persons with whom, the adultery alleged in the 3rd paragraph was committed ; but that the petition must be amended by setting out such particulars. Secondly, that the respondent was not entitled to particulars of the adultery charged in the 4th paragraph. Porter v. Porter, 33 Law J. Rep. (h.s.) Prob. M. & A. 207; 3 Swab. & T. 696. When a petition contains a general charge of adultery of which particulars are ordered and deli- vered, the petitioner ought, if he intends to give evidence of acts of adultery not included in the par- ticulars, to give notice of them to the other side a reasonable time before the hearing. If he does not give such notice, the trial will be adjourned. Ban- croft v. Bancroft, 34 Law J. Rep. (n.s.) Prob. M. & A. 31 ; 3 Swab. & T. 610, Where a trial was adjourned on the ground that the evidence tendered in support of a general charge of adultery took the other side by surprise, the Court made no order as to the costs of the adjourn- ment, on the ground that both parties were to blame for the state of the pleadings and the record. Ibid. (2) Of Colhmon. Where the Queen's Proctor obtains the leave of the Court to intervene, and pleads collusion between the petitioner and respondent, such plea is a good plea ; but the petitioner is entitled to he acquainted with the character of the collusion intended to be charged, by way of specification or particulars. Jessop V. Jessop, 2 Swab. & T. 301. (n) Inspection and Production of Dommmts. Semhle — That the Court has jurisdiction to order that one of the parties to a suit be at liberty to inspect and take copies of a document in the posses- sion of the other party, for the purpose of framing a pleading or supporting a suit or defence. Shaw v. Shaw, 31 Law J. Rep. (n.s.) Prob. M. & A. 95 ; 2 Swab. & T. 642. P petitioned for dissolution of marriage and for assessment of damages. The Judge, on summons, at the instance of the co-respondent, ordered the peti- tioner to bring into the registry letters written by the respondent to him, or to file an affidavit that he had no such letters, or that they contained no such matters as suggested by the affidavits in support of the summons. Pollard v. Pollard, 3 Swab. & T. 613. (o) Staying Proceedings. Under 20 & 21 Vict. c. 85. s. 43. the Court has only power to order that the petitioner attend on the hearing of the petition. It cannot, therefore, order his attendance at the hearing of the case of the Queen's Proctor, if the intervention was after a decree nid had been pronounced. Semble, however, that though the Court has no power in such a case to order the attendance of the petitioner it may stay proceedings in the suit until he appears. Pollack v. Pollack, 32 Law J. Rep. (n.s.) Prob. M. & A. 28 : 2 Swab. & T. 648. Where cross-suits had been instituted by the husband for dissolution and by the wife fdr judicial separation, in which the same issues were raised, the Court stayed proceedings in the wife's suit, which had been commenced after that of the husband, until after the hearing of the husband's suit. Osborne v. Osborne, 33 Law J. Rep. (n.s.) Prob. M. & A. 38 ; 3 Swab. & T. 327. Where the same issues are raised in cross-suits, and an order is made for a commission to examine wit- nesses, it will be drawn up in such a form that the evidence will be admissible in both suits. Ibid. (p) Answer: Lea/oe to file. An answer filed, without the leave of the Judge Ordinary, after the time allowed by the Rules for filing it has elapsed, may be treated by the petitioner as a nullity. AvUa v. AvUa, 30 Law J. Rep. (n.s.) Prob. M. & A. 104. An application for leave to file an answer after the cause has been set down for trial, must be supported by an affidavit shewing reasonable ground for grant- ing it. Jago V. Jago, 32 Law J. Eep. (n.s.) Prob. M. & A. 49. 220 DIVORCE AND MATRIMONIAL; (T) Practice. (j) Payment into Court. The Court has no power to order immediate exe- cution for the recovery of damages awarded against the co-respondent and ordered to be paid to the petitioner, nor to order that such damages be paid into court. Pounsford v. Pounsford, 30 Law J. Rep. (s.s.) Prob. M. & A. 188 ; 2 Swab. & T. 389. A sequestration having been issued against the estate of M, who was the plaintiff in an action in which he had recovered G51. 5s. and costs, the Court ordered the solicitor for the defendant in that action to pay the 651. 6s. into the registry, not to be paid out until further order ; the solicitor to have notice of any application respecting it, so tliat he might enforce his lien for any extra costs to which he might be entitled, and to be indemnified against costs which he might incur in enforcing his lien beyond the amount of the fund. Munt v. Munt, 31 Law J. Eep. (K.s.) Prob. M. & A. 134. (r) Damages. (1) Vnfovmded Claiinfor. A petitioner having claimed damages from a co- respondent, evidence was produced by the co-respon- dent shewing that the respondent was leading an abandoned life when he made her acquaintance, and raising a strong suspicion that the petitioner must have been aware of that fact :— Held, that the co- respondent ought not to be condemned in costs on the ground that the claim for damages was improper under the circumstances. Manton v. Manton, 34 Law J. Eep. (n.s.) Prob.M. & A. 121; 4 Swab. & T. 159. (2) Assessment and Measure of. Tn assessing damages against the co-respondent, the jury are to take into consideration the same cir- cumstances as would have been considered by a jury in an action for criminal conversation. Comyn v. Comyn, 32 Law J. Rep. (n.s.) Prob. M. & A. 210. In the assessment of damages against a co-respon- dent the measure of damages is the value of the wife of whom the husband has been deprived. As a general rule, evidence of the co-respondent's means is inadmissible. Semble, however, that the jury may take his wealth into consideration, if he has used it as a means of seducing the wife. Cowing v. Cowi/ngt 33 Law J. Rep. (n.s.) Prob. M. & A. 149. (3) Application and Investment of. A jury having assessed the damages against a co- respondent at 260Z., the Judge Ordinary ordered the petitioner to assign his interest in them to a trustee for the benefit of the child of the marriage. Claris v. ClarJc, 31 Law J, Rep. (n.s.) Prob. M. & A. 61; 2 Swab, i T. 520. In a suit by a husband for a dissolution of mar. riage, a jury assessed the damages against the co- respondent at 1,000^., and the co-respondent was condemned in costs. The Court ordered the damages to be paid to the petitioner in trust to pay thereout such costs as should not be recovered against the co-respondent, and as to the residue in trust for the children of the marriage in equal shares, to be paid to them on attaining twenty-one. Spedding v. Sptdding, 32 Law J. Rep, (jr,s.) Prob, M. & A. 31, Upon pronouncing a decree of dissolution of mar- riage on the ground of the wife's adultery, the Court ordered that the damages (2,500Z.) assessed by the jury should be applied, in the first instance, to the payment of so much of the petitioner's costs out of pocket as should not be taxed against the co- respondent, and that the residue should be settled upon the respondent for life dum casta vixerit ; and after her death, or on breach of that condition, upon the issue of the marriage. Narracott v. Nwrracott, 33 Law J. Rep. (n.s.) Prob. M. & A. 132 ; 3 Swab. & T. 408. In a suit by a husband for dissolution of mar- riage, an order was made that a portion of the damages should be settled on the wife for life " dum casta vixerit." The Court refused afterwards to vary the order by making the wife's interest continue only '* dum casta ef innupta vixerit." Narracott v. Narracott, 34 Law J. Rep. (n.s.) Prob. M. & A. 64 j 4 Swab. & T. 76. After an order had been made directing the ap- plication of damages, which had been assessed against a co-respondent, for the benefit of the petitioner, the respondent and their children, an agreement was made between the petitioner and co-respondent in which no provision was made for securing to the children the benefit which they would have taken under the order. The Court, on the application of the respondent, although her interests were not affected, enforced the order. Forster v, Forster, 34 Law J. Rep. (n.s.) Prob. M. & A. 88 ; 4 Swab. & T. 131. Where a husband had obtained a decree of dis- solution, upon the ground of adultery, with 150?. damages against the co-respondent, permanent ali- mony was refused, but the damages awarded were ordered to be invested in the purchase of a govern- ment annuity for the wife's benefit. Laiham v. Latham, 30 Law J. Rep. (n.s.) Prob. M. & A. 43. (4) Speedy Payment of. Where damages, awarded by a jury against the co-respondent in a suit by the husband for disso- lution had been ordered to be paid to the petitioner, and it appeared that he was in danger of losing them, the Court ordered they should be paid within ten days. Bent v. Bent, 30 Law J. Rep. (n.s.) Prob. M, & A. 189. (s) Attachment. (1) Generally. A husband who has been served with a decree in a suit for restitution of conjugal rights ordering him to take his wife home, is bound to take the first step by inviting her to return to him. If he does not, an attachment will be issued. If he has not appeared in the suit, notice of the motion for an attachment is not requisite. Alexander v. Alexander, 30 Law J. Rep. (n.s.) Prob. M. & A. 173; 2 Swab. & T. 385. An affidavit of non-payment of taxed costs and alimony to the person to whom they are ordered to be paid cannot be read on a motion for an attachment if filed subsequently to the notice of motion. Symons v. Symons, 30 Law J. Rep. (n.s.) Prob. M. & A. 215. Where it is sought to charge a second attachment DIVORCE AND MATRIMONIAL; (U) Cobts. 221 upon a person already in custody under a prior writ, the practice of the Court is, conformably with that of the Court of Chancery, that, upon motion for Buch writ, a habeas should issue to the keeper of the Queen's Prison to bring up the prisoner, and, upon his being present on the day named, that he should be charged accordingly. Dickent t, Dicheru, 31 Law J. Rep. (U.S.) Prob. M. & A. 69; 2 Swab. & T. 521. An attachment will not be granted for non-pay- ment of money pursuant to order, unless a copy of. the order be annexed to or recited in the affidavit of service. Lidmore v. lAdmore, 32 Law J. Rep. (N.B.) Prob. M. & A. 134. An attachment for non-payment of alimony was granted, although the order did not state to whom payment was to be made, where it appeared that the wife and her solicitor had at the same time demanded payment of the husband and he had paid neither. Ladmore v. Zadmore, 32 Law J. Rep. (n.s.) Prob. M. & A. 157. (2) Conterrypt. The use of threatening expressions to a person cognizant of facts in issue in a suit with the inten- tion of intimidating him and preventing him from giving evidence at the hearing, is a contempt of Court. Shaw v. Shaw, 31 Law J. Rep. (».s.) Prob. M. & A. 85 ; 2 Swab. & T. 517. Threatening a petitioner to publish concerning him a statement of facts unless he withdraws his petition, is a contempt of Court. In're Malock, 33 Law J. Rep. (^-.s.) Prob. M. & A. 205 ; 3 Swab. & T. 599. A party who is in contempt for non-compliance with an order of the Court cannot be heard, except for the purpose of purging the contempt. Garstin v. I>e Garston, 34 Law J. Rep. (n.s.) Prob. M. & A. 45 ; 4 Swab. & T. 73. (*) Seguestration. A bankrupt who has obtained an order of dis- charge under the Bankruptcy Act, 1861, is thereby protected from any proceeding to enforce the pay- ment of alimony for the non-payment of which he has been attached before the order of discharge. A sequestration against his estate for such alimony therefore will not be granted. Dickens v. Dickens, 31 Law J. Rep. (n.s.) Prob. M. & A. 183 ; 2 Swab. & T. 645. On non-payment of certain sums due by way of alimony and costs, a writ of sequestration issued against the respondent's property, and an order was made on K to pay into court a sum of money awarded in an action in the Queen's Bench to be paid by K to respondent. On motion on behalf of petitioner to order such sum to be paid out in part satisfaction of her attorney's taxed costs and her own alimony, the Court refused to make such order, H and F, respondent's attorneys in the action in the Queen's Bench, having satisfied the Court, on affi- davit, that they had a lien for costs in that cause exceeding the sum so paid into court. Mimt v. Munt, 2 Swab. & T. 661. («) Change of Attorney . Where an order has been made for the change of the attorney in a. suit; the order must be drawn up and filed in the registry, before any step can be taken by the fresh attorney. Grice v. Orke, 82 Law J. Rep. (n.s.) Prob. M. & A. 134. (U) Costs. {a) Of the Wife. (1) General Points. In a suit for dissolution of marriage on the ground of the wife's aMultery, the respondent and co-respon- dent denied the charge, and the respondent further charged the petitioner with adultery. It appeared at the hearing that this latter charge was substantially the joint defence of the respondent and co-respon- dent. A jury found that the respondent and co- respondent had not been guilty of adultery, and also that the petitioner had not been guilty of adultery. It was held, the respondent was entitled to the whole of her costs incurred in supporting the first issue, although they should exceed the sum deposited in the registry, but that as to the second issue she was entitled only to a moiety of the costs incurred. Burroughs v. Burroughs, 31 Law J. Rep. (n.s.) Prob. M. & A. 124. By section 51. of the Divorce Act, the Court which hears the suit has absolute authority over costs, and no appeal as to costs only lies. The settled practice of the Courf is, that -the wife, if she fails, will not be entitled to taxed costs beyond the sum of money paid into court by the husband at the order of the Registrar. In the present case the Court rejected a motion for an order on the husband to pay the balance of the wife's taxed costs above such sum of money paid into court, and condemned the wife's solicitor in costs of the motion. Glenni^ v, Glewnie, 3 Swab. & T. 109. Quaere — Whether,if dissatisfied with the Registrar's order, the wife's solicitor ought not then to have ap- plied to the Judge Ordinary to vary such order. Ibid. Where a new trial is granted on the apphcation of the wife, the Court cannot impose upon her the terms of payment of costs if she has no means, but the husband must pay the costs of both parties. Nicholson v. Nicholson, 32 Law J. Rep. (n.s.) Prob. M. & A. 127; 3 Swab. & T. 214. A wife, pending a suit by her for a judicial sepa- ration, returned to cohabitation, no order for the taxation of her costs having been made. The husband, therefore, applied to have the petition dismissed: — Held, that it could be dismissed only upon payment of the wife's costs. Cooper v. Cooper, 33 Law J. Rep. (n.s.) Prob. M. & A. 71 ; 3 Swab. & T. 392. In a suit by a husband for dissolution of marriage, a jury found that the wife had committed adultery. On a new trial, granted on the ground of surprise, the wife succeeded. The Court being of opinion that the case was trumped up by the husband, condemned him in the wife's costs of both trials, and also in the costs of the rule for a new trial. Nicholson v. Nichol- son, 33 Law J. Rep. (n.s.) Prob. M. & A. 114. The dismissal of a petition does not prevent the Court from enforcing, by attachment, the payment of alimony and costs previously ordered to be paid by the petitioner. Bremner v. Bremner, 83 Law J. Rep. (n.s.) Prob. M. & A. 202 ; 3 Swab. & T. 378. Where in a suit by a husband for dissolution of marriage, the co-respondent is found to have been guilty of adultery, under such circumstances as 222 DIVORCE AND MATRIMONIAL; (U) Costs. would entitle the petitioner to the costs of that issue, the dismissal of the petition on the ground of the petitioner's adultery does not necessarily dis- entitle him to such costs. Ibid. Where a wife, in her answer to a petition for dis- solution, traversed the adultery charged, and brought several counter-charges against the petitioner, which appeared at the hearing to be entirely without foun- avies's Will, 29 Beav. 93. A married man bequeathed his residue to his niece and "all his other nephews and nieces on both sides": — Held, that the nephews and nieces of his wife participated in the bequest. Frogley v. PhiUips, 30 Beav. 168 ; 3 De 6ex, F. & J. 466. Bequest by will to cousins (" descendants from my father's and mother's brothers and sisters "), with a substituted gift to the " issue " of any dying in the testator's life, the issue to take their parent's shares: — Held, that " cousins " must be construed " first cousins," and that " issue " meant only the children of first cousins, notwithstanding the testator had, by a codicil, excluded by name all his first cousins, and, his uncles and aunts being all dead, he could not possibly have any other first cousins. Stevenson v. Abingdon, 31 Beav. 305. A bequest of stock after the death of J W, " unto and amongst his issue male," will be confined to males claiming through males, and cannot include males claiming through females. I/ywood v. War- wick, 30 Law J. Rep. (n.8.) Chanc. 507 ; wi nom. I/ywood v. Kirnber, 29 Beav. 38. A testator directed a policy on the life of his son John to be settled, and the interest to be paid to John's widow for life, and after her decease to her "offspring": — Held, that the children of John who survived him were entitled to the exclusion of grand- children. Lister v. Sidd, 29 Beav. 618. Bequest to the testator's grandchildren and nephews and nieces. The testator had no brothers or sisters, and therefore no nephews and nieces : — Held, that the nephews and nieces of his wife were entitled. Hogg v. Cook, 32 Beav. 641. The testator gave his residuary real and personal estate to his wife for life, and after her decease to his brothers T and E, " or their heirs in proportion to the number of children each might have then living, share and share ahke." At the death of the wife both the brothers were dead ; and there were then living four children of T and two of E: — Held, that the word " heirs" meant "children," and that the residue was divisible in sixth; amongst the children living at the death of the wife. Roberts v. Edwards, 33 Law J. Rep. (n.s.) Chanc. 369 ; 33 Beav. 259. A testator, in 1841, bequeathed 200 guineas to such of the representatives as might be alive at his death of Messrs. P & H, then both dead, with whom, in 1793, he had had some business by which they were losers to the amount of about 200 guineas ; — Held, that the legal representatives of P & H, and not the partners in the firm at the death of the testator, were entitled ; and, secondly, that such representatives took in equal moieties, and not in the proportion of their shares in the partnership. Leak v. Macdowall (No. 2), 33 Beav. 238. A will directed that all legacies should be paid within six months after the testator's death. By a codicil executed on the day of the testator's death, after gfving 5002. a piece to five of the grandchildren of his brothers by name, he bequeathed 5002. to legatees thus described ; " each child that may be born to either of the children of either of my brothers, lawfully begotten": — Held, that of the children of my brothers' children, neither those bom at the date of the codicil nor those begotten after the testator's death were entitled, but only children en ventres leurs mires at the date of the codicil and of the testator's death. Tovmsend v. Ewrly, 3 De Gex F. & J. 1. Gift by a testator to the children of his late brother John ; and, in another clause, there was a gift to the issue of his said brother. The brother John had only one son, who died in the testator's lifetime, leaving four children: — Held, that these four grandchildren were entitled, there being no children. Berry v. Berry, 3 GifF. 134. Bequest to " Francis the youngest son of T G." He had no son Francis, but he had an eldest named Arthur Francis, and 'a youngest named Arthur Charles, who was the testator's godson : — Held, that the youngest was entitled to the legacy. In re Oregory's Settlement and Will, 34 Beav. 600. (i) Gift to a Class. (1) Sow made. The rule that the Court will lean to a construction which gives portions to all of a class of children who may live to require them, is not confined to settle- ments, but extends also to wills. The rule will be applied so as to modify express words of gift, though the instrument contains no necessary implication to that effect. Jackson v. Dover, 2 Hem. & M. 209. Gift of residue upon trust for testatrix's adopted daughter A for life, then upon trust to pay to all the children of A living at her decease equally at twenty- one or marriage, unless such day of payment should happen in the lifetime of A, and then the payment to be postponed till the death of A, but to be a vested interest in each of the children at twenty-one or marriage: — Held, that a son who attained twenty- two, and died in A's lifetime, was entitled to share. Ibid. A testator gave his residuary estate to his wife for life, and after her death upon trust for his and her next-of kin in equal shares. The testator was ille- gitimate : — Held, that it was a gift to a class ; that the Crown could take no interest, and that the only surviving brother of the wife was entitled to the fund. Bxiok v. the Attorney Oemeral, 31 Law J. Rep. (n.s.) Chanc. 791. 342 LEGACY; (B) Who take as Lboatees. K C, by will, directed that his residuary, real ^nd personal estate should be sold and converted ; and that his trustees should hold four-sixths of the pro- ceeds upon trust for three reputed daughters and a lawful daughter (naming them) of his brother during their respective lives, and after their respective deaths upon trust for their children respectively, as they should respectively appoint, and in default of appoint- ment upon trust for the children of the four daughters respectively, in equal shares, with cross-executory trusts as between the children of the same parent as regards the shares of male children dying under twenty-one and female children dying under twenty- one and unmarried, with an ulterior trust in case the said four daughters should all die without leaving any child or children, or leaving such, if such children should all happen to die under twenty-one, and without having been married. One of the four legatees died without having been married : — Held, that as to her share cross-limitations must be implied between the other three legatees and their children, corresponding with the limitations contained in the will of the original shares. In re ClarJc's Trusts, 32 Law J. Kep. (M.S.) Chanc. 525. Held, also, that no such cross-limitations could be implied as to the share of any daughter after once a child of that daughter had attained a vested interest, even though the daughter might subsequently die wiikout leaving a ckUd, the proper function of the cross-limitations being not to divest any estate once vested, but merely to supply the gap left by the testator. Ibid. A testator, by will, gave the residue of his pro- perty equally to all and every the children of R B and B B who should be living at his decease, and to ten other persons by name ; and one of the latter died in the testator's lifetime: — Held, that the ten persons named were not members of a class, and that the share of the deceased legatee lapsed. In re Chaplin's Trusts, 33 Law J. Rep. (n.s.) Chanc. 183. Under a bequest to trustees for " my four nephews and niece, children of my brother Richard, namely, Robert, Richard, Francis, and Margaret Jane," — Held, that a fourth nephew (also a son of Richard), Thomas by name, was not entitled to share. Olamville v. GlanvUle, 33 Law J. Rep. (n.s.) Chanc. 317; 33 Beav. 302. A gift of residue by will "to the persons herein- after appointed my executors" in equal shares, held (distinguishing Kmk/ht v. Gould, 2 Myl. & K. 295) to be a gift to those persons as individuals. Hoare V. Osiome, 33 Law J. Rep. (n.s.) Chanc. 586. By a marriage settlement certain real and personal property was vested in trustees to be dealt with and disposed of as the wife should from time to time, by deed, appoint, and, until such appointment, upon trust, during the lives of the husband and wife, to pay the income to the wife for her separate use, and if the wife should die first, then the property to be held in trust for such persons as she should, by will, appoint, and in default of appointment, for the husband for life, and after his decease for other persons absolutely ; and the settlement contained a full covenant to settle all other property of the wife. There were no children of the marriage ; and soon after it had taken place the lady exercised the first power, and re-settled the property, with this difference, that she then excluded her husband from any life interest in it. On the same day she made her will, whereby, in exercise of the powers reserved to her, she appointed the property upon trusts for conversion and payment of debts and legacies, and as to all the residue of her real and personal estate, after answering the purposes aforesaid, she gave and bequeathed the same " to the persons thereinafter appointed her executors, in equal shares," and ap- pointed A, B and C her executors, of whom A attested her will, and B pre-deceased her: — Held, first, that the gift was to A, B and C as individuals, and that C took one-third only of the residue ; and, secondly, that the remaining two-thirds went under the settlement trusts, as in default of appointment. Ibid. Bequest to a brother for life, and at his death to be equally divided amongst his surviving children and my niece R W: — Held, that this was not a gift to a class, and R W having died in the life of the testator that R W's share lapsed. Drdkeford v. Brakeford, 33 Beav. 43. (2) When amd how ascertained. Bequest to A, with a direction that if she should leave children, "to be left to them": — Held, that this was a gift to the children of A, who survived her, in joint tenancy. Noble v. Stow, 29 Beav. 409. Bequest 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 out of and for accumulation of income, and of advancement out of the presumptive shares: — Held, that on the first child attaining twenty-one the class was ascertained, and that the children afterwards born were excluded. Bateman v. Gray, 29 Beav. 447. In a gift over upon the death of any of the class without leaving issue, to the " survivors," the word *' survivors" was construed " others," in consequence of the ultimate gift over being only to take effect on the death of " all" the class without issue. BoUcmd V. Allsop, 29 Beav. 498. A testator gave his daughter a life annuity of 501., and from and immediately after her death he be- queathed l,000t unto her children, share and share alike, payable twelve months after the daughter's death. This was payable exclusively out of the testator's real estate: — Held, that those children alone of the daughter who survived her participated in the 1,000/. In re CaHledge, 29 Beav. 583. A testator bequeathed a house, described as copy- hold, to his wife for life, and at her death to be disposed of for the benefit of her surviving children, share and share alike. The house was in fact lease- hold: — Held, that only those children who survived the widow were entitled to share in the proceeds of the house. Thompson v. Thompson, 29 Beav. 654. If a bequest is made to a class to be ascertained, and it consists of persons, some of whom are within and some without the limits allowed by law, as the class cannot be ascertained until the period may have elapsed which is beyond the limits allowed by law, the whole bequest is void. WilldTison v. Duncan, 30 Law J. Rep. (k.s.) Chanc. 938 ; 30 Beav. 111. If a stated sum is given to each member of a class, wholly independent of the same, or a similar gift to every other member of a class, and cannot be affected LEGACY; (B) Who take as Lbqatees. 343 Tfhether the others receive their legacies or not, the gift is good as to those who are within the limits allowed by law. Ibid. G W appointed a trust fund for the benefit of his children in manner thereinafter mentioned, namely, to pay 2,000i to each of his daughters as and when they attained twenty-four, and to divide the residue between the sons'equally, if more than one, as and when they respectively attained twenty-four: — Held, that the appointment was good as to daughters attaining twenty-four within twenty-one years after the death of G W, but that it was void as to the sons and such of the daughters as did not attain twenty- four until after the period allowed by law. Ibid. A testator bequeathed his residue to his widow for life, with remainder to his nephews and nieces living at her decease, and he substituted their children for any who should die in her life. But if any of the nephews and nieces should die in the life of the wife, without having any child " then living," he directed his share to go to the survivors of the nephews and nieces. A nephew died without children in the life of the widow ; — Held, that his share did not go to the survivors at his death, but the survivors at the death of the widow. Essex v. Clement, 30 Beav. 525. A testator, by his will, gave 2,000A to trustees, upon trust to pay the interest thereof to his daughter for her separate use for life, and after her death for her husband and children, and in case his daughter should not leave any children, then to assign and transfer such sum unto such person or persons as should happen to be the testator's next-of-kin, according to the Statute for the Distribution of Intestates' Effects. The daughter survived the testator, and died without ever having been married : — Held, that the class of next-of-kin was to be ascer- tained at the death of the testator, and that they took as joint-tenants. In re the Trusts of Greenwood's Will, 31 Law J. Rep. (n.s.) Chanc. 119 ; 3 Giff. 390. Bequest to be equally divided between R G " and my brothers and sisters or their children," and unto J J: — Held, that the children of such of the brothers and sisters as were dead at the date of the will could not take by substitution. In re Aim Wood's Will, 31 Beav. 323. A testator gave certain dividends to hie son, and at his death, to his (the testator's) surviving daughters and their lawful offspring. The testator left his son and also four daughters him surviving. The will was attested by two of the daughters, and of these two one died during the son's lifetime and the other sur- vived the son : — Held, that the period for ascertaining the survivorship was the death of the son ; that the word " oifspring" meant "issue," and that therefore the daughters took absolutely as joint-tenants. Also, that the gift to the attesting daughter who survived the son being, by section 15. of the Wills Act, simply void, the other daughters, as joint-tenants, took the whole, and there was no lapse. Young v. Davies, 32 Law J. Rep. (h.s.) Chanc. 372 ; 2 Dr. & S. 167. A testator bequeathed a legacy to such of his nephews and nieces (children of A B) as should be living at his death equally, and he provided as follows ; that in case any nephew or niece " shall die in my lifetime" leaving children living at my decease, such children should stand in their parent's place, and be entitled to the share which the deceased parent would have been entitled to if living at my decease. A child of a niece who had died prior to the date of the will, was held entitled to participate in the legacy. In re Chapman's Will, 32 BeaV. 382. Bequest to A, and at his death (with certain exceptions) to B, and " at her decease" to be divided amongst four named persons, *' or as many of them as may be living" : — Held, that those only took who survived both A and B. Knight v. Poole, 32 Beav. 548. A testator bequeathed his funded property to his widow for life, and afterwards to his brother for life, and then to be equally divided amongst his brother's surviving legitimate children and his niece R W : — Held, that the survivorship had reference to the death of the brother only. Draheford v. Drakeford, 33 Beav. 43. Gift to A for life, and after her decease to all the children of B who should be living at the testator's death, or be born afterwards, who should attain twenty-one, with a direction that no child should be excluded in consequence of any other child having attained a vested interest : — Held, that the class was to be ascertained upon the latter of these two events, viz. a child of B attaining twenty-one, and the death of A ; and that a child born after that period was excluded. Parsons v. Justice, 34 Beav. 598. Legacy to A for life, and at her death to be equally divided between her two sons (who were named), or given to the survivor of them: — Held, that the survivorship had reference to the death of the tenant for life. NayUr v. Sotson, 34 Beav. 571. (3) Per Capita or per Stirpes. A testator directed the residue of his personal estate " to be equally divided between his sisters J and H, and the lawful issue of his deceased sisters E and A, in equal shares if more than one of such respective lawful issue" : — Held, that one fourth of the residue was given to each^f the sisters J and M, one other fourth to the issue of E as tenants in com- mon, and the remaining fourth to the issue of A as tenants in common. Davis v. Bennet, 31 Law J, Rep. (if.s.) Chanc. 337. A substituted bequest was held subject to the same contingency as the original bequest. In re Corrie's Will, 82 Beav. 426. A testator bequeathed his residuary personal estate to his nephew and niece equally, and after their re- spective deaths, amongst their "issue," if there should be any "children " to take their parent's share. But in case the nephew or niece died without issue, or leaving such they should die under twenty-one with- out issue, then he gave his or her share to the other of them, or his or her issue, "if he or she be then dead leaving issue as aforesaid." The niece died in 1861 leaving issue; the nephew died in 1862 leaving no issue: — Held, that "issue "in the first part of the will meant "children," but in the latter part "issue generally," and that on the death of the nephew all the issue of the niece then living took per capita. Ibid. Bequest to the descendants of the brothers and sisters of the testator's grandfather in equal shares, per stirpes and not per capita. These were two 344 LEGACY; (C) What Property passes. sisten: — Held, that the fund was divisible in the first instance into moieties, and that one belonged to the descendants of one sister fer capita, and the other moiety similarly to the descendants of the other. Robimon v. Shepherd, 32 Beav. 665. (4) Children, Zegitimate and Illegitimate. Illegitimate children, unless they are expressly mentioned, cannot be included in a class. Edmunds V. Fessey, 30 Law J. Rep. (u.s.) Chanc. 279 ; 29 Beav. 233. A testator gave "to each of the sons and daughters of his late cousin T H 1001. a-piece." There were three sons and a daughter, one son and the daughter being illegitimate: — Held, that the gifts were made to a class, and that the illegitimate son could not take any legacy, as there were sons to answer the description, but that the daughter, being the only one, was entitled to her legacy by express descrip- tion. Ibid. A testator gave a large sum of money upon the happening of several contingent events, " to be equally divided amongst the children, legitimate or illegitimate, of my brother H B." At the death of the testator illegitimate children only were living. Legitimate children were afterwards born : — Held, that the fund vested in the illegitimate children on the death of the testator, subject to be divested on the birth of legitimate children, and that it was divisible equally among both classes. Bartiett v. Tugwdl, 31 Law J. Rep. (n.8.) Chanc. 629 ; 31 Beav. 232. A testator and two legatees perished in a ship which was supposed to have foundered. There being no evidence of survivorship, — Held, that the bequest failed. Ibid. (C) What Property passes. (o) In general. Where there is a bequest particularized by one word, followed by general words, the latter will not be restricted to things ejuedem generis. Swinfen v. Swinfen, 29 Beav. 207. A testator devised to Mrs. S "all his estate at Swinfen, or thereto adjoining ; also all furniture and other movable goods here": — Held, that the live stock and implements of husbandry, which were in or about the lands and premises adjoining the man- sion at Swinfen (at which the testator resided), passed by this bequest. Ibid. Held, also, that money in the house at the testa- tor's death amounting to 5411, also passed to the legatee. Ibid. General words in a bequest following a specific enumeration of articles in a particular locality will be confined to articles ejusdem generis. Thus, a bequest of " all and singular my household furniture, plate, linen, china, pictures, and other the goods, chattels and effects which shall be in or upon or about my dwelling-house and premises at the time of my decease," held not to include a sum of money found in the house. Giiis v. Lawrence, 30 Law J. Kep. (k.s.) Chanc. 170. A bequest in general words will not be restricted by the enumeration of articles forming part of a previous gift. Oover v. Davis, 30 Law J. Rep. (n.s.) Chanc. SOS ; 29 Beav. 222. A reversionary interest in residuary estate will pass under the words, "Also the whole of my pro- perty and effects, that is to say, my box, clothing and bedding, &c. &c.," if, from the context of the will, the words of enumeration may be referred to articles previously given. Ibid. A bequest of household furniture, plate, china and household effects will pass a cabinet of gold, silver and mounted snuff-boxes, and also agate and enamel jewel-cases, displayed in the drawing-room of the mansion-house. Field v. Pechett, 30 Law J. Rep. (n.s.) Chanc. 813 ; 29 Beav. 573. Indefinite bequest of the income of personalty held not to carry the corpus. Buchanan v. Harri- son, 31 Law J. Rep. (n.s.) Chanc. 74 ; IJo. & H. 662. Gift of " personal estate and property whatsoever and wheresoever," held not to pass real estate. Ibid. A testator by his will said, "I give to my wife all my household furniture, plate," &c., "and other effects of the like nature, and all wines," &c., "which shall at my decease be in or about any dwelling- house then occupied by me " : — Held, that, in con- struing the bequest, the sentence ought to be divided into two, and that the qualification as to his dwel- ling-house applied only to the latter part; there- fore, that it passed plate at the testator's banker's, family plate in the possession of the testator's father as tenant for life, and to which the testator was entitled absolutely in remainder, and also the pro- duce of family plate wrongfully sold by the tenant for life, and furniture, &c., deposited for safe custody at a warehouse. BomviUe v. Taylor, 32 Beav. 604. Bequest by testator of all the furniture (except plate and pictures) which might be in a house men- tioned at his decease: — Held to be confined to articles of solid silver, and not to include a plated service in the said house. Holden v. Jtamsbottom, i Giff. 205. A testatrix, by her will, after disposing of various portions of her property (other than Spanish bonds), bequeathed "the remainder of her money in the Spanish bonds" to her nephews and nieces, and stated her intention to be to divide her property equally between her two sisters' children. The bulk of the residue consisted of Spanish bonds: — Held, that the general residue passed under the above bequest ; the words " in the Spanish bonds " being, under the circumstances, descriptive only of the nature of the investment of the bulk of the pro- perty comprised in the bequest. PatricJe v. Teat- herd, 33 Law J. Rep. (n.s.) Chanc. 286. A legacy given thus, " £1. 0. 0.," which stood between two other legacies for lOOZ. each, the dots between the figures being smeared as if for the pur- pose of obliteration, — Held, to be a legacy for 1001. Manchee v. Kay, 3 Giff. 546. (6) "Money." An officer in the army died abroad, having by hi» will, dated the day before his death (after giving two legacies of 101. each, and directing his carpet-bag, portmanteau and sea-chest to be sent to England to his father), directed that " the remainder of his money and effects might be expended in purchasing a suitable present for his godson." After payment of the testator's debts, there remained in the handa of the paymaster of his regiment a sum of about 11?. At the time of his death the testator was LEGACY; (D) What Interest vests. 345 entitled to a reversionary interest in one-third of two sums of 2,397Z. consols, and ll,3i4Z. consols; — Held, affirming the decision of one of tlie Vice Chancellors, that the testator's reversionary interest in the above sums did not pass to his godson by the direction, that " the remainder of his money and effects might be expended in purchasini^ a suitable present for his godson." Borton v. Dunhar, 30 Law J. Rep. (n.s.) Chanc. 8. Bequest by G K to his wife, Mrs. K, of "all sum and sums of money that may be in my house." Certain shares in an assurance company were found, after the testator's death, in a chest in which he usually kept his ready money, inclosed in an enve- lope, on which was indorsed, in the testator's hand- writing, " To be considered as ready money, and given to Mrs. K for her use. — G K" : — Held, that the shares passed to Mrs. K as ready money under the above bequest. Knight v. Knight, 30 Law J. Eep. (ir.s.) Chanc. 644 ; 2 Giflf. 616. A testatrix gave all her real estate to trustees upon trust for her sister and her husband and the survivor for life, and then upon trust to sell and stand pos- sessed of the purchase-money, upon trust, as to one fourth, to divide it equally betweAi the children of her deceased aunt D D ; as to one other fourth, to divide it equally among the children of her deceased aunt E B ; as to another fourth, to divide it equally between the children of her deceased uncle F C ; and as to the remaining fourth, to divide it equally between the grandchildren of her deceased aunt M D. Provided that, in case any child or children of the first three legatees, or any grandchild or grandchil- dren of the last should>die in the testatrix's lifetime leaving any child or children living at her decease, who should live to attain twenty-one, then the child or children of each such child or grandchild so dying in her lifetime should represent and stand in the place of his, her or their deceased parent, and should be entitled to the same share which his, her or their parent would have been entitled to if living at her decease, equally. The testatrix gave all the residue of her personal estate to the trustees upon trust to convert such parts as should consist of money or securities for money, and to invest, with power to vary securities, and pay the dividends to her sister C and her husband for life and divide the principal amongst the persons to whom the proceeds of the realty were given. The testatrix had money at her bankers', and several of the persons forming the class of ''children" to whom the proceeds of the realty were given were dead at the date of the will: — Held, first, that money at the bankers' was not included in the words "money or securities for money," which were both included in the words following the gift to the trustees of the residue ; and that issue of children who were dead at the date of the will took under the "substitutionary words of the proviso. Held, also, that the word "children" did not include "grandchildren." Lorimg v. Thomas, 30 Law J. Rep. (n.s.) Chanc. 789 ; 1 Dr. & S. 497. M, by her will (made subsequently to the Wills Act), gave a legacy of 1,0002. and half her residuary estate to her daughter P, a married, woman, for her separate use. P having under her marriage settle- ment a general power of appointment over all pro- perty coming to her during coverture, by her will, in pursuance of such power and every other pnwer Digest, 1860—66. thereunto enabhng her, appointed two specified sums of money and "all other her moneys and securities for money over which she had any power of disposi- tion," to her executors upon certain trusts, and appointed all her "goods, chattels, and separate per- sonal estate and effects, not thereinbefore disposed of," to other persons. P pre-deceased M, leaving her husband, who also pre-deceased M, and issue who survived M : — Held, that the legacy of 1,0002. and moiety of M's residuary estate passed by the residuary appointment in P's will. In re Mason's Will, 34 Law J. Rep. (n.s.) Chanc. 603 ; 34 Beav. 494. A bequest of "money and securities for money " will not carry a legacy due to the testator from another testator's estate. Ibid. SembU — The will of a child legatee who dies in the parent's lifetime leaving issue is, with reference to the property bequeathed to such child by the parent, to be construed as if the child had survived the parent ; but whether as if the child had died immediately after the actual date of the parent's death or as if the parent had died immediately before the actual date of the child's death — queers. Ibid. General residue of personal estate was held to pass under the words "residue of money," the will commencing with a general bequest of everything "in trust for the following purposes," and the gift of money being preceded by bequests of specific chat- tels. Montagu v. the Earl of Sandwich, 33 Beav. 324. The word " money " coupled with the word " cash," held, confined to money strictly and properly so called. Nemnson v. Len/nard, 34 Beav. 487. The word "money" standing by itself is confined to the proper meaning of that word ; yet if money be given after a direction to pay debts, legacies, and funeral and testamentary expenses, or with any other words which denote an intention on the part of the testator to dispose of the whole of his estate, it will be construed as synonymous with "property." Ibid. (D) What Interest vests. (a) Absolute. Bequest of a residue to the testatrix's father " to spend both principal and interest or any part of it during his lifetime," should he "not spend the pro- perty " then in trust for the testatrix's sisters : — Held, that the bequest to the father was absolute, and that the gift over was inconsistent with it and inoperative. Henderson v. Cross, 29 Beav. 216. A testator gave all his real and personal estate to trustees, in trust to pay and make up to his wife 1,2002. per annum for her life, and upon trust to pay and divide the residue of his property unto and amongst his children living at his decease ; and after the decease of his wife, he directed that the said sum of 1,2002. per annum should go to and be equally divided between and among all and every his children who should be then living: — Held, aflirraing the de- cision of one of the Vice Chancellors, that this annuity was not perpetual, but limited to the lives of the widow and children. Lett v. Bandall, 30 Law J. Rep. (n.b.) Chanc. 110. A testatrix directed her executor to purchase an annuity of 502. a year in government securities for ffer servant M S: — Held, that the annuity was per- 2Y 346 LEGACY; (D) What Interest vests. petual, and not for life only. Boss v. Borer, 31 Law J. Rep. (n.s.) Chanc. 709 ; 2 Jo. 6^ H. 469. A wine merchant, possessed of a large stock of wine, by his will gave all his household goods, &c., and everything that he died possessed of, to his wife for life, and he bequeathed the whole of his effects that might be remaining after her death to his daughter: — Held, that the wife took absolutely the wine which the testator had for his private use, but a life interest only in the rest. Phillips v. Beal, 32 Beav. 25. A testator made an indefinite bequest of the interest of his residue to a class of children equally, with a declaration that thgy should have the right to will away their shares on their deaths. There was a gift over, if they should omit to make their wills: — Held, that they took absolute vested interests, and not a life interest with a power to bequeath, and that the gift over was void for repugnancy. Weale v. Olliver, 32 Beav. 421. A testator bequeathed to his wife 4,000?. to be used for her own and the children's benefit as she should think best, recommending her not to diminish the principal, but vest it in government or freehold securities. There being two children, one adult and the other a minor, the widow made an appointment of 500Z. to the minor, and of the residue to the adult, and she and the adult cbild petitioned for payment out of court of the residue : — Held, afiirmihg a deci- sion of the Master of the RoslI, that such payment could not be ordered. Bart v. Tribe, 1 De Gex, J. & S. 418. Bequest of the use of the " book debt or capital " employed in the testator's trade at his death, — Held, upon the context to pass the absolute interest therein. Terry v. Terry, 33 Beav. 232. The testatrix directed her residuary estate " to be divided equally " between her two grandchildren, on the youngest attaining twenty-one. She added, if they both marry a relation of J D, then the residue is to be divided between my nephews and nieces. The grand-daughters having attained twenty-one, and being still unmarried, the Court declined deciding the validity of the gift over, but held that they were entitled to payment subject to any future question. Bird V. PincJcney, 33 Beav. 273. Gift by a testator of 3,000Z. to a woman, with whom he had contracted an invalid marriage, " to be for her sole and separate use during her lifetime, and while she continues unmarried; thereafter,should she marry, the principal sum with accruing interest thereon, to pass into the hands of the residuary legatee: — Held, an absolute gift subject to a gfft over in case of her marrying again. M'Culloch v. M'CuUoch, S Giff. 606. (6) For Life. Bequest of personal estate to C, " and to his first and other sons after him in the usual mode of suc- cession," — Held, that C took for life only. Spar- ling V. Parher (No. 3), 29 Beav. 460. A testator directed his trustees to set apart out of his personal estate 10,000Z. consols, and to pay the dividends thereof to his sister for life, and after her decease to retain so much of the 10,000Z. as should be suflicient to realize the yearly income of 1501., and to pay the dividends of the trust fiind so retained to his nephew until he should become bankrupt, or assign away or encumber his interest, in which cases the trust declared for the benefit of his nephew was to cease and determine, and, the said bum of lO.OOOi. was to fall into the testator's residuary estate. The nephew died without having become bankrupt or encumbered his interest: — Held, that the interest given to the nephew was not an absolute interest, but one only for his life. Banks v. BraithwaiU, 32 Law J. Eep. (n.s.) Chanc. 198. Bequest of 140i. to A B, the interest to be paid to her during her life, and at her death to be paid to her children, followed by the appointment of a trustee, and by a direction (not limited to her life) to pay her the interest: — Held, that A B took a life interest only, and not an absolute interest subject to the gift to her children. In re Cfraham's Will, 33 Beav. 479. A testator gave his estate to his wife and his four children in equal proportions ; but his wife was to "have her proportionate part" for her life, and it was given afterwards to the four children. And as to " the part of his estates" thereinbefore given to his daughter, she was to have it for life, with remainder to her children : — Held, that the part of the daughter included her share in the part given to the wife for life, and that therefore she was only entitled to a life interest in it. Watson v. Pryce, 34 Beav. 71. (c) Joint Tenancy or Tenancy in common. A legacy to several persona and their executors and administrators respectively makes them tenants in common. In re Moore's Settlement Trusts, 31 Law J. Rep. (n.s.) Chanc. 364. A testator gave legacies to his children absolutely, and then gave the income of his residuary estate to his wife for her life, and directed that after her death the income should be divided equally among his said children; he directed that thecapitalshouldbedivided equally among all his grandchildren: provided, never- theless, that in case of the death of any of his said children leaving lawful issue, " the respective legacy, share and interest" of the child and children so dying should immediately thereupon become vested in such his, her or their issue respectively : — Held, that upon the death of a child leaving issue before the period of distribution, the income of that share of the residue of which the child had been tenant for life was payable until the period of distribution to the issue as joint tenants, and not to the surviving chil- dren of the testator. Walmsley v. Poxhall, 1 De Gex, J. & S. 606. Under a will. A, B, C and D became entitled to a sum of stock as tenants in common. C, the sole executor, transferred it into the joint names of C and D. Afterwards, by the deaths of A and B, C and D became equally entitled to the shares of A and B : — Held, that C and D were tenants in common of the whole fund. Eames v. Godwin, 31 Beav. 25. Under a will, C and D were entitled equally to a sum of stock. C, the executor, with the concurrence of D, transferred it into the joint names of C and D: — Held, that they thereby became joint tenants. Ibid. Bequest of the income of the residue equally amongst three daughters, A, B and C, " during the term of their natural lives and the lives of the sur- vivors and survivor of them during their and her natural life," with a gift over " after the decease of LEGACY ; (E) Vested or Contingbst. 347 the survivor of them." A died :— Held, that B and C were entitled to the whole income, and that on the death of either of these two, the survivor would be entitled for her life to the whole income. Crans- vyich V. Pearson; Pearson v. Cranswich, 31 Beav. 624. A gift to a class, without words of severance, will not be construed as creating a tenancy in common merely because afterborn members of the class may be let in. Secus — if the gift, in terms, necessitates a vesting in different members of the class at dif- ferent times, as where it is to children on their respectively coming of age. Band v. North, 33 Law J. Rep. (n.s.) Chanc. 556. A testator by a codicil to his will gave to his two grandchildren, J and C, as they should become of age, the portion or share that would have belonged to their mother under the will, had she survived the ^ testator. J survived the testator, and attained twenty- one ; C survived the testator, but died under age : — Held, that the grandchildren took as tenants in common, and not as joint tenants, and that the share of C was undisposed of. Ibid. (E) Vested or Contingent. (a) In general. A testator directed his executors to raise a legacy " to or in trust for his son." It was to be invested in the names of the trustees, and life annuities were given to the son and his wife out of the income, and interests were given to the children of the son and to their issue, with gifts over : — Held, that there was an absolute gift to the son cut down to the limited extent of the subsequent gifts. Salmon v. Salmon, 29 Beav. 27. A testator devised his real estate to trustees, on trust to apply the rents towards the maintenance, &c. of his children, until the youngest attained twenty-one, then upon trust to sell and " pay, share and divide" the moneys between his children in manner following; one-fifth to W, one- fifth to T, one-fifth to S, and two-fifths to J. S died an infant : — Held, that her share was vested and passed to her representatives. Cooper v. Cooper, 29 Beav. 231. Bequest in trust for the wife and children of J H during his life, and from and after the decease of J H, in trust to pay it to his children then living, reserving one-fifth for his wife for her life, which immediately on her death was to be divided amongst J H's children generally : — Held, that the reserva- tion of the one-fifth for the wife and children was contingent on the wife surviving J H, and she having predeceased him that it did not take effect. Patch v. Spa/rhes, 30 Beav. 415. A testatrix directed that her trustees should stand possessed of the residue of her estate in trust as to one moiety, and the dividends thereof, to pay the same to her daughter A for life, and then upon trust as to the «aid moiety and the dividends and accumu- lations thereof until it should be payable and distri- butable, to pay the same to the children of A who should survive her, at twenty-one, with benefit of accruer and survivorship ; and she gave the other moiety in similar terms to her daughter B ; and in case, at the decease of either of her said daughters, there should be no children of such daughter who should have lived to attain a vested interest under the trusts of the will, then the moiety of such daughter Bodying and the dividends and accumulations thereof, to be held upon trust for the other daughter for life, and her children afterwards. And if upon the death of the survivor of the two daughters there should be no child or children of either who should have lived to attain a vested interest under the trusts in the two moieties, then the entirety of the two moieties and the dividends and accumulations thereof to be held in trust for the testatrix's six nephews and nieces on attaining twenty-one. The daughter A died before the testatrix, and she then made a codicil directing that her moiety should go to B in the same manjier as it would have gone to A if she had lived ; and she gave an annuity for the maintenance of the only daughter of A until she should attain twenty-one. B died, leaving six children, infants : — Held, that the interest of the six grandchildren of the testatrix was not vested until they attained twenty-one, and the dividends must be accumulated ; and that the nephews and nieces were not entitled, under the gift over, until default in the attainment of twenty-one by the grandchildren. Bull v. Jones, 31 Law J, Rep. (n.s.) Chanc. 858. Gift by a testator of the personal estate to his wife for life, remainder between and among his seven children by name, or such of them as should be living at his wife's decease, and the issue of such as should be dead leaving issue, with power to apply the presumptive share of such issue for maintenance. A son of the testator died after his father's death leaving an infant daughter, who died in the lifetime of the testator's widow : — Held, that such infant took a vested share. In re the Trustees' Selief Act ; in re Pell's Trusts, 3 GifF. 153. Gift of residue on trust to pay the dividends to the testatrix's son for life (except what was required for the education of her son's children) ; and should her son die before all or any of his children should attain twenty-one, she wished each child to receive their share on attaining twenty-one ; but should all his children die before himself, at his death then over : — Held, that a child who died an infant in the lifetime of tlie son had not acquired a transmissible interest. Chadwick v. Greenall, 3 GifF. 221. A testatrix directed the trustees of certain funds over which she had a power of appointment, from and immediately after her death, to stand possessed thereof upon trust to raise thereout 5,000J. and to pay the same to the five children of her deceased sister in equal shares, the shares of sons to be paid at twenty-one, the shares of daughters at twenty- one or marriage, and to apply the income arising from the residue of the trust funds as in the will mentioned : — Held, that this was a vested legacy, that it was severed from the remainder of the trust funds, and that the legatees were entitled to the interest of the fund set apart to answer it. Dundas v. Wolfe Murray, 32 Law J. Rep. (n.s.) Chanc. 151; 1 Hem. ffi M. 425. The fiction or indulgence of the law which treats a child en ventre sa mere as actually born, applies only for the purpose of enabling such child to take a benefit to wliich if actually born it would have been entitled : in all other cases, the word " born " must have its natural interpretation. Blasson v. Blasson, 34 Law J. Rep. (n.s.) Chanc. 18 ; 33 Law J. Rep. (U.S.) Chanc. 403 ; 2 De Gex, J. & S. 665. A testatrix bequeathed personal property to trus- tees to invest and accumulate, and when and so soon 348 LEGACY; (E) Vested oa Contikgent. as the youngest of the three children her nephew and nieces who should have been " born and living " at the time of her decease should arrive at the age of twenty-one jears, then the stock, with its accu- mulations and increase, to be divided equally among all such children as should be then Uving. There were several children of the nephew and nieces who were actually born at the decease of the testatrix, two others were en ventre sa m^re, and several others were both begotten and born after her decease : — Held, first, varying the decree of one of the Vice Chancellors, that the children who were en ventre sa mire at the time of the testatrix's death could not be deemed to have been then born and living, and, consequently, that -the period of distribution was when the youngest of the children actually born attained the age of twenty-one years ; and, secondly (affirming the decision of the Vice Chancellor), that all the children of the nephew and nieces living at the time of distribution, whenever born, were entitled to share in the fiind. Ibid. A testator gave his residuary estate to trustees in trust for his wife for life, and after her decease in trust to distribute and divide it amongst such of his four nephews and two nieces named in the will as should be living at her death in equal shares ; but if any or either of them should then be dead, leaving issue, then it was his will and meaning that such issue should be entitled to their father's or mother's share : — Held, that issue of a deceased child were not entitled to their parent's share unless theyfwere living at the death of the testator's widow. Solgate V. Jennings, 34 Law .T. Kep. (n.s.) Chanc. 120 ; 34 Beav. 79. A legacy was bequeathed, payable as soon as legal proceedings connected with the fund, out of which it was to be paid, should be terminated : — Held, that this was neither a reversionary interest nor a contin- gent legacy. Luff v. Lord, 34 Beav. 220. A testator bequeathed his real and personal estate in trust to pay, for the benefit of his son (a lunatic), an annuity, until he should be able to manage his affairs, and if he ever returned to a sound mind, then he directed he should " divide " his residuary estate with his sister. The testator then gave the whole residue (subject to the contingency of his son's becoming of sound mind) to his daughter for life, and afterwards as she should appoint : — Held, that the daughter took the whole subject to the an- nuity and to the contingency, but that if the son recovered his reason he would be entitled, not only to one-half of the capital, but to one-half of the income from the testator's death. Hole v. Savies, 34 Beav. 346. (6) Period of Vesting. W A, by will (after confirming his marriage settle- ment under which his wife took a life interest in certain property, and making other bequests to her), gave to his wife and two others, as trustees, the re- sidue of his ready money, and money out at interest owing to him at the time of his decease, upon trust » to pay certain legacies ; and then to pay, distribute and divide the remainder to and between all his nephews and nieces who should be then living. He directed that the share of his nephew T should be subject to the payment of 100?. due from him (T) to W. The testator declared that, in case of the death of any of his nephews and nieces before receiving their respective shares, the shares of them so dying should be paid to and amongst the survivors. By codicil (which he declared should be taken as part of his will) the testator gave pecuniary legacies, and gave to H B a suit of mourning at his decease, which he empowered his executors to buy for her and give her out of his personal effects ; he gave to F B articles of furniture (enumerated) after the death of his wife, and gave his wife all the residue of his real and personal estate during her life. One of the Vice Chancellors decided that the widow of the testator took no life interest in the ready money and money out at interest, but that the same belonged to the nephews and nieces ; that such of the nephews and nieces as survived the testator, but died in the life- time of the widow, did not thereby lose their interests ; that the proper time for payment of the legacies was one year after the death of the testator ; that a niece who died within that year without having received her share was not entitled ; and that the share of the nephew T not amounting to 100?., that share should be paid to W so far as it would go in payment of the debt of 1001. On appeal, their Lordships affirmed the Vice Chancellor's judgment, except as to the share of the niece who died within the year of the testator's death ; but the parties agreeing, she was admitted to share, the point remaining undecided. In re the Trusts of the Sesi- duary Moneys of WUliam Arrow&miih, and in re the Trustees' Belief Act, 30 Law J. Rep. (n.s.) Chanc. 148. A substitutional legacy to the children of a legatee dying before the period of distribution, vests in all the children who survive their parent, whether they survive the period of distribution or not. In re Wild- man's Trusts, 30 Law J. Rep. (n.s.) Chanc. 174 ; 1 Jo. & H. 299. A testator gave to his daughter the interest and dividends of all moneys which should be standing in his name in the 3?. per cent, reduced annuities, for her separate use ; and, after her decease, the prin- cipal of the stock to the child or children of his daughter, in equal portions, on their attaining the age of twenty-one years. In case of the daughter's decease before her husband, the interest of the principal sum of stock to be enjoyed by him during his life ; but should the daughter die without having any issue, then, after the decease of the husband, the principal of the stock to revert to the testator's son absolutely. The testator's daughter died before the testator, leaving one daughter, who, after the death of the husband, died under age and without issue : — Held, that the gift to the children of the testator's daughter was contingent ; and, upon the death of the only daughter under twenty-one, the testator's son became entitled to the stock. In re Wrangham's Trust^ZO Law J. Rep. (n.s.) Chanc. 258 ; 1 Dr. & Sm. 358. A testator gave the residue of his real and per- sonal property to trustees to sell and stand possessed of the proceeds, upon trust to pay the dividends and interest thereof to his wife for life, to be by her expended in or about the maintenance of herself and the maintenance and education of his children, and after the decease of his wife the testator gave the principal of the said trust estate unto or amongst all his children equally, and to be paid to them as LEGACY ; (F) On what Pbopbrty chakseable. 349 they should severally attain twenty-one, with benefit of survivorship amongst them. There were seven children ; and two of them upon attaining twenty- one, while four of the others were yet infants, petitioned jointly with the mother that the amount of their shares might be paid to them for their advancement in the world : — Held, that the shares became vested upon the children attaining twenty- one, and though the Court would not usually sanc- tion the payment of the shares, where the whole income was not ample for the maintenance of the children, yet such a course might be adopted in this case upon the undertaking of the two children to secure to the mother the dividends which would have accrued in respect of those sums. Berry v. Bryant, 31 Law J. Rep. (n.s.) Chanc. 327 ; 2 Dr. & S. 1. A testator bequeathed leaseholds in trust for his wife for life, and after her decease to apply the rents for the maintenance and education of all his children living at his decease ; and after all his said children should attain twenty-one, upon trust to sell and "pay and divide" amongst all his said children; and "if but one or but one surviving child," the whole to such child ; — Held, that all the children who survived the father took vested interests. Boul- Urn V. Pilcher, 29 Beav. 633. A testator gave the residue of his personal estate, after the death of his widow, unto his two sons, John and Richard, at their age of twenty-one years, if then living, equally between them, and to the issue of either of them that should be then dead, such issue taking the share the parent, if living, would ' have been entitled to only. Both sons attained twenty-one ; John had a son, who died in his father's lifetime, and both father and son predeceased the widow of the testator : — Held, that there was an intestacy as to John's moiety. Humfrey v. Sum- frey, 31 Law J. Rep. (n.s.) Chanc. 622 j 2 Dr. & S. 49. A testator directed that the income of certain property mentioned in his will should be enjoyed by his wife and his unmarried daughters during their lives, and after the death of the last survivor of his wife and unmarried daughters the principal of the stock should be divided equally among the two eldest children born in legitimate wedlock to each of his sons and daughters. But in case there be only one child living to any of his married sons or daughters, that that child receive only the proportion divided equally, according to the number there may be : — Held, that after the death of the widow and unmar- ried daughters those children only were entitled to take who were living at the period of distribution, and the property was not vested in those who were priores natu. Madden v. Ikin, 32 Law J. Rep. (n.s.) Chanc. 3 ; 2 Dr. & S. 207. A testator, by will, gave a portion of the residue of his real and personal estate to trustees, upon trust for his son W R W, and his daughter J M W, to be divided between them in equal proportions as tenants in common, the share of his son to be vested in him at the age of twenty-four years, and the share of his daughter to be vested in her on her marriage with the consent of her guardians ; and the testator declared that in case his son should die under twenty-four and without leaving issue, or his daughter should die without having been married with such consent as aforesaid, the share of him or her so dying should be held in trust for the survivor of them, his or her heirs, executors, administrators and assigns, and to be a vested interest in him or her respectively at the same age or time as his or her ' original share. The testator also declared that if at his death his son W R W should not have attained the age of twenty-one years, or his daughter should not have been married with such consent as afore- said, it should be lawful for his trustees to apply all or any part of the income of his or her presumptive or contingent share in his said trust estates for his or her maintenance and education or benefit until such shares should respectively become vested. The son had attained the age of twenty-four and the daughter had attained twenty-one, but she had not been mar- ried: — Held, that the daughter became absolutely entitled to a share of the testator's residue upon her attaining twenty-one years of age. West v. West, 32 Law J. Rep. (n.s.) Chanc. 240 ; i Giff. 198. A testator devised his real and personal estate to trustees, in trust to sell and invest, and to pay the interest to his wife, to be applied in support of her- self and her children until they should respectively attain twenty-one ; and upon their severally attaining twenty-one, to divide the capital between his wife and children : — Held, that a child who died under twenty-one had attained a vested interest. Bird v. Maybury, 33 Beav. 351. A testator bequeathed his residue to his children in terms which gave them a vested interest, subject to be divested in favour of their children on their death under twenty-one. He then provided that if it should happen that he should leave no such children or child living to attain twenty-one, " or such, if any, dying without leaving lawful issue," then over: — Held, that "the dying" referred to was dying under twenty-one, and that the testator's children, on attaining twenty-one, acquired an inde- feasible interest. Pea/rmwn v. Pearman, 33 Beav. 394. (F) On what Propebty chakqeable. A testator gave a legacy of 400?., charged upon his real and personal estate, to be divided, upon the death of his grand-daughter, equally between her children, if more than one, or if but one, then the whole to that child, the same to be paid to such children at the age of twenty-one ; and if any child died before attaining twenty-one, then his share to go to the survivors and to the executor or adminis- trator of such as should have lived to attain twenty- one ; and the testator declared that the shares of such of the children as, upon the death of his grand- daughter, should be under twenty-one, should bear interest at the rate of 51. per cent, per annum from her decease, such interest to be paid towards their maintenance, until their respective shares should become payable. No child lived to attain twenty-one, and the personalty was insufficient. It was held, that the legacy could not be raised out of the real estate, which had become freed from the charge. Parker v. Bodgson, 30 Law J. Rep. (n.s.) Chanc. 590 ; 1 Dr. & S. 568. A testator charged his debts upon his real estate, -and gave several legacies to his trustees for the benefit of divers persons. He then devised his real estate to trustees to sell, and directed that it should be con- 350 LEGACY; (G) Specific or Demonstkative. sidered as converted from the time of his death, and that the money to arise from the sale and the inter- mediate rents and profits should be considered as part of his residuary personal estate, which he directed liis trustees to hold for some of the legatees: — Held, the personal estate being insufficient, that the legacies were payable out of the real estate. Field v. Peckelt, 30 Law J. Eep. (x.s.) Chanc. 811 ; 29 Beav. 568. A testator, possessed of real and personal estate, gave 4,000i. to trustees, for the benefit of several persons in succession, and directed that in case his personal estate should be insufficient, the amount should be raised out of his real estates. The residue of his real and personal estates he gave to H, who, after dealing with both estates, ultimately made his will, and disposed of some of the real estates of the testator. Upon his death, the 4,000Z., with an arrear of interest, was left unpaid ; and upon a bill filed to obtain payment, — Held, that the residuary legatee had not affected the charge upon the property of the testator, but that his real and personal estate re- mained liable to pay the 4,000;. and interest ; that if the personal estate was sufficient, the residuary legatee, by taking it, had made his own assets liable ; that if insuflBcient, both the real and personal estate of the testator remained liable ; that a general direc- tion to raise money by way of mortgage on real estate does not exonerate the personal estate, or make the real estate primarily liable under the 17 & 18 Vict. c. 113 ; and that such act can only apply Tvhen the sum to be charged has been ascertained, and the real estate taken subject to the charge, Hepworth v. Hill, 31 Law J. Rep. (ts.s.) Chanc. 669 ; 30 Beav. 476. A testatrix charged the whole of her real and per- sonal estate and effects with the payment of her debts, funeral expenses and legacies. She devised a copyhold messuage to her nephew for life, with remainder to his son and his heirs for ever. She then gave some pecuniary legacies, and she bequeathed the residue of her real and personal estate and effects not before specifically given, to her nephew, his heirs, executors, administrators and assigns respectively ; — Held, that the specifically devised copyholds were charged with the pecuniary legacies. Maskell v. Farrington, 31 Law J. Rep. (n.s.) Chanc. 712. A testator directed that his debts should be paid by his executors ; he then gave two legacies, one to one of his executrixes, to be paid to her in addi- tion to what was afterwards devised to her ; and gave the residue of his personal estate and all his real estate to five persons, whom he appointed execu- tors, in equal shares, as tenants in common : — Held, that the legacies were charged on the real estate. Peacock v. Peacock, 34 Law J. Rep. (n.s.) Chanc. 31.5. One of the five devisees died in the testator's life- time : — Held, that as between the heir and devisees the lapsed share was, in the hands of the heir, liable to bear a rateable proportion only of the debts and legacies. Ibid. A testator having bequeathed numerous pecuniary legacies, some of them to charities, gave the residue of his real and personal estate to trustees on trust to sell and thereout to pay his debts and legacies "herein mentioned," and further directed the before- mentioned charitable bequests to be paid, and that the proceeds of such part of his estate as the law did not permit to be given to charities should be first applied in payment of such legacies herein men- tioned as were not given to charities. He further directed that no charitable bequest should be legally payable till six months after his decease. By a codicil he gave numerous other charitable le^cies, and gave the residue of hisproperty among charitable legacies : — Held, that the words " herein mentioned " included the legacies given by the will and codicil taken together. Secondly, held that, having regard to the distinction made in the will between property capable of being bequeathed for charitable purposes and property not so applicable, the word " property" in the codicil signified such property as was legally applicable to the purpose of the legacy. Thirdly, that the charitable legacies were not payable on the ex- piration of six months, but in the ordinary way. Jauncey v. the Attorney General, 3 Giff. 308. (G) SPECiric OR Demonstrative. A widow, being entitled to one-third of her hus- band's pergonal estate, took out administration, and having sold out a sum of stock belonging to him, she re-invested the produce with a small addition in another stock in her own name. By her will she bequeathed to her younger son all her share in the personal property of her husband, to which she became entitled at his decease : — Held, that the stock passed as a specific bequest to the legatee. Moore v. Moore, 29 Beav. 496. A bequest of the sum of 2,000Z. long annuities, described as standing in the name of the testatrix, who had only SOOl. of that stock, held to be specific, and not demonstrative, and to fail as to the de- ficiencv. Gordon v. JDuff, in re Ward, 3 De Gex, F. & .f. 662. A testatrix bequeathed a large amount of " stock " legacies, declaring that by the word " stock " she meant government stocks, or stocks or shares in public companies, to which she might be entitled. She had various such stocks and shares: — Held, that the gifts were specific, and that the legatees were entitled to a proportionate share of each of such stocks and shares. Measwe v. Carleton, 30 Beav. 538. C W, believing herself to be the wife of B C, made her will ; and after reciting her desire to give several legacies, she requested B C (who died before her) to pay several legacies out of property of hers which she assumed he had become entitled to on their marriage : — Held, that they were demonstra- tive legacies, and payable out of the general estate. Jonei V. SmUludl, 32 Law J. Rep. (n.s.) Chanc. 130 j 32 Beav. 31. F H, by his will, gave certain annuities, and directed that they should be paid by his trustees out of the rents of his real estate. The testator then devised his real estates to trustees, upon trust out of the rents and income to pay the annuities, and s^ib- ject thereto upon other trusts. F H died, and the rents and income of his real estates were insufficient to satisfy the annuities :— Held, that the gift was not specific, but demonstrative, and that the de- ficiency must be paid out of the capital of the testa- tor's residuary personal estate. Paget v. Huish, 32 Law J. Rep. (n.s.) Chanc. 468; 1 Hem. & M. 663. Devise of residue of real and personal estate on trust to permit A B to receive and take the rents, LEGACY; (I) Conditional 351 issues and profits for life, with remainder over: — Held, that A B was entitled to enjoy leaseholds and railway stock in specie. Vachell v. Roberts, 32 Beav. 140. Where a testator, having claims against his firm, directed his proportion of capital invested in the business to be converted into cash, such cash to be paid over as realized (with the exception of certain bequests thereinafter mentioned), to a charity, and requested his executors, as soon as convenient after his decease, out of the capital employed in the busi- ness, to pay the persons mentioned below the following sums, &c., the Court held, first, that the legacies were demonstrative, and not specific, and that if the particular fund failed, the deficiency was payable out of the general personal estate not specially given ; secondly, that the proportion of capital included not only the testator's share in the assets, but also the debt due from the partner. Bevan v. tJie Attorney General, 4 GifF. 361. (H) SrBSTiTnTiONAL OR Cumulative. A testator, by will, gave a legacy to his son, who was a member of a co-partnership firm. The mem- bers of the firm were after the death of the testator adjudged bankrupt, and at the time of the bank- ruptcy the firm was indebted to the testator's estate : — Held, that the assignees of the bankrupt partner- ship were not entitled to the legacy so long as the partnership debt remained due to the testator's estate. Smith v. Smith, 31 Law J. Rep. (u.s.) Chanc. 91; sum. 263. A testator, by will, gave a legacy to a person who was entitled, under the trusts contained in the testa- tor's marriage settlement, in default of appointment, to a portion of a sum of 1,000Z., due as a specialty debt from the testator to the trustees of such settle- ment. The Court, in the absence of such trustees, refused to declare that the legacy was pro tanto a satisfaction of the portion of the sum of 1,000Z. payable to the legatee. Ibid. Gifts of legacies of different amounts to the same persons, by two dififerent testamentary instruments, — Held, substitutional, and not cumulative. Tuckey v. Hendersmi, 33 Beav. 174. By her will, a testatrix, under an existing power, appointed 1,0001. to A B. By a subsequent testa- mentary instrument, she bequeathed 1,0001. to A B,; — Held, that the gifts were cumulative. Ibid. (I) Conditional. If a master bequeath an annuity to his servant pro- vided she be in his service at the time of his decease, and two days before his death, and during the current year of service he dismisses her from his service with- out any just cause, and she in consequence leaves his house, she is not entitled to the annuity. Ba/rlow v. Edwards (Ex. Ch.), 32 Law J. Rep. (n.s.) Exch. 51 ; 1 Hurls. & C. 547. A legacy was given to a person who was appointed an executor as follows ; " I give to my friend J S, banker's clerk, and one of the executors of my will, 501." J S renounced probate : — Held, that the legacy- was not conditional on the acceptance of the executorship. In re Dendy, 31 Law J. Rep. (n.s.) Chanc. 184; subnom. InreI>enby,3DeGex,F.&J. 350. A testator bequeathed a legacy to M V in case she should be in his service at his decease. The testator was shortly afterwards removed to a lunatic asylum, and M V, who was a yearly servant, voluntarily quitted the house, receiving from the family her wages up to the end of the year, which did not expire till after the death of the testator : — Held, that she was not entitled to the legacy. In r Serres^s Estate, Yennes v. Marriott, 31 Law J. Rep. (n.s.) Chanc. 619. A legacy was given to trustees upon trust for I D for life, in case he should marry the testator's niece E, and after his decease in trust for the eldest son of I D who should be living at his death and have attained twenty-one. And in case I D. should not marry E the bequest was not to take effect, but was to sink into the residue. I D, with the testator's consent, married another woman, and she and E, who was still unmarried, were both living. Upon a bill by the son of I D to secure the legacy, — Held, that a marriage with E was a condition precedent to vesting the legacy, and that it was not dispensed with by the assent of the testator to a marriage with another woman. Davis v. Angel, 31 Law J. Rep. (n.s.) Chanc. 613 ; 31 Beav. 223. Though a vested interest given by will may be divested by a mere clause of revocation, without any gift over, yet, if the divesting clause contain a gift over so ill expressed as to leave the testator's inten- tion respecting the destination of the fund uncertain, it will fail of effect altogether, and the vested interest will remain absolute. In re Catt's Trusts, 33 Law J. Rep. (n.s.) Chanc. 495 ; 2 Hem. & M. 46. A testatrix gave residuary real and personal estate to trustees, upon trust to sell and convert and distri- bute the proceeds equally amongst her brothers and sisters, by name, subject to the proviso thereinafter contained. The proviso referred to directed that all the residuary legatees should withintwelve months after they should severally become entitled to their shares take the name and arms of Willett, and in case any such residuary legatee should refuse or decline or neglect to comply with the requisitions of the proviso within twelve months after they should become so entitled, then the estate and interest of him, her or them in the trust moneys under the will, should after the expiration of the said twelve months cease and be void to all intents and purposes what- soever, and the part or share of him, her or them in the same, should thenceforth go and be paid and applied in the same manner in all respects as if he, she or they so refusing, declining or neglecting was or were actually dead : — Held, that the testator not having clearly pointed out what should be the desti- nation of the property in the event contemplated, the proviso was not an effective divesting clause, and that legatees who refuse to comply with the condi- tions thereof were entitled to their shares. Ibid. Testatrix appointed an estate to her husband for life, remainder to trustees, upon trust forherdaughters, subject to a proviso that her son should be at liberty to purchase the estate for 8,000Z, on giving notice within twelve months after the husband's death, the right of pre-emption to determine if the notice were not given within that time; and she limited the 8,0O0Z. on trust for the daughters and their issue : — Held, that the condition must be read as meaning within twelve months after the estate came to the trustees, and that a notice given within twelve months 3.-) 2 LEGACY ; (K) Forfeiture. of tebtatrix's death, though two years after the death of her husband was sufficient to entitle the son to the option of purchase. Evans v. Stratford, 2 Hem. & M. 143. A bequest of an annuity to a married woman " in the event of the death of or her separation from her present husband," was followed by a right to reside in the testator's house " in the event of the death of her husband or her separation from or living apart from him. She was separated from him, not by any legal separation, but by reason of his infirmity : — Held, that she was entitled to the annuity. Bed- horough v. Bedborough. (No. 2), 34 Beav. 286. (K) FORFEITUKB. A testator gave his residuary estate to trustees, and directed them to pay the income to his nephews for life, or until any of them should be declared bankrupt, and upon the bankruptcy or death of any nephew his share was to be paid to the children of such nephew. It was also declared that the share of any nephew dying without children should vest in the surviving nephews and their children at the same time and in the same manner as the original shares, or as near thereto as circumstances would admit : — Held, upon the bankruptcy of a nephew, that the interest of the children was accelerated, and that the original and accrued shares passed to the children of such nephew though he had ceased to be bankrupt, and had obtained his certificate before the accrued share fell in. Sorseti v. Dorsett, 31 Law J. Rep. (n.s.) Chanc. 122 ; 30 Beav. 256. It has been long established that a condition in restraint of marriage of a testator's widow is valid : and, semile, the opinions preponderate in favour of such a condition being lawful in the case of any widow. At all events, there is no decided authority in our law for saying it is void. Therefore, where a testator gave an annuity out of real estate to the widow of his nephew, and declared that if she should marry again the annuity should cease, the annuity was held to be forfeited on her second marriage. Newton v. Marsden, 31 Law J. Eep. (n.s.) Chanc. 690; 2 Jo. & H. 356. Bequest to testator's widow during widowhood, remainder to his son-in-law " during the term of his natural life or marriage again," with a gift over after the decease or marriage of the son-in-law : — Held, on the construction that this was a gift for life or until marriage, and not a gift with a condition of defeasance on marriage. Evans v. Eosser, 2 Hem. & M. 190. Whether a condition defeating a gift to a man on his second marriage is good or bad — gucere. Ibid. A testator gave a share of his estate to his nephew, but declared, that if he should " make any claim or demand against his estate " it should lapse, and there was a gift over. Two years before the testator's death a dispute had arisen between him and his nephew as to some cottages. The testator distrained on the tenants, and then replevied, and after the testator's death the nephew distrained, and it was determined, in a consolidated action, that the cot- tages belonged to the testator: — Held, that there was no forfeiture, the proceedings of the nephew being defensive, and the proviso pointing to acts subsequent to the testator's death. Warbrick v. Varley (No. 2), 30 Beav. 347. (L) In Satisfaction op Debt. A sum of 2001!. was charged on a brother's estate in favour of his sister. By his will he devised the estate in trust to raise 9502. for his sister owing (as he expressed himself) to her by him : — Held, that the 200Z. was thereby satisfied. ShadboU v. Van- derplank, 29 Beav. 405. A testator, being by virtue of his marriage settle- ment under an obligation to pay the trustees 5,000i. in trust for his wife for life, by his will bequeathed 10,0002. to other trustees for his wife for life, and he also directed the payment of all his just debts : — Held, that the bequest was not a satisfaction of the 5,000?. and that the widow was entitled to both provisions. Pinchin v. Simms, 30 Beav. 119. A testator on the marriage of his son, covenanted to pay an annuity of 1002. a year to his daughter-in- law, if she survived his son, dwrante viduitate. By his will, the testator bequeathed to her an annuity oft he same amount, but which differed in several respects, and he directed the payment of all his debts: — Held, that the latter annuity was not a satisfaction of the former. Charlton v. West, 30 Beav. 124. A legacy by a debtor to a creditor held to be a pro tanto discharge of the debt, it appearing that the testatrix had made a proposal to that effect to her creditor, and that he had not objected to the arrange- ment. Hammond v. Smith, 33 Beav. 452. A testator having covenanted on the marriage of his daughter F to pay to the trustees of her settle- ment, within twelve months after his death, a share of personalty equal to the share which the most favoured child and his issue should take by his will, gave one-fifth of his personal estate to each of two children and a daughter of a deceased child, one other fifth to the said trustees, and one other fifth upon trust for his son H for life, with a gift over for want of issue to the other three children and a grand- child, the shares of daughters and the grand-daughter to be for their separate use : — Held, that the whole will indicating an intention to put the families of the children on an equality, the contingent gift for the separate use of F was intended as a satisfaction of the covenant and was bound by the trusts of the settlement. Davenport v. HinchcUffe, 1 Jo. & H. 713. (M) Ademption. A gift by a father of 1,OOOZ. to the husband of his daughter on the day of their marriage will not, in the absence of evidence, be considered as in satis- faction of a legacy of the same amount given to the daughter by a will subsequently made, though the will contained a clause that daughters, who received portions during his lifetime, should not be entitled to receive any legacy given for their benefit. M'Clv/re v. Evans, 30 Law J. Rep. (n.s.) Chanc. 295. Upon an intended marriage between B C and C W, which under the 6 & 6 Will. 4. c. 64. was void in its inception as being contracted with the husband of a deceased sister, C W assigned various mortgage debts, stocks and securities to trustees by way of settlement. She afterwards by will directed her trustees to hold all the trust moneys and the securities upon trust in the proportions mentioned for the several persons named who should be living LEGACY; (O) Lapse. 353 at the decease of B C; she then gave several legacies to persons by name, C W survived B C; she de- stroyed the settlement and also the assignment of some of the securities to the trustees, and took re- transfers of stock into her own name, and died with- out altering her will; — Held, that the legacies were not adeemed by the destruction of the deeds, but that they were adeemed to the extent to which she had called in, received and re-invested the trust moneys on new securities. Jones v. Southall, 32 Law J. Rep. (n.s.) Chanc. 130 ; 32 Beav. 31. A testator, by his will, gave a legacy of 700?. to his daughter. He subsequently gave her 1002. as a wedding present before her marriage, and after her marriage he gave her husband iOOl. He afterwards made a codicil to his will, and without noticing these gifts he confirmed his will : — Held, affirming a de- cision of the Master of the Rolls, that the gifts were not an ademption of theilegacy ; but, dvMtanteTwrner, L.J.,a3 to the gift of the 4002. Ravensa-oft v. Jones, 33 Law J. Rep. (n.s.) Chanc. 482 ; 32 Beav. 669. A father gave a legacy to trustees for the benefit of his daughter and her husband and their children, and he directed that any money he should advance, lend, or pay to her or her husband beyond what was secured by their marriage settlement should be de- ducted from the legacy, and he ordered the sums advanced to be ascertained from his books of account, which were not to be questioned. The testator, upon the marriage of his daughter, had agreed with the husband's father, in addition to provisions made by settlement, to allow his daughter 150Z. a year. The testator for thirteen years treated the 1502. a year in his books of account as a liability he was bound to discharge, but he afterwards altered his accounts by debiting the former payments thereof as advances, and thenceforth until his death he treated the pay- ments in respect of the allowance as advances : — Held, that as the testator was in equity bound to pay the 1502. a year, the payments in respect thereof were not advances ; that the Court was not bound to treat the entries in the books, founded as they were upon an obvious mistake, as conclusive; and, conse- quently, that the payments of the 1502. ought not to be deducted from the legacy. Bargreaves v. Pen- ninffton, 34 Law J. Rep. (n.s.) Chanc. 180. A legacy by a parent or a person m loco parentis to a child, is not satisfied by occasional small gilts in the testator's life. Thus, a legacy of 2,5002. was held satisfied pro tanto by a gift of 1,0002. stock on mar- riage, but not by gifts of 802. and 1002., or by an annual allowance of 602. a year. Watson v. Watson, 33 Beav. 575. In order to create a case of satisfaction of a legacy given by a person in loco parentis, that relation must exist at the date of the will. Ibid. A legacy being held pro tamto satisfied by a gift of stock, — Held, that its value must be ascertained as at the time of the gift. Ibid. Bequest by a father of 7,0002. in remainder after the death of his widow, in trust for his daughter for life, with remainder to her children of any marriage: — Held, partially adeemed by a subsequent gift in possession of 19,000 rupees Indian stock, made by the father on the marriage of his daughter, and settled on her husband for life, with remainder to herself for life, with remainder to the children of that marriage. Phillips v. Phillips, 34 Beav. 19. DiSEST, 1860—65. The testator, by his marriage settlement, cove- nanted to secure his wife a life annuity of 1002. a year. By his will, he gave her an annuity of 1002. a year, — The Court held, that this was in addition, and not in satisfaction, on three grounds: First, because the testator directed his debts to be paid ; secondly, because he expressed it to be given as an addition to her own property ; and, thirdly, because he gave it in full satisfaction of her dower, freebench and thirds upon his property. Glover v. JSa/rtcwp, 34 Beav, 74. (N) Abatement. A testatrix directed her trustees to call in the sum of 6002., and after payment of debts to pay to her daughter Catherine 762. and to her daughter Margaret 752., and the residue of the 6002. she directed to be paid to S C, his executors or administrators, who should invest the same and pay the interest for the benefit of her granddaughter, until she should attain seventeen, at which time the further sum of 1002. was to be paid to each other daughters and the resi- due thereof to be invested, and the interest paid for the benefit of the granddaughter till twenty-one, when the same was to be appointed to her absolutely. Proceedings having been taken against the trustees, the 6002. was reduced by costs and expenses ; and it was held, that the legacies to the daughters were not to abate, and the gift to the granddaughter carried only so much as might happen to be the residue. Barley v. Moon, 31 Law J. Rep. (n.s.) Chanc. 140 ; 1 Dr. & S. 623. A testatrix bequeathed various sums of her Bank stock ; part of 9,0002. like stock to several legatees, and all the residue of her said Bank stock to C C. The stock at her death was insufiScient to pay the specified sums : — Held, that all these legacies, in- cluding the residue to C C, must abate in proportion. El/wes V. Causton, 30 Beav. 554, (0) Lapse. Under the 33rd section of the Wills Act, 1 Vict, c. 26, which excludes from lapse a bequest to the issue of the testator " where the legatee shall die in the lifetime of the testator leaving issue, and any such issue shall be living at the time of the death of the testat^," it is not necessary, to prevent lapse, that the issue living at the time of the death of the testator should have been living when the legatee died. The legacy in such case must be considered the property of the deceased legatee, and passes to his representatives, and not to the issue. In the goods of ParTceir, 31 Law J. Rep. (n.s.) Prob. M. & A. 8. A, by her will, bequeathed all her personal estate to her daughter B, who died a widow, and intestate, in the lifetime of the testatrix, leaving a daughter, C. C also died in the lifetime of the testatrix, intestate, leaving a husband and a daughter, D, her surviving. Upon the death of the testatrix in the lifetime of D, C's husband took out administration to Iiis wife, and then applied for administration with the will of the testatrix annexed, as representative of B, his wife's mother: — Held, that as D, a. grandchild of the legatee, was living at the time of the death of the testatrix, the legacy had not elapsed ; and that C'a husband was entitled to the grant as the representa- tive of the legatee. Ibid. 2Z 354 LEGACY; (P) Period of Faymeht. Where ■• testator gave all his personal estate in equal shares to eight societies, of which three, viz., the East London School Society, the Anti-Slavery Society, and the African Society, had become extinct before the testator's death, the last before the date of the will, the Court declined to order the shares in the fund to be applied cy-pris, and held the next-of-kin entitled. Longford v. Oowland, 3 Giff. 617. Bequest of an annuity to husband and wife "during their natural lives." The wife predeceased the testa- tor : — Held, that the husband was entitled to the annuity for his life. Alder v. Lawless, 32 Beav. 72. By her will the testatrix gave her residue to H R, and nine others, as tenants in common ; but if H B died, she gave SOOl., part of the residue, to his children. H R died, and the testatrix made a codicil giving hia children 5001. out of his share of the resi- due, and she confirmed her will except as to any legacy which had lapsed by reason of the death of the legatee : — Held, that there was an intestacy as to one-tenth of the residue beyond the 500/. In re Mary Wood's Will, 29 Beav. 236. (P) Period of Payment. A testator appointed 10,000?. each to his younger children, and all the residue to his eldest son. And he directed the income of the whole, until the youngest should attain twenty-one, to be applied in the maintenance of the minors. In the event of a younger child dying under twenty-one, he appointed his share to the eldest son in addition to the residue: — Held, that the share of a younger child, who died under twenty-one, was not payable to the eldest until the youngest child attained twenty-one. Duffield v. Currie, 29 Beav. 284. Bequest of residue to four sons equally, but the capital not to be divided until they should all become settled in life ; the interest of their portions alone to be paid after they were all provided for, until they severally became thirty years old, when the capital was to be placed at their disposal: — Held, that the sons were entitled to payment of the capital on attaining twenty-one. In re Jacobs's Will, 29 Beav. 402. A testator gave certain property, including a sum of 2,7001. stock, to his wife for life, and after his wife's decease, as to 800?., part of the said stock, upon trust for his daughter A E Y, as therein mentioned, and after the decease of A E Y, in trust for her children living at the time of her decease equally. The testator subsequently gave 1,2002., further part of the said stock, upon trust for his daughter S A V, in similar terms to those used with respect to the gift of the 800?. stock to his daughter A E Y; and after the decease of his said daughter S A V, upon trust to transfer the said 1,200Z. stock to all and every the children of his last-mentioned daughter at the same time and im the same manner as was thereinbefore mentioned with respect to the sum of 800?. for the benefit of his daughter A E Y : — Held, that a child of S A V who predeceased her mother, took no share in the fund. Swift v. Swift, 32 Law J. Rep. (n.s.) Chanc. 479. (Q) Remoteness. A testator bequeathed a legacy to his son, and after his decease, and on the youngest of the son's sons attaining twenty-one, to divide it equally between the son's sons, and the issue of deceased son's sons, who should attain twenty-one, the issue to take the share which their father would have taken if living. Whether the gift after the son's death is wholly void, or only as to the share of the issue — }ater«. Salmon v. Salinon, 29 Beav. 27. Gift by will to daughters for life and afterwards to " pay and divide" amongst their issue (children) then living, at twenty-five, the whole interest being given in the mean time for their maintenance during minority : — Held, that the gift to the children was not too remote. Tatham v. Vernon, 29 Beav. 604. A legacy to churchwardens to invest the money in government or real securities, and apply the interest to keep up, in the churchyard of the parish, the tombs of the testatrix and other members of her family, — Held to be void, as tending to a perpetuity. In re Ricka/rd; Riclca/rd v. Sobson, 31 Law J. Rep. (n.s.) Chanc. 897; 31 Beav. 244. A testator directed his trustees to set apart 2,000?. upon trust for B during her life, and after her death to pay and divide the principal among her children on attaining twenty-four, and in the mean time the dividends to be applied for their benefit: — Held, that the interest of a child was not dependent upon his attaining twenty-four, and the gift, therefore, was not void for remoteness. BeU v. Cade, 31 Law J. Rep. (n.s.) Chanc. 383 ; 2 Jo. & H. 122. Gift of residue of real and personal estate to A for life, and after her decease, in trust for all her sons and daughters who should attain twenty-two equally, with a power to apply the " annual income or fund" for their maintenance or " benefit " during their " minority," — Held, void for remoteness. Thomas V. Wilierforce, 31 Beav. 299. A testator gave his real and personal estate to his seven brothers and to the survivor for life, and after the death of the survivor, in trust to apply the income yearly to such of their children as should appear to them to stand in need of the same, and after the law admitted of no such further division, then to convey to the eldest son of his brother B then living: — Held, that the trust for division ceased twenty-one years after the decease of the surviving brother. Pownall v. Graham, 33 Beav. 242. Bequest of personal estate in trust when and as the child and children of A B should severally attain the age of twenty-one years, to pay and divide the same equally between them and the children of such of them (if any) as might depart this life under the age of twenty-one years ; but so, nevertheless, that the children of any deceased child, on attaining the age of twenty-one, should take between them, and share only as the parent would have taken if living: — Held, not too remote. PacJcer v. Scott, 33 Beav. 511. A testator declared that the bequests to one daughter (C) should be enjoyed by her for life and then be put in trust for the benefit of the children she might leave, and to be divided at twenty-five. And he in like manner directed the bequests to his second daughter (M) should be paid to her for life and after her death may be continued in trust, and may be divided equally between her children after they have attained the age of twenty-five: — Held, that the bequest to the children of M was not too remote, and that they took a vested interest at the birth. Saumarez v. Saumarez, 34 Beav. 432. LEGACY; (T) Leoact Duty and Income-Tax. 355 (R) Iktbrest ok. A testatrix directed a church to be built, and as soon as built she gave 5,0002. for the endowment of the minister, " but without any interest in the mean time." The building of the church was delayed several years by litigation, and no minister had been appointed. The Court declined to decide in the absence of the minister, whether any interest was payable on the legacy, but intimated that the interest before an appointment of a minister would not form part of the capital. Fisher v. Brim-ley (No. 4), 82 Beav. 602. (S) Bights and Disabilities of the Legatees. A testator bequeathed the residue of his personal estate (which included certain shares in the P and N I Gas Companies) to trustees, upon trust to permit his wife to enjoy the annual income thereof during her life, and after her death the testator directed his trustees to transfer into the name of C B twenty-six shares in the P Gas Company, and to transfer into the names of each of his nieces, E and M, fifty shares in the N I Gas Company; and into the name of J B the remaining fifty shares in the N I Gas Company ; and the testator expressly authorized his trustees to permit his personal estate invested at his decease to continue in the same state of investment : — Held that having regard to the particular frame of the will, any calls made during the life of the widow in respect of the gas shares must be paid out of the general residuary estate. In re Box's Trusts, 33 Law J. Eep. (n.s.) Chanc 42 ; 1 Hem. & M. 552. (T) Legacy Duty and Inoome-Tax. The testator, a domiciled Englishman, born in England of English parents, was in 1856 appointed, by warrant in the Uiiual form. Chief Justice of the island of Ceylon, to hold and exercise the said office during Her Majesty's pleasure, to reside within the said island, and to execute the office in person. The testator, after receiving the appointment, went with his wife and family to Ceylon, and while residing there and discharging his duties as Chief Justice, duly made his will, and died shortly afterwards on the island, up to the time of his death holding the ofifice and discharging his duties as Chief Justice under the appointment His widow and executrix obtained probate of his will from the District Court of the island, and also from the principal registry of the Probate Court in this country, but declined to pay legacy duty on the personal estate of the testator, on the ground that he was at the time of his death domiciled in Ceylon and not in England. The testator had left his law books in England, and by his will bequeathed them to relatives in England. He had invested large sums of money on mortgage in Ceylon, which by his will he directed his widow and executrix to collect and invest in English secu- rities. On an inforfflation filed by the Attorney Gene- ral on behalf of the Crown to obtain payment of the legacy duty on the testator's personal estate, — Held, per Owriam, that, the testator, for the purposes of pay- ment of legacy duty, was at the time of his death domiciled in England, and that the duty was therefore payable. And ^er PoUoch, C.B. — That the domicil of origin of the testator was England, and that domicil must be presumed to continue till another had been acquired, which could only bedone by actual residence elsewhere with the intention of abandoningthe domicil of origin; that the burthen of shewing that this change had been made animo et facto lay on the party asserting the change ; that the only fact proved in support of this assertion was the acceptance by the testator of an office from and to be held during the pleasure of the Crown, which did not shew either in fact or inteiUion that the domicil of origin was changed. Per BramweU, B. — That the inference to be drawn from the facts was that the testator intended to stay in Ceylon till he had earned his pension, and ultimately to return to England ; that, without determinuig the meaning of " a domicil," which might bear different meanings under different circumstances, for the purpose of exemption from legacy duty, the domicil of the testator ought to be taken to be in England, though for other purposes it might have been in Ceylon. Per WUde, B. — That the onus of proof was on those who undertook to establish the foreign domicil ; that the residence of the testator in Ceylon under his appointment did not of itself confer a domicil in that country ; and that being the only fact in favour of the foreign domicil, the other facts pointing the other way, the domicil of origin ought to prevail. The Attorney General v. Bmiie, 31 Law J. Rep. (n.s.) Exch. 314 ; 1 Hurls. & C. 31. The estate of an ambassador or attache to a legation, domiciled in this country, is not exempt from legacy duty. Such a functionary does not by his appointment to an embassy to this country lose a domicil previously acquired here. The Attorney Oeneral v. Kent, 31-Law J. Rep. (n.s.) Exch. 391; 1 Hurls. & C. 12. The testator, whose domicil of origin was Por- tugal, came in 1818 to England as agent to a wine company, and was so employed until 1833, and from that time to his death in 1859 resided in England-. In 1857 he was appointed, and continued to his death, an attache to the legation of the King of Portugal in England, and in 1858, in respect of that appointment, he claimed and obtained exemption from assessed taxes. In a testamentary paper the testator stated that, as he was a foreigner who always intended to return to his country, and was besides an attach^ to the legation of the King of Portugal, his pro- perty was not subject to legacy duty : — Held, that the testator acquired a domicil in this country, and did not lose it by the appointment of attache, and that his estate was liable to legacy duty. Ibid. Testator, who died in 1811, by his will, gave all his freehold and copyhold lands to his three nieces, as tenants in common in fee simple, subject to certain provisoes in case of marriage, with the further proviso that his nephew should have the option of becoming the purchaser of the whole in fee simple at the rate or price of 10,000Z. Zl. per cent, consols; and thai upon his said nephew investing the sum of 10,000^. consols in the names of himself and other trustees to be appointed by his said nieces, that then and from thenceforth the use in the said will before limited to the said nieces in the said lands should absolutely cease and determine, and the said lands should forthwith be and enure to the only absolute use of his nephew; and that then and from thence- forth his said nieces should, on request of his said nephew, convey the said lands to the use of his said 356 LEGACY; (T) Legacy Bvii AifD Ihoome-Tax. nephew. And the testator further declared that his said nephevr and such other persons should thence- forth stand possessed of the said 10,0002. 31. per cent, consols in trust for his said three nieces, and that after the marriage of all of them, or the death of the BurviYor of them, the said trustees should transfer the said principal 10,000i. to his said nieces and their respective executors, administrators, and assigns, in three equal shares. The nephew,in the year 1812, having exercised the option givenhim by thetes- tator's will, entered into the possession of the estates, and forthwith thereupon transferred the sum of lOjOQO^. consols into the names of himself and two others as trustees for the testator's said nieces. The said nephew survived both his co-trustees, and died, leaving the defendant, his only son and heir-at-law and executor under his will, him surviving, who proved his father's will, and thereby became sole trustee of the said 10,0002. consols upon the trusts declared by the testator's will : — Held, that a duty at the rate of 21. 10s. per cent, upon the said sum of 10,000Z. consols became payable upon the transfer thereof into the names of the trustees as directed by the said will, and that the defendant was liable for that duty. The Attorney Oeneral v. Wyndham, 32 Law J. Rep. (n.s.) Exch. 1 ; 1 Hurls. & C. 563. J B B, by will, devised real and personal property to trustees, upon trust to convert into money, and to pay the income thereof to his daughter, H M B, for her life ; and in case she should die without having married, the said property, and the income thereof, were to remain and be upon such trusts as she should by her will appoint ; and in default of any such appointment, in trust for devisor's brother, R B, and his sister, H B. H M B survived her father J B B, and died without having married, and by her will gave (subject to the payment of her debts, funeral and testamentary expenses, and certain lega- cies and annuities) all the residue of her property unto and equally between her uncle R B and her aunt H B ; and appointed her uncle R B, one E L and one T T (who renounced probate) her execu- tors : — Held (in an information against R B and E L, claiming legacy duty at the rate of 5Z. per cent, in respect of so much of the residuary estate of J B B as was appointed and disposed of by the will of H M B in favour of her unole, the defendant R B, and her aunt H B), that H M B, by making the fund in question liable to her debts, legacies, &c., dealt with it as her own, and exercised her power of ap- pointment, and that R B and H B could not reject the appointment and elect to take under the gift from their brother J B B ; and that they were there- fore liable to legacy duty at the rate of 51. per cent., being the rate according to their relationship to H M B. The Attorney QeneraX v. BracJcetibvry, 32 Law J, Rep, (n.s.) Exch, 108 ; 1 Hurls, & C, 783. Testatrix, an unmarried Englishwoman, in 1849 went to reside abroad at the house of her married sister at B, in Germany, She resided there, contri- buting towards the expenses of housekeeping, until 1863, in which year she died. Her property con- sisted of money invested In English securities, but she also possessed a valuable library, which she caused to be transported to B. She occasionally came over to England with her married sister to visit her fiiends, and while in England in Ma/i 1854, sh$ made her will, describing herself as now on a visit to my sister C, bequeathing her property to trustees to pay the annual income to her sister for life for her separate use, without power of anticipation, and with a power of appointment to her sister by deed or will. The female defendant, as sole executrix, proved the will in the Probate Court. The testatrix told her sister that if she survived her she should continue to live in Germany, and that nothing would induce her to return to England, except on an occasional visit. She also named the churchyard where she wished to be buried, and where she was afterwards buried : — Held, that her acts and declarations did not shew a sufficient intention to change her domicil ; and, assuming she intended to give up herEnglish domieil, that until she acquired a new domicil, her English domicil continued ; and that the Crown was entitled to legacy duty. T?ie Attorney General v. Mucher de WahUtatt, 84 Law J. Rep. (n.s.) Exch. 29 ; 3 Hurls. & C. 375. Held, also, on the authority of In re CapdetmUe and WaUop^s Trusts., that the Succession Duty Act (16 & 17 Vict. u. 61.) applies to all persons where- ever domiciled. Ibid. Under the 8th section of the 13 & 14 Vict. c. 97, the Court will grant an attachment, absolute in the first instance, against a person withholding legacy duty, who has failed to shew cause why he should not pay the money to the Receiver General of Inland Revenue. /» re Eaton, 34 Law J. Rep. (n.s.) Exch. 87; nom. m re Evans, 3 Hurls. & C. 662. A fund given for charitable purposes is subject to legacy duty, though it is made distributable among objects of the charity in sums not exceeding 51. Morris v. Earl Howe, 30 Law J. Rep. (n.s.) Chanc. 612; 29 Beav. 26. Bequest of legacy "free from any charge or liability in respect thereof": — Held, that it was given free from the legacy duty. Warbrick v. Varley (No. 1), 30 Beav. 241. A testator gave his residue, in trust to convert and divide into two equal parts, and he bequeathed one equal part to A free from any duty in respect thereof, and the other equal part to be given to his nephews (but without the addition of the latter words): — Held, that the legacy duty on the first moiety was payable out of any lapsed residue, and if none, out of the second moiety. Ibid. A testatrix bequeathed a legacy of 6,0002. ; she afterwards in a separate sentence said " I also give and bequeath the several legacies hereinafter men- tioned" (specifying them), "all which legacies I direct to be free from legacy duty." She then pro- ceeded : " I also give E R 2002., T C 4,6002., &c., " all which said legacies I direct shall be paid free of legacy duty ": — Held, that the 6,0002. was not included in the legacies given free of duty. Fisher v. Brierley, 30 Beav. 265. By his will, a testator bequeathed several annuities to relations in equal degree, and, therefore, subject to the same rate of legacy duty under the above act. The testator then gave all his real and personal estate to certain trustees for conversion and invest- ment, and payment of the annuities out of the yearly produce, and for accumulation of the remainder. He directed that upon the death of any of the annuitants the trustees should pay, after making provision for the payment of the remaining annul- LEGACY— LIBEL. 357 ties, the capital among a class of persons in the same degree of relationship as the annuitants, and, there- fore, subject to the same rate of legacy duty under the above act. In an administration suit a question arose as to the manner in which the legacy duty was payable. The Master of the Rolls was of opinion that the duty was payable at once upon the whole capital of the fund in respect of all the bequests ; but, upon appeal, the Lords Justices differing from his Honour, — Held, that the duty was payable on the annuities, as annuities, within section 8. of the statute, by four equal payments, of which the first instalment was to be made at the end of the first year of the annuity, and not payable upon the whole capital under section 1%. Crow v. Roiimon, 31 Law J. Rep. (n.s.) Chanc. 516. A testator gave the residue of his personal estate to trustees, upon trust to set apart 10,000i. consols, and pay the dividends to his sister for life, and after her decease to retain so much of the said sum of 10,OOOJ. as should be sufficient to realize the clear yearly income of 1501. ; and he directed the trustees to pay the dividends and other income of the stock BO directed to be retained by them to his nephew : — Held, that the nephew took the annuity, subject to legacy duty. Banks v. Braiihwaiie, 32 Law J. Rep. (n.s.) Chanc. 35. By a will, some legacies were given free of duty, and their amounts were varied by a codicil: — Held, that they were still exempt from duty. Fisher v. Brierley, 30 Beav. 267. A testator directed hjs trustees, out of the rents and profits of his estates, to keep insured and to repair all the messuages, buildings and erections upon the hereditaments previously Umited, in trust for his wife for life during the continuance of her interest therein, and also during the same period to pay and defray all taxes, parliamentary, parochial and other- wise, affecting the same hereditaments or any of them : — Held, that, under this clause, the trustees were bound to pay the property and income tax. L'.s.) Q.B. 68 ■ 4 Best & S. 670. Under 21 & 22 Vict. c. 90. s. 29. the General Council of Medical Education and Registration are sole judges whether a registered medical practi- tioner has been guilty of infamous conduct in a pro- fessional respect ; and the Council having after due inquiry so adjudged, and ordered the name of the medical practitioner to be removed from the register accordingly, this Court cannot interfere. Ex parte La Men, 33 Law J. Rep. (n.s.) Q.B. 69 ; 4 Best & S. 582. (B) Writ op. A mandamus recited local acts of parliament, by which certain dues were to be paid to the Commis- sioners of the port of S, the proceeds to be applied, first, in paying one-fifth to the corporation of S, and the residue in keeping the docks, &c. of the harbour in repair ; and other acts by which the S Dock Co. was incorporated and empowered to build docks in the harbour and levy dues, and the dock company were, in each year after the docks were opened, to pay such a sum to the Comniissioners as should make up any ' deficiency below i,O0OZ. consequent upoil such opening, in their receipts of dues under the former acts; the mandamus further recited tjiat the docks had been' opened, and that a deficiency below 1,000Z. had occurred in each of the twelve yeari ensuing, making in the whole 3,710Z. ; that no part of such deficiency had been paid in any year by, or been demanded of, the company by the Coiii- missioners for the time being, and that they had not paid any part of the one-fifth to the corporation; it then commanded the defendants (the present Com- missioners) to "take the necessary and legal measures and proceedings for obtaining and recovering pay- ment from the dock company of the said deficiency," and to pay over one-fitth to the prosecutors (ihe corporation): — Held (by CrompUn, J. and Black- hum, J., dissentienle Cockhwrn, C.J.), that the mandatory part of the writ was not too large, as it did not necessarily import that the defendants were to commence litigation with the dock company, which might be unreasonable without an indemnity from the prosecutors. R. v. the Harbour Commis sioners of Souika/mpton, 30 Law J. Rep. (if .s.) Q. B. 244; IBest&S. 6. Qncere — Whether a mandamus lies to compe one party to commence legal proceedings against another. Ibid. SenMe — That a mandamus may issue against a party for a matter in respept of which he is liable to an action or suit. Ibid, MANOR. conveyance of thepi in fee, as fi distinct property, aa for instance by being conveyed by the lord in fee without being accompanied by a declaration of the feoffor's title as lord, or without being described as lands held of the manor, but only as lands situate, lying, and being within the manor, they are severed from the manor, and cease to form part of it,al(huugh the rents and dues may remain. Ibid. On re-purchase by the lord of the fee simple, hp will hold them of the chief lord. Ibidi They will not on such re-purchase, again fortn part of the manor, so as to pass under, that descrip- tion in a will dated anterior to the purchase. Ibid. In the reign of Charles L, a grant was made by patent to Viscount Montgomery of a manor to be held in fee and common socage, with power to create as many separate manors, and to appoint as -many tenemental lands to each manor as the grantee should think fit, and also with licence to grant in fee simple or for lesser estates any of the lands belonging to such manors, to be held thereof respectively by suit of Court, and such other services or rents as he, his heirs, &c., should think fit, non obstante the Statute Quia Emptores. This patent was validated and con- firmed by Acts of the Irish Parliament. The heir of the grantee, in the year 1721, granted by indenture of lease and release to A, in fee farm, certain of the tenemental lands of the manor. They were de- scribed as " situate, lying, and being in the manor," and were to be held at a rent of SI. suit and service to the manor, payinent of small sums for leet money, and an obligation to grind corn at the manor mills; performance of each of which things was secured by covenant; and the grantor also reserved a poyver of distress : — Held, that the lands thus granted out were severed from the manor. Ibid. In March, 1836, the owner of the manor executed a will devising " the manor" to the^ younger of his two nephews. In 1842 he purchased the tenemental lands which had been .granted out in 1721. He died in October 1850, without having altered or repubr lished his will : — Held, that these lands were not by the purchase re-annexed to the manor so as to pass by the will, but devolved upon the testator's heir-at- law. Ibid. The demesne lands of a manor previously granted in fee do not become re-united to the manor, if purchased by the lord, as they would do if they had reverted to him by escheat. Delachero v. Delacherois, 11 H.L. Cas. 62. If the demesne lands of a manor are treated, in a MANSLAUGHTER.- Duty of Parent to Child. A young woman, eighteen years of age and un- married, who usually supported herself by her own labour, being about to he confined, returned to the house of her step-father and mother. The girl was taken in labour (the step-father being absent at his work). The ' mother did not take ordinary care to procure the assistance of a midwife, though she could have got one, had she chosen ; and in consequence of the want of such assistance, the daughter died in her confinement. There was no evidence that her mother had any means of paying for the services of the midwife: — Held, that there was, under the circumstances, no legal duty on the part of the mother to call in a midwife, and consequently no such breach of duty as to render her liable to be convicted of the man- slapghter of her daughter. R. v. Shepherd, 31 Law J. Rep. (n.s.) M.C. 102 ; 1 L. & C. 147. MANSLAUGHTER— MARKET. 369 Servant under Omtrol of Master. If a mistress culpably neglect to supply proper food and lodging to her servant, at a time when the servant is reduced to such an enfeebled state of body or mind as to be helpless and unable to take care of herself, or is so under the dominion and restraint of the mistress as to be unable to withdraw herself from her control, and the death of the servant be caused and accelerated by such neglect, the mistress is liable to be convicted of manslaughter. R. v. Smith, 34 Law J. Rep. (n.s.) M.C. 153 ; 1 L. & C. 607. Negligemx as regwrds Vicious Horie. If a commoner turn out on a common, across which there are public footpaths, a horse which he knows to be vicious and dangerous, and the horse kick and kill a child, the commoner is liable to be convicted of manslaughter, even though the child has strayed on to the common a little way off the path. B. V. Dant, 34 Law J. Rep. (n.s.) M.C. 119; 1 L. & C. 567. MARGINAL LETTER OP CREDIT. The indorsee of a marginal letter of credit not being, on the face of it, a document of credit, is not bound, in the absence of notice, to inquire whether the same is being used for the purposes for which the credit was issued. Maitland v. the Chartered Mercantile B