i 'tfX ^^«1P1 \ 1 1 1 ^ fJoi" (jJorupU IGatu ^rl^nnl IGtbtaty Digitized by Microsoft® Cornell University Library KD 626.N34 An expos tion of English aw by English 3 1924 021 672 708 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® EXPOSITION OF ENGLISH LAW BY ENGLISH JUDGES, COMPILED FOE THE USE OF LAYMAN AND LAWYER FEOM THE MOST RECENT DECISIONS (1886-1891) BY JOHN ALEXANDEK NEALE, D.C.L. [LONDON : WILLIAM CLOWES AND SONS, Limited, 27, FLEET STREET. 1892. Digitit^rt^MmtusM® taw has teen stndied, in general, rather as an art than a scienoe, with more solicitude to know its nUes and distinot.ioni than to perceive their application to that for which all roles of law ought to have been established, the maintenance of public and private rights. Nor is there any reading more jejune and unprofitable to a philosophical mind than that of our ancient law books. Later times have introduced other inconveniences, till the vast extent and multipUoity of our laws have become a practical evil of serious importance, and an evil which, between the timidity of the legislature on the one hand, and the selfish views of practitioners on the other, is likely to reach, in no long period, an intolerable excess. Deterred by an interested clamour against innovation from abrogating what is useless, simplifying what is complex, or determining what is doubtful, and always more inclined to stave off an immediate difficulty by some patchwork scheme of modifications and suspensions than to consult for posterity in the comprehensive spirit of legal philo- sophy, we accumulate statute upon statute, and precedent upon precedent, till no industry can aocLuire, nor any intellect digest, the mass of learning that grows upon the panting student ; and our jurisprudence seems not unlikely to be simplified in the worst and least honourable manner, a tacit agreement of ignorance among its professors. Much indeed has already gone into desuetude within the last century, and is known only as an occult science by a small number of adepts. We are thus gradually approaching the crisis of a necessary reformation, when our laws, like those of Borne, must be cast into the crucible. — Hallam's Middle Ages, Vol. n., Chap. viii. Digitized by Microsoft® PEEFACE. It were perhaps unnecessary to say of this work that it is not of one's own making, that it is but a garnering of the fruit of other men's labours ; still it is but just to acknowledge at the outset one's manifest obligation and indebtedness to others. The science of law is in mundane matters the chief and supreme science, aflPording to the intellect the highest form of exercise in that sphere. Law regulates men's relations with their feUow-men to such a degree that ignorance of it were a foEy, if such ignorance can be avoided. Every man is presumed to know the law, a necessary though often . a very inconvenient presumption. No man however knows the law, a fact equally inconvenient, though not equally necessary. This work has been undertaken in the belief that it is a comparatively easy thing for a man either to know the law or to have ready to his hand the means by which he may at once get to know it. \ English law is the creature, the offspring, the chUd of the English people themselves ; and this is the reason why in their heart, and in spite of aU its imperfections, they love, honour and obey it. All law is divisible into either common — that is, customary law — equity, or statute law; which three divisions are ulti- mately resolvable into common law alorile. For equity is but a refining of common law, by which, so to speak, the ore is extracted from the dross and the dead letter is made to yield to the true and perfect spirit of it : and statute law Digitized by Microsoft® a 2 IV PEBPACE. also is, in truth, only a formal declaration of parts of the customary law, whose existence has either been well known in the long past or has come to be recognised in the nearer present. It is true that, besides what has been mentioned, there has been incorporated into and made a part of the customary law some small portions of the laws of other places; but this is of limited extent and is perhaps the least satisfactory portion of the whole body of English law. The method pursued in this work has been to take the most modern reported decisions and to extract from them the authoritative statements of Our judges on various points of law, as they arise, so that the reader may have before him, not an imperfect commentary upon the law, but the law itself: and so by degrees to place in the English reader's hands a Complete, concise and intelligible digest of the law of his own country, saving him from recourse to musty storehouses and enabling him to draw for himself as out of a well pure and undefiled. In each case the name of the judge or judges has been appended, so that it may be seen whether the statements are those of a judge of first instance, or of a Court of ultimate appeal and therefore of binding force until Parliament may otherwise decree. This has been done also on the principle of " honour to him to whom honour is due " and "ferat qui meruit palmam." For as the responsibihty of expounding law in all its clearness and fulness is a heavy one, so is the honour and credit of it very great also. This collection of wise saws and modern instances is but an instalment of what, if it meets with a favourable reception and the reader be not too much cloyed with fat meat, will, it is hoped, in due course follow. It covers a period of five years only ; but every year wiU tend towards the completion of a work, so far as a work of the kind can ever be completed, ijntil the volume contains well-nigh all that can be said upon Digitized by Microsoft® PEEPACE. V any matter of law whatsoever, turning the accomplishment of many ages into an hour-glass. It is believed that this work will be a means of clearly setting forth, not only the perfections, but also the defects and imperfections of our law ; and that it will aid in the remedying of such defects and imperfections. The contents have been arranged alphabetically with a view to easy reference : and it has been thought desirable to mention in their place those Acts of Parliament which have been passed during the period the work covers and which are of public interest, importance and utility. Indeed no such Digest would be compl'ete which omitted to mention Statutes and left the reader without information as to the sources from which to obtain the most authoritative statements of law on a great variety of subjects. To conclude with a word to the wise. It is a great and good thing to have knowledge of the laws of one's country : but to have such knowledge is not necessarily to be a lawyer : and the man who thinks otherwise has been known to repent of this particular error. Thus far, with rottgh and all unsteady pen, Ov/r tending author hath pursued the story. In little room confining mighty men, Mangling by starts the full course of their glory. J. A. N. London, Jamiary, 1892, Digitized by Microsoft® Digitized by Microsoft® CONTENTS. NAMES OF JUDGES, ATTOBITETS-GENERAL, AND SOLICITORS-GENERAL LIST OP ABBREVIATIONS TABLE SHEWING THE YOLUMES OF THE LAW REPORTS BELONGING TO EACH COURT IN BACH TEAR FROM 1886 to I89I INCLUSIVE, . . . TABLE OF CASES TABLE OP TITLES AND SUB-TITLES xxvu EXPOSITION OF ENGLISH LAW 1 to 224 Digitized by Microsoft® Digitized by Microsoft® { i^ ) NAMES OF JUDGES, ATTOENEYS-GBNEKAL, SOLICITOBS-GBNBBAL, AND RAILWAY COMMISSIONEBS. 1886-1891. The Right Hon. and Most Eev. Aechbishop op Oantekbtirt. The Right Hon. Lobd Hbeschell, \ ^ „ The Right Hon. Loed Halsbuey, / -^o™ Chancellors. The Right Hon. The Eabl of Selboene. The Righ Hon. Loed Ooleeidgb, The Eight Hon. Loed Eshee, The Right Hon. The Right Hon. The Right Hon. The Right Hon. The Right Hon. The Right Hon. Loed Blackbtten, Loed "Watson, LoBD Fitzoeeald, Loed Maonaghten, Loed Moeeis, Loed Hannen, ( Lord Chief Justice of \ England. Master of the Bolls. Lords of Appeal m Ordinary. The Right Hon. Loed Beamwell. The Right Hon. Loed Field. The Right Hon. Loed Ashbtjene. The Right Hon. SiE Baenes Peacock, The Right Hon. Sie Montague Edwaed Smith, The Right Hon. Loed Hobhotjse, The Right Hon. Sie Richaed Couch, Sie Henet Cotton, Sie Nathaniel Lindlet, Sie Chaeles Stngb Cheistophee The Right Hon. The Right Hon. The Right Hon. BOWEN, The Right Hon. Sie Edwaed Fey, The Right Hon. Sie Henet Charles Lopes, The Right Hon. Sie Edwaed Ebenbzee Kay, The Loed High Chancelloe (Peesident), The Mastbe of the Rolls, The Right Hon. Sie James Bacon (Yicb -Chan- celloe), The Hon. Sie Edwaed Ebbnezee Kay, The Hon. Sie Joseph William Chitty, The Hon. Sie John Pearson, The Hon. Sir Ford North, The Hon. Sie Jambs Stieling, The Hon. Sie Aethue Kekewich, The Hon. Sir Robert Eombr, JudAcial Committee of the Privy Council. Lords Justices. Judges of the Chancery Division of the High Court of Justice. Digitized by Microsoft® NAMES OP JUDGES. The Lord Chief Justice of England (Pbesi- "j dent), The Hon. Sib William Egbert Grove, The Hon. George Denman, The Hon. Sir Charles Edward Pollock, The Hon. Sir William Ventris Field, The Hon. Sir John Walter Hitddleston, The Hon. Sir Henry Manistt, The Hon. Sir Henry Hawkins, The Hon. Sir James Pitzjames Stephen, The Hon. Sir James Charles Mathew, The Hon. Sir Lewis William Gate, The Hon. Sir John Charles Day, The Hon. Sir Archibald Levin Smith, The Hon. Sir Alfred Wills, The Hon. Sir William Grantham, The Hon. Sir Arthur Charles, The Hon. Sir Roland Lomax Vattghan Williams, The Hon. Sir John Oompton Lawrance, The Hon. Sir Robert Samuel Wright, The Hon. Sir Richard Henn Collins, Judges of the Queen's Bench Division of the High Cov/rt of Justice. The Right Hon. Sir James Hannen (President), The Right Hon. Sir Charles Parker Butt (President), The Hon. Sir Francis Henry Jeune, Judges of the P. D. and A. Division. The Right Hon. Lord Penzance, The Hon. Sir Lewis William Cave, Sir Charles Russell, Sir Richard Evebard Webster, Sir Horace Davey, Sir Edward Clarke, The Right Hon. Sir Frederick Peel, William Philip Price, Dean of Arches. {Chief Judge in Banh- rv/ptcy. \ Attorneys-General. \ Solicitors-General. } Railway and Canal Com/missioners. Digitized by Microsoft® ( xi ) In this WoBK the following abbreviations are used: — indicates i HOUSE OP LOEDS (ENGLISH, IbISH, SCOTCH AND \ Divorce Appeals), and Privt CocBCtt, App. Cas. [1891] A. C. Ch. D. [1891] Ch. Q.B.]). [1891] Q. B. P. D. [1891] P. Chancbet Division. Queen's Bench Division. Probate, Divorce and ADMiBALTy Division Digitized by Microsoft® ( xii ) TABLE SHEWING THE VOLUMES OF THE LA.W EEPOETS BELONGING TO EACH CoURT IN EACH YeAB, PKOM 1886 TO 1891. Tear. House of Lords (Englisli, Irish Scotch, and Bivoroe Appeals), and Privy Conncil. Chancery Division, Bankruptcy and Appeals there&om. Queen's Bench Division, Bank- ruptcy and Appeals therefrom, and Crown Cases Beserved. Frohate Division, Probate, Divorce, Addiiralty, and EcclesiaBtical Courts and Appeals therefrom. 1886 1887 1888 1889 1890 1891 11 App. Cas. 12 „ 13 „ 14 „ 15 „ [1891] a: 0. 31, 32 & 33 Ch. D. 34, 35 & 36 „ 37, 38 & 39 „ 40, 41 & 42 „ 43, 44 & 45 „ [1891]l,2&3Ch. 16 & 17 Q. B. D. 18 & 19 „ 20 & 21 „ 22 & 23 „ 24 & 25 [1891] 1 & 2 Q. B. 11 P. D. 12 „ 13 „ 14 „ 15 „ [1891] P. Digitized by Microsoft® ( xiii ) ' TABLE OF CASES. Name of Case. Keference to BepoTts. !■} A. A.'s Divorce Bill .. A. B., In the Matter of .. .; ;. Abrath i>. North Eastern Eailway Company ..' Adam Eyton, Limited, In re. Ex parte.Charlesworth Agency Company V. Short AUcard v. Skinner Amon «. Bobbett .. Anderton & Milner's Contract, In re Andrews ■!;.' M'Guffog Anglo- African Steamship Company, In re "AnnotLyle,"The .. Antis, In re : — Chetwynd v. Morgan; Morgan Chetwynd "Argentine," The Attorney-General v. Emerson -— — V. Marquis of Aylesbury Avery's Patent, In re Aylesford Peerage, The .. B. Bacon's Will, In re. Camp «, Cos Badcock v. Sunt .. Badeley v. Consolidated Bank Badische Anilin imd Soda Pabrik v. Levinstein Baird v. Wells Baker, In re. Nichols u. Baker.. Bank of New South Wales v. O'Connor .. Barker, In re. Ex parte Constable Barnard, In re. Edwards v. Barnard ., Barrett, In re. Whi taker «. Barrett Barrow Hematite Steel Company, In re Barton v. London and North Western Eailway Company Bass «. Gregory .. Bateman ■!>. Poplar District Board of Works Batten, In re. Ex parte Milne .. ■ — - r. Gedye .. Baynton v. Morgan Beck V. Pierce Beddington k Attlee 12 App. Cas. 367 11- P. D. 58 11 App. Cats. 250 36 Ch. D. 305 13 App. Cas. 798 36 Ch. D. 182 22 Q. B. D. 543 45 Ch. D. 476 11 App. Cas. 324 32 Ch. D. 351 11 P, D. 116 31Ch.D. 605 13 P. D. 200 24 Q. B. D; 56 12App. Cas. 672 36 Ch. D.-317 11 App. Cas. 6 31 Ch. D. 463 . 22'Q. B. D. 148 . 38 Ch. D. 248 . 12 App. Cas. 711 44 Ch. D. 670 . 44 Ch. D. 272 . 14 App. Cas. 282 25 Q. B. D. 293 . 32 Ch. D. 450 , 43 Ch. D. 73 . 39Ch. D. 591 . 24Q.B.D.87 . 25 Q. B. D. 483 . 83 Ch. D. 381 . 22 Q. B. D. 692 . 41 Ch. D. 507 . 21 Q. B. D. 105 22 Q. B. D. 79 23 Q. B. D. 321 . 35 Ch. D. 329 76 79 131 47 127 211 62 122 31 183 10 184 191 62 164 153 120 91 117 152 153 35 90 140 17 21 4 44 39 7 149 72 84 115 (2) 5,199 8 Digitized by Microsoft® XIV TABLE OF CASES. Name of Case. Beggv. Begg Bellamy V. Debenliam " Bemina," The , Bethel «. Clark Bethell, In re. Bethell v. Hilyard Bhugwandass v. Netherlands Lidia Sea and Fire Insur-I ance Company of Bata via .. .. .. .. Taylor f Digitized by Microsoft® :■} '1 42 Ch. D. 296 16 Q. B. D. 5 15. P. D. 34 32 Ch. D. 152 33 Oh. D. 29 .. 12 App. Cas.338.. 19 Q. B. D. 232 .. 37 Ch. D. 36 41 Ch. D. 532 .. 18 Q. B. D. 10 .. 17 Q. B. D. 97 .. 40 Ch. D. 503 ., 36 Ch. D. 436 .. 32 Ch. D. 559 .. 33 Ch. D. 83 .. UP. D. 5 .. .. 31 Ch. D. 473 .. 22 Q. B. r>. 740 .. 35 Ch. D. 370; 38' Ch. D. 530 .., 16Q.B.D. 67 .. 15 App.Cas.442.. 41 Ch. D. 422 .. 44Ch. D. 520 .. 22 Q. B. D. 450 .. 21Q. B. D. 181 .. 25 Q. B. D. 120 .. 25 Q. B. D. 75 .. 25 Q. B. D. 266 .. 32 Ch. D. 232 .. 15 App.Cas.278.. 19 Q. B. D. 416; 21 Q. B. D. 57; 14 App. Cas. 510, 43Ch.D. 105 .. 36 Ch. D. 529 .. 13 App. Cas. 134.. 23 Q. B. D. 589 .. 11 App. Cas. 570.. 40 Ch. D. 553 .. 22 Q. B. D. 321 .. 38 Ch. D. 71 .. 45 Ch. D. 46 -. 13 P. D. 136; 14» P. D. 11 .. j 23 Q. B. D. 457 34 Oh. D. 681 34 Ch. D. 139 31 Ch. D. 675 31, Ch. D. 38 122 196 76 156 173 60 56 183 220 12 114 60 104 79 62 181 85,86 135 33 9 189 162 165 102 27 94 15 3 184 36, 53, 77, 103 94 19 218 37 2,164 4,93 102 148 103, 184 106 196 202 139 63 XVI TABLE OF CASES, Name of Case. Cox ?;. Hakes Crawford w. Crawford Crawsiiay, In re. Crawshay v. Crawshay Crown Bank, In re. In re O'Malley Culleme v. London and Suburban General Permanenfl Building Society .. .. .. .. ../ Curtis V. Kesteven County Council — '■ — v. Stovin .. Curwen *. Milburn .. ,. Beference to Beports. D. Dadswell u. Jacobs Daintree and Butcher «. Fasulo .. Dale & Plate, Limited, In re Darley Main Colliery Company v. Mitobell Davies, In re Davies, In re. Issard u. Lambert v. Davies .. w, Shepstone ■y. Starr Dawes, Ex parte. In re Moon .. Dawson, In re. Johnston v. Hill „ .. Day V. MoLea Dean, In re. Cooper-Dean v. Stevens ., Decroix Verley et Cie w. Meyer .. De Francesco v. Bamum .. .. ,, " De Mora u. Concha De Ros' Trust, In re. Haidwicke w. Wilmot '.'. .. Denaby Main Colliery Company v. Manchester, Sheffield) and Lincolnshire EaU way Company .. .. .. f Derry v. Peek .. .. .. „ " Detmold, In re. Detmold v. Detmold .'.' .. ', Dewhirst's Trusts, In re ". \ Dickson V. Great Northern Railway Company "' Dillon, In re. Duffin «. Duffin ., .. .* \ Dod, Longstaffe & Co., In re. Ex parte Lamond '. Doering v. Doering Draycott u. Harrison .. „ " Dreyfus v. Peruvian Guano Company .. „ \ Dry Docks, Corporation of London, In re ].' Duff s Executors' Case E. East and West India Dock Company, In re ' — V, Kirk and Ean-1 dall Easton v. London Joint Stock Bank .. Ebs worth & Tidy's Contract, In re " " " "Ebor,"The .. .. .. \ Eden «. Ridsdale's Railway Lamp and Lighting Companv Edison & Swan Electric Light Company^. Woodhouse Com"' ^""^^ '■'"^ ^P'"' ^°^^ Miningi ISApp. Cas.518../ 11 P. D. 157 43 Ch, D. 625 , 44 Ch. D. 651 . 25 Q. B. D. 488 . 51, 96, 110 75 156 55 28 45 Ch. D. 509 ., 129 22Q. B. D. 519 .. 65 42Ch, D.431 .. 199 34 Ch. D. 282 .. 106, 155 13 P. D. 103 222 43 Ch. D. 258 .. 47 14 App. Cas. 132 .. 128 21 Q. B. D. 239 .. 55 44 Ch. D. 260 .. 69 36Ch. D. 383 ., 177 11 App. Cas. 190.. 123 41 Ch. D. 246 .. 10 17Q. B. D. 286 .. 54 39 Ch. D. 164 .. 34 22 Q. B. D. 610 .. 3 41 Ch. D. 556 .. 221 25 Q. B. D. 347 .. 20 43 Ch. D. 172 .. 103 32 Ch. D. 144 .. 68 31 Ch. D. 88 .. 54 11 App. Cas. HI.. 169 14App.Cas. 339.. 71,86 40 Ch. D. 587 .. 184 33 Ch. D. 419 .. 148 18 Q. B. D. 183 ., 169 44 Ch. D. 83 78 21 Q. B. D. 244 „ 62 42 Ch. D. 206 .. 34 17 Q. B. D. 153 .. 99 42 Ch. D. 76 .. 70 39 Ch. D. 309 ., 45 32 Ch. D. 309 .. 43 44 Ch. D. 67 ., 171 12 App. Cas. 738 11 38 Ch. D. 33 174 42 Ch. D. 50 204, 216 11 P. D. 27 192 23Q.B. D. 372 .. 42 32 Ch. D. 524 .. 153 25 Q. B. D. 198 .. 73 Digitized by Microsoft® TABLE OP CASES. XVll Kame of Case. Ellington v. Clark, Bunnett, & Co. Blphinstone (Lord) v. Monkland Iron and Coal Company Elwes V. Brigg Gas Company Emmens v. Pottle.. Endowed Schools Act, 1869, In re. In re Christ's Hospital.. " England," The Eno V. Donn .. Esdaile v. Assessment Committee of City of London\ Union .. .. .. .. .. .. ../ F. Faloke v. Scottish Imperial Insurance Company Pawcett and Holmes, In re Contract between .. Field w. Hopkins .. Finley, In re. Ex parte Clothworkers Company Pirbajok's Executors «. Humphreys Platau, In re. Ex parte Scotch Whisky Distillers Fleming «. Hislop.. Ford V. Metropolitan and Metropolitan District Railway) Companies .. .. .. .■ .. .. ) Fox, Ex parte. In re Smith Pry ?;. Moore Fulham Union, Assessment Committee of v. Wells Furber v. Cobb . . G. Grarcia v. Garcia .. Garfltt V. Allen. Allen «. Longstaffe .. Gramett, In re. Gandy v. Macaulay General Horticultural Company, In re. Ex partej Whitehouse .. .. .. •• •• ■•/ George, In re. Francis «. Bruce Gilchrist, Ex parte. In re Armstrong Glanvil, In re. BUis w. Johnson Glasgow & South Western Eailway Company v. Mac-I kinnon .. .. .. .. •• •• ■•/ Glasier w. EoUs Glascock «. Balls .. Gorton, In re. Dowse u. Gorton Goslings & Sharps w. Blake Grand Trunk Railway Company of Canada v. Jennings Great Western Railway Company v. Bunch . . . V. McCarthy Green «. Paterson ., Grieb's Case Griffith V. 'Pound Griffiths V. School Board of Ystradyfodwg H. Haggin v. Comptoir D'Escompte de Paris Hall^ A. W. & Co., In re V. Bromley . . . . Digitized by Microsoft® Reference to Reports, 38 Ch. D. 332 .. 11 App. Cas. 332 33Ch. D. 569 .. 16Q. B. D. 357 .. 9 153 122, 137 37, 125 15 App. Cas. 172 86 12 P. D. 33 15 App. Cas. 262 192 204 19Q. B. D. 440 .. 204 34Ch.D.248 .. 149 42Ch. D. 156 .. 198 44 Ch. D. 530 .. 141 21Q.B. D. 487 .. 18 18Q. B.D. 60 .. 161 22Q. B. D. 86 .. 19 11 App. Cas. 694 9 17 Q. B. D. 19 .. 114, 117 17Q.B. D. 10 .. 52 23Q.B. D. 398 .. 220 20Q. B. D. 751 .. 8 18Q. B. D. 495 .. 25 13 P. D. 217 75 37Ch. D. 50 .. 8 31Ch. D. 9 118 32Ch. D. 515 .. 94 44Ch. D. 631 .. 164 17 Q. B. D. 526 .. 134 31Ch. D. 539 .. 133 11 App. Cas. 386 172 42 Ch. D. 458 .. 45 24Q. B. D. 15 .. 164 40Ch.D. 540 .. 5 23Q.B. D..329 .. 20 13 App. Cas. 803 129 13 App. Cas. 37 .. 170 12 App. Cas. 228 168 32 Ch. D. 106 .. 219 45 Ch. D. 606 .. 182 45Ch. D. 553 .. 139 24Q. B.D. 308 .. 203 23Q. B.D. 522 .. 183 37Ch. D. 721 .. 44 35 Ch. D. 655 .. 59 XVIU TABLE OP CASES. Name of Case. Halliday v. Phillips Hallows V. Lloyd .. Hamilton, Eraser & Co. v. Pandorf & Co. Hancock •». Smith Dicks V. Hare ' Grange v. Sturday Ex parte Hecquard Hargreaves, In re. Harris v. Brisco V. De Pinna V. Knight . Harrison, In re Haseldine, In re. Heap V. Hartley Hecquard, In re. _ Helmore i). Smith (2) Henderson 17. Bank of Australasia ■w. Eothschild .. Henderson Brothers v. Mersey Docks and Harhour Board Henry Pound, Son and Hutchins, In re .. Herbert, In re Hetherington v. Hetherington Hilleary & Taylor, In re .. Hilton «. Tucker .. HoHyn i». Hoblyn Hodgson, In re. Beckett i). Eamsdale . . Hopkins v. Smethwick Local Board of Health .. Home D. Fountain Hotchkys, In re. Preke i;. Calmady .. Howard v. Patent Ivory Manufacturing Company. In re Patent Ivory Manufacturing Company Howarth i). Howarth Hughes u. Lloyd .. Huish, In re. Bradshaw v. Huish .. .. ' Hulkes, lore. Powell v. Hulkes .. .. Huxley v. West London Extension Eailway Company '. i James v. James - V. Kerr Jay V. Eohinson . . Jodrell, In re. Jodrell v. Scale '. Johnson v. Lindsay Johnstone 11. Marks V. Milling Jones, In re. Calver v. Laxton . , In re. Ex parte Jones . Jupp, In re. Jupp v. Buckwell . Kearley «. Thomson Kellard v. Rooke . . . . [ Kenrick & Co. v. Lawrence & Co. Kent's Case Keyse v. Keyse . . Kiddle v. Lovett .. K. Reference to Reports. Page. 23Q. B. D. 48 .. 85 39 Ch. D. 691 .. 146 12 App.Cas.526.. 194 41Ch. D.461 .. 89 44Ch. D. 243 .. 4 17Q. B. D. 513 .. 131 33Ch. D. 250 .. 104 15 P. D. 179 .. 223 33Ch. D. 52 .. 174 31Ch. D. 518 .. 221 42Ch. D. 468 .. 126 24Q. B. D. 76 .. 18 35Ch. D. 456 .. 135 45 Ch. D. 346 .. 30 33Ch. D. 469 .. 70 19 Q. B. D. 129 .. 187 42Ch. D. 411 .. 46 34Ch. D. 505 .. 196 12P. D. 114 74 36Ch. D. 267 .. 194 39Ch. D. 673 .. 155 41Ch. D. 200 .. 92 31Ch. D. 184 .. 152 24Q. B. D. 714 .. 129 23Q. B. D. 270 .. 130 32Cli. D. 416 .. 202 38Ch. D. 162 .. 39 11 P. D. 99 13 22Q. B. D. 162 .. 80 43 Ch. D. 264 .. 223 33 Ch. D. 558 .. 208 14 App. Cas. 32 .. 62 22 Q. B. D. 669 40 Ch. D. 456 25 Q. B. D. 467 44 Ch. D. 606 23 Q. B. D. 513 19 Q. B. D. 511 16 Q. B. D. 474 31 Ch. D. 444 24 Q. B. D. 594 39 Ch. D. 154 24 Q. B. D. 745 19 Q. B. D. 588 25 Q. B. D. 103 39 Ch. D. 269 11 P. D. 101 16 Q. B. D. 611 11, 139 196 30 99, 187 221 144 104 117, 176 4 17 134 101 86 59,60 43 75 135 Digitized by Microsoft® TABLE OP CASES. XIX Name of Case. :1 Kilford V. Blaney . . King V. Dickeson .. Kinnaird «.' Trollope Knight V. Coales . . La Banque Jacques-Cartier v. La Banque d'Bpargae de la Cit6 et du District de Montreal Laidlay v. The Lord Advocate , , Lamb, In re Lambert's Estate, In re. Stanton v. Lainbert ., Lea V. Pacey ., .. ,, .. ., Leader w. Duffey .. Leduc V. Ward .. .. ,, ,, ., Lee V. Abdy .. .. ,, Leeds Estate, Building and Investment Company v. Shepherd Leeson v. Greneral Council of Medical Education and\ Eegistration .. .. ,. .. .. ../ Lever «. Goodwin.. .. ,. Lewis u. Lewis Lhoneux, Limon & Co. v. Hong. Kong and Shanghai Banking Corporation . . Lightbound w. Higher Bebington. Local Board ., Little, In re. Harrison v. Harrison Liverpool Household Stores Association v. Smith London Steamship Owners' Assopiation Insurance Com- pany V. Grampian Steamship Company London, Tilbury and Southend Railway Company, In re, and Trustees of Gower's Walk Schools. "Longford," The Lord Provost and Magistrates of Glasgow v. Parie Loring u. Davies .. Loughborough Highway Board u, Curzon Lound 1). Grimwade .. .. ... Lowden «. Blakey .. .. .. Lowther I?. Heaver Luddy's Trustee u. Peard .. ... Lumb w. Teal & Co. .. .. -.. Lumley v. Brooks . . .. .,.* Lydney and Wigpool Iron Ore Company v. Bird Lyell V. Kennedy . . . . . . . . Lynch v. Commissioners of Sewers of the City of London M. Macdougall «. Knight Mackenzie, In re .. .. •; 1/. Childers Magnus v. Queensland National Bank .. „ . , , ^, . , Digitized by Microsoft'' Mamland, r. Upjohn .. ^.. ..-' Reference to Reports. '1 31 Ch. D. 61 40 Ch. D. 599 39 Ch. D. 642 Ch. D. 615 19 Q. B. D. 300 ; 42) Page. 222 178 142, 202 173 13 App. Cas. 118 15 App. Cas. 483 23Q. B. D. 6 .. 39 Ch. D. 633 .. 17.Q. B. D. 146 .. 13 App. Cas. 303 20Q. B. D. 479 .. 17Q. B. n. 312 .. 36 Ch. D. 797 .. 43Ch. D. 383 .. 36 Oh. D. 5 45Ch. D. 281 .. 33Ch. D. 446 .. 16QB. D. 579 .. 40Ch. D. 424 .. 37Ch. D. 181 .. 24Q. B. D. 32 .. 24Q. B. D. 44 .. 14P. D. 37 13 App. Cas. 669 32 Ch. D. 631 .. 17Q. B. D. 349 .. 39Ch. D..605 .. 23 Q. B. D. 334 .. 41 Ch. D. 248 .. 33Ch. D. 520 .. 22Q. B. D. 680 .. 41 Ch. D. 323 .. 33Ch. D. 94 .. 14 App. Cas. 448 32Ch. D. 89 14 App. Cas. 200 ;\ 25Q. B. D. 7 ../ 17Q. B. D. 116 .. 43Ch. D. 275 .. 36 Ch. D. 32; 37) Ch. D. 478 ..) 41 Ch. n. 126 .. h 2 173 164 62 134 52 157 21 48 41 111 104 65 224 52,72 133 124 107 113 (2) 187 137 158 53 58 74 28 197 65 62 44 88, 128 112 125 (2), 177 52 178 142, 148 139 XX TABLE OP CASES. Name of Case. Manchester, Sheffield and Lincohishire Eailway Com-1 pany i;. North Central Wagon Company .. ../ Marrett, In re. Chalmers ?;. Wingfield . . Marriott V. Chamberlain .. Martin (a Lunatic), In re Martin t;. Spicer .. .. .. .. .. ..i Mathews «. Munster May, In re. Crawford v. May .. Mayor, &c., Bury v. Lancashire and Yorkshire Eailway"! Company .. .. .. .. .. ../ of Durham v. Fowler M'Cabe 1). Bank of Ireland McGrough V. Lancaster Burial Board McGregor v. McGregor .. McMuUen i;. Wadsworth.. Medland, In re. Eland u. Medland Meek «;. Wendt ., Melliss «. Shirley Local Board .. Mellor V. Daintree Membery v. Great Western Eailway Company . . Mercer, Ex parte. In re Wise .. Merivale v. Carson Mersey Docks & Harbour Board v. Henderson Brothers Metcalfe i". Metcalfe Metropolitan Eailway «. Wright Midland Eailway Company v. Miles V. Eobinson Miles V. New Zealand Alford Estate Company Millar «. Harper .. Mills, In re. Mills u. Mills '. W.Armstrong. The"Bemina" .. —^- v. Charles worth Missouri Steamship Company, In re Mogul Steamship Company v. McGregor, Gow & Co. .. | Montagu v. Earl of Sandwich "Moorcock," The Moore v. Moore .. Moore, In re. Trafford v. Maconochie Morgan, In je. Owen v. Morgan Morris u. Edwards Mutual Life Assurance Society v.. Langley Mutual Provident Land Investing and Building Society) i). Maomillan .. .. .. ... °. _| Mytton «. Mytton .. .. " N.. Nanney v, Morgan National Provincial Bank of England v. Games" Neilson t;. Mossend Iron Company Netherseal Colliery Company I). Bourne" .,. Newbigging V. Adam Newlove v. Shrewsbury . . New York Life Insurance Company v. Styles .. Digitized by Microsoft® Eeference to Reports. 13 App. Cas. 560 36 Ch. D. 407 . 17 Q. B. D. 163 . 41 Ch. D. 381 . 32 Ch. D. 595 ; 34 Ch. D. 12 20 Q. B. D. 143 . 45 Ch. D. 499 . 20 Q. B. D. 288 . 22 Q. B. D. 404 . 14 App. Cas. 415 21 Q. B. D. 327 . 21 Q. B. D. 430 . 14 App. Cas. 634 41 Ch. D. 493 . 21 Q. B. D. 129 . 16 Q. B. D. 451 . 33 Ch. D. 206 . 14 App. Cas. 179 17 Q. B. D. 299 . 20 Q. B. D. 283 . 13 App. Cas. 601 43 Ch. D. 639 . 11 App. Cas. 153 33 Ch. D. 647 . 37 Ch. D. 395 . 32 Ch. D. 284 . 38 Ch. D. 112 . 34 Ch. D. 190 . 13 App. Cas. 12 . 25 Q. B. D. 425 . 42Ch. D. 321 . 21 Q. B. D. 550 23 Q. B. D. 613 32 Ch. D. 534 14 P. D. 68 12 P. D: 195 39 Ch. D. 129 35 Ch. D. 500 23 Q, B. D. 289 32 Ch. D. 460 14 App. Cas. 597 11 P. D. 143 .. 37Ch. D. 352 ., 31 Ch. D. 582 ., 11 App. Cas. 308 14 App. Cas. 242 34Ch. D. 593 .. 21Q. B. D. 44 .. 14 App. Cas. 381 '} 24 77 73 64 • 109, 178 65 90 171 162 182 29 100, 198 77 194 162 52 221 145 18 124 194 1 145 168 170 47 151 224 148 26 48 48,49 78 102 75 221 154 73 200 157 111 219 143 151 50 57 23 103 TABLE OF CASES. XXI Name of Case. Mcol V. Nicol Nielsen i;. Wait .. North Central Wagon Company v. Manchester, SheiBeld/ and Lincohishire Railway Company .. North Shore Railway Company v. Pion North ■!;. Stewart .. Northcote v. Owners of the " Henrich Bjom." "HenrichBjom" Northampton (Marquess of) v. Pollock .. Northumberland Avenue Hotel Company, In re Nottingham Patent Brick and Tile Company, v. Butler Nouvion V. Freeman Reference to Reports. Thej 0. Odell v. Cormaok . . Official Receiver, The i;. Tailby .. Oliver •;;. Hunting . . Onslow u. Commissioners of Inland Revenue .. Oppert D. Beaumont Osborne i;. Morgan O'Shea V. O'Shea and ParneU Otway V. Ot way . . Overseers of Manchester v. Guardians of Ormskirk Union Owners of Cargo of the " Kronprinz " v: Owners of the\ ■ "Kronprinz." The "Ardanhu" / Owners of the " Thomas Allen " v. Gow. The " Thomas\ Allen" .. .. .. ../ Oxford Benefit Building and Investment Society, In re P. pain t;. Bought wood Palliser v. Gurney "ParisiaD,"The Park, In re. Cole «. Park Parker, In re. Ex parte Sheppard I;. Blenkhom. Newbould u. Bailward.. Parnell i;. Walter . . Parsons, In. re. Stockley v. Parsons Partridge v. General Council of Medical Education and) Registration of the United Kingdom .. .. ... ) Pearce v. Foster .. Pease V. Pattinaon Pelsall Coal and Iron Company v. London and North) Western Railway Company .. .. .. .. ) Pink V. Fleming .. Pollard V. Photographic Company Pooley's Trustee v. Whetham .. Porrett «. White .. .. Porter's Settlement, In re. Porter v. De Quetteville .. Portuguese Consolidated Copper Mines, Limited, In re Postlethwaite, In re Rickmau. Postlethwaite v. Rick-l man .. .. .. ., •• .• •• ) Praed «. Grraham .. .. .. .. •■ •■ I Pratt u. Inmaim .. .. „.•!,. ,•! ..:• v. J Digitized by Microsoft® 31 Ch. D. 526 16 Q. B. D. 72 32 Ch. D. 295 Ch. D. 205 14 App. Cas. 617 15 App. Cas. 463 11 App. Cas. 281 45 Ch. D. 210 . 33 Ch. D. 21 16 Q. B. D. 784 . 15 App. Cas. 8 . 35- 19 Q. B. D. 226 ., 17 Q. B. D. 88 ., 44Ch. D. 209 ., 25Q. B. D.4e6 ., 18 Q. B. D. 435 .. 13 App. Cas. 235 15 P. D. 63 13 P. D. 150 24Q. B. D. 682 .. 12 App. Cas. 259 12 App. Cas. 121 35 Ch. D. 509 .. 24 Q. B. D. 353 19 Q. B. D. 521 13 P. D. 17 41Ch. D.326 19 Q. B. D. 87 14 App. Cas. 7 24Q.B. D. 444 45 Ch. D. 55 25 Q. B. D. 96 , 17 Q. B. D. 539 . 32 Ch. D. 158 . 23 Q. B. D. 536 . 25 Q. B. D. 397 . 40 Ch. D. 349 . 33 Ch. D. 78 31 Ch. D. 52 45 Ch. D. 189 . 42 Ch. D. 161 . 35 Ch. D. 726 . 24 Q. B. D. 55 . 43 Ch. D. 179 . 187 25,27 179 181, 195 50, 194 139 40 215 93 20 22 198 10 200 117 9 76 156 73 181 42 6 134 37 65 57 63 109 55 110 135 34 168 108 59 182, 197 6 157 43 ,74 145 182 XXII TABLE OF CASES. Name of Case. Presland v- Bingham Price & Co. v. The Al Ships' Small Damage Association,'! Limited . . . . . . . . „ . . . . / Price V. Manning . . Proudfoot V. Hart . . Pryor v. Pryor - E. - Radnor's (Earl of) Will Trusts, In re . . Eae V. Heek ■ .: EaUton v. Wood . . Railway Time Tables Publishing Company, In re. Ex parte Sandys Bead ?;. Bishop of Lincoln V. Brown Reg. ■!). Adams 11. Ashwell .. V. Barnardo . . V. Bishop of London ■«. Burgess .. 1). Ghristopherson . . w. Clarence .. V. Commissioners of Income Tax . . V. Commissioners for Special Purposes of the Income Tax V. Parrant V. Gibson u. Gordon V. Judge of City of London Court and Owners o SS. "Michigan" - — V. Lambourn Valley Railway Company !'. V. Latimer . . ■v. Mayor, &c., of Bangor .. V. Paul — — V. Railway Commissioners and Distington Iron) Company, Limited .. .. .. __ f V. Registrar of Joint Stock Companies 1). Stroulger .. u. Tolson Reinhardt ■!;. Mentasti .. ., \\ RendaU u. Blair .. .. \\ " Rhodes v. Swithenbank . . .' [[ Richards, In re. Humber v. Richards Richardson v. Harrison .. Riddell In re. Ex parte Earl of Strathmore Pidge, In re. Hellard v. Moody . Riding ?;. Hawkins Roberts, In re '") Robinson ?;,, Jenkins V. Kilvert Rodocanaohi v. Milbum . . Rogers & Co. V. Lambert & Co. '.'. Roper, In re. Roper v. Doncaster Reference to Reports. 41 Ch. D. 268 22 Q. B. D. 584 42 Ch. D. 374 25 Q. B. D. 50 12 P. D. 166 45 Ch. D. 402 . 14 App. Cas. 568 15 App. Cas. 367 42 Ch. D. 113 14 P. 22 Q. 22 Q. 16 Q. 23 Q. 23- Q. 24 16 Q, 16 Q. 22 Q. 22 Q. D. 88 B. D. 132 B. D. 66 B. D. 213 B. D. 315 B. D. 429 Q. B. D. 224 B. D. 144 B. D. 13 B. D. 27 B. D. 307 ;l 21 Q. B. D. 313 . 19 Q. B. D. 60 . 18 Q. B. D. 537 . 23 Q. B. D. 360 . 25 Q. B. D. 342 . 22 Q. B. D. 466 . 17 Q. B. D. 361 . 18 Q. B. D. 361 . 25 Q. B. D. 207 . 22 Q. B. D. 642 . 21 Q. B. D. 136 . 17 Q. B. D. 330 . 23 Q. B. D. 169 . 42 Cb. D. 686 " 45 Ch. D. 152 . 22 Q. B. D. 577 . 45 Ch. D. 589 . 16 Q. B. D. Ill . 20 Q. B. D. 518 . 31 Ch. D. 507 . 14. App. Cas. 56 . 43 Ch. D. 54 . 24 Q. B. D. 279 . 41 Ch. D. 97 18 Q. B. D. 75 . 24 Q. B, D. 576 . 39 Ch. D. 487 . Page. 127 107 224 115 76 97 206 51 3,45 • 80 136 67 67 96 53, 81, 82, 132 68 203 66,67 31,53 102 74 68 67 6 45, 131 66 143 206 169 131 66 67 105 32 146 86 72, 175, 186 ■ 92 220 8 197 108 116 188 112 133 Digitized by Microsoft® TABLE OP OASES. XXlll Name of Case. il Boss V. Army and Navy Hotel Company V. Buxton Eowe u. School Board for London Royal Bristol Permanent Building Society v. Bomash . Boyal Mail Steam Packet Company v. English Bank oi Rio de Janeiro .. Russell V. Cambefort . . . . . . ; ; Rust V. Victoria Graving Dock Company and London^ and St. Katherine Dock Company Ruthin and Oerrig-y-Druidion Railway Act, In re s. Sailing Ship " Garston " Company v. Hickie, Borman\ &Co .. .-. .. ../ St. Stephen, Coleman Street, In re. In' re St. Mary the"! Virgin, Aldermanbury .. .. „ .. ../ Salford (Mayor, &c., of Borough of) v. Lever . . Salmon, I^ re. Priest v. Uppleby ■!). Duncombe .. .; Sargent, In re Scott t;. Morley .. .. .. ;. V. Pape V. Sebright .. Searle v. Cooke Seath V. Moore Seaton V. Seaton .. Secretary of State for Home Department and Fletcher Seroka «. Kattenburg Seton V. Lafone Sharpe V. Wakefield .. ., .. .^ Sheffield (Earl of) v. London Joint Stock Bank Shepherd v. Hirsch, Pritchard & Co. Shrapnel «. Laing .. Sibun V. Pearce Simmonds, Ex parte. In re Carnac Skegness and St. Leonard's Tramways Company, In re.^l Ex parte Hanly .. .. .. .. ../ Slatterly u. Naylor Smart «. Tranter .. Smith, In re. Henderson-Roe v. Hitchins & Service and Nelson & Sons, In re V. Churchwardens, &c., of Birmingham .. Solicitor, A, In re . . .. . .. Spackman, In re. Ex parte Foley Spedding «. Fitzpatrick .. .. .. Spicer v. Martin . . Standing f. Bowling Stanford, Ex parte. In re Barber Staniar u. Evans .. Starr-Bowkett Building Society and Sibun's Contract .. Steward v. North Metropolitan Tramways Company .. Story «. Story and O'Connor Strang, Steel & Co. v. A. Scott & Co Stumm V. Dixon .. .. Digitized by Miomsoft® 34 Ch. D. 49 42 Ch. D. 200 36 Ch. D. 619 35 Oh. D. 397 19 Q. B. D. 373 23 Q. B. D. 528 36 Oh. D. 135 32 Ch. D. 442 44 195 198 213 192 183 70 168 18Q.B.D. 21 .. 189 39Ch. D. 498 .. 33 25Q. B.D. 374 .. 160 42Ch. D. 363 .. 203, 209 11 App. Cas. 634 50 15P. D. 169 79 20 Q. B. D. 125 .. 134 31Ch. D. 569 .. 127 12P. D. 23 133 43 Ch. D. 530 .. 58, 175 11 App. Cas. 374 155 13 App. Cas. 71 .. 103 18 Q. B. D. 344 ,. 10 17 Q. B. D. 179 .. 99 19Q. B. D. 70 .. 87 21Q. B. D. 79 .. 105 13 App. Cas. 342 14 45Ch. D. 235 .. 151 20 Q. B. D. 338 .. 64 44 Ch. D. 370 .. 54 16Q. B. D. 312 .. 149 41Ch. D. 215 .. 44 13 App. Cas. 451 148, 199 43Ch. D. 596 .. 133 42 Ch. D. 305 .. 89 25Q. B. D. 552 .. 11 22Q. B. D. 219 .. 156 25Q. B. D. 24 .. 18 24Q. B. D. 738 .. 16 38 Ch. D. 414 .. 97 14 App. Oas. 23 .. 122 31Ch. D. 287 .. 205 17Q. B. D. 270 .. 22 34 Ch. D. 476 .. 206 42 Ch. D. 388 .. 214 16 Q. B. D. 182 .. 8,180 12 P. D. 198 74 14 App. Cas. 606 192 22Q. B. D. 533 .. 63 XXIV TABLE OP CASES. Name of Case. Reference to Reports. Stumore, Weston & Co. v. Breen SufBeld and Watts, In re. Ex parte Brown Svendsen «. Wallace T. Tailby u. Official Receiver Tancred v. Delagoa Bay and Bast Africa Railway Com-I pany / , Arrol & Co. v. Steel Company of Scotland Tamw. Turner " Tasmania," The Terry and White's Contract, In re Thames and Mersey Marine Insurance Company v.\ Hamilton, Fraser ifc Co. ../ Thomas, In re. Thomas v. Howell 1;. Kelly .. 4". Quartermaine .. Thyme v. Shove . . Tilbury jj. Silva .. Timson v. Wilson. Fanshawe v. London and Provin-l cial Dairy Company .. .. .. .. ..J Tod-Heatly V. Benham .. Tomkinson v. South Eastern Railway . . Tomlin v. Luce .. Tomlinson v. Consolidated Credit and Mortgage Cor-\ poration .. .. .. .. .. ..J Tucker ?;. Bennett V. New Brunswick Trading Company of London Union Bank of London v. Kent u. V. Vagliano Brothers v. Governor and Company of Bank of England Valentini v. Canali Vardon's Trusts, In re Vaughan, In re. Vaughan v. Thomas Vernon, Ewens & Co., In re Vestry of St. James' and St. John, Clerkenwell v. Fearv Vickers, Son & Co. ■». Siddell 1 w. Wadsworth, In re. Rhodes v. Sngden .. Wakeiin v. London and South Western Railway Com' pany Walker u. Wilsher Wallis, In re. Ex parte Lickerish Ward V. Lawson . . Ware, In re. Cumberlege v. Cumberlege-Ware' Warminster (Local Board of) and Council of the Countv! of Wilts, In re •' ^ 12 App. Cas. 702 20 Q. B. D. 698 .. 16 Q. B. D. 27 .. 13 App. Cas. 533 23 Q. B. D. 240 ., 15 App. Cas. 136 39Ch. D. 460 .. 13 P. D. 118 32 Ch. D. 31 .. 12 App. Cas. 490 34 Ch. D. 169 .. 13 App. Cas. 512 18 Q. B. D. 685 .. 45 Ch. D. 580 .. 45 Ch. D. 107 .. 38 Ch. D. 77 40 Ch. D. 92 .. 35 Ch. D. 677 .. 43Ch. D. 191 .. 24Q. B. D. 138 .. 38 Ch. D. 17 .. 44 Ch. D. 252 .. 39 Ch. D. 245 116 ;| Digitized by Microsoft® 22 Q. B. D, 23 Q. B. D. 258 24 Q. B. D. 167 , 31 Ch. D. 279 , 33 Ch. D. 192 , 33 Ch. D. 412 . 24 Q. B. D. 710 . 15 App. Cas. 499 34 Ch. D. 158 12 App. Cas. 51 23 Q. B. D. 337 25 Q. B. D. 180 43 Ch. D. 360 45 Ch. D. 276 25 Q. B. D. 459 188 112 175 23 12 56 143 132 214 54, 108 214 22 136 218 158 205 178 172 141 117 183 157 140 14,21 103 85 34 210 137 153 196 144 224 142 195 176, 223 97 TABLE OF CASES. XXV Name of Case. :} Warne & Co. «. Seebohm Watson, In re. Es parte Official Beceiver in Bank ruptcy .. «. Black .. Wayman, In re. Ex parte Official Eeceiver .. WeaJl, In re. Andrews u. Weall Webber, In re. Ex parte Webber Weblin «. Ballard.. .. ' Weed V. Ward Wells, In re. Molony v. Brooke ''Werra,"The Westminster Fire Office v. Glasgow Provident Invest- ment Society .. Westrup V. Great Yarmouth. Steam Carrying Company Whelan «. Palmer Whitby V. Mitchell White «. City of London Brewery Company .. .A White's Trust, In re Whitaker (a person of unsound mind), In re .. Whitley Partners, Limited, In re Whittaker ■;;. Kershaw Wickham, In re. Marony v. Taylor .. Williams v. Colonial Bank. Williams v. London Char-I tered Bank of Australia .. .. .. .. ) V. Smith Willis ?>. Earl Beauchamp Wilson, Sons & Co. v. Owners of Cargo per the\ "Xantho" Wimbledon Local Board v. Croydon Eural Sanitary) Authority .. .. .. .. .. .. } Winchilsea's (Earl of) Policy Trusts, In re Windham v. Bainton Windhill Local Board of Health v. Vint Windsor and Annapolis Railway Company v. The Queenl and the Western Counties Eailway Company .. / Wingrove v. Wingrove .. Wood V. Burgess .. V. Odessa Waterworks Company .. Wood's Trade-mark, In re. Wood v. Lambert & Butler Woodham, In re. Ex parte Conder Woodward ■!;. Goulstone .. Y. Yates, In re. Batcheldor v. Yates Yeadon Local Board and Yeadon Waterworks Com-\ pany, In re .. .. .. •• •■ ••/ Eeference to Reports. ?} 39 Ch. D. 81 25Q.B. D. 37 . 16 Q. B. D. 276 . 24 Q. B. D. 68 . 42 Ch. D. 678 . 24 Q. B. D. 318 . 17 Q. B. D. 124 . 40 Ch. D. 561 . 45 Ch. D. 573 . 12 P. D. 53 13 App. Cas. 715 43 Ch. D. 245 . 39 Ch. D. 655 . 44 Ch. D. 92 39 Ch. D. 563; 42 Ch. D. 243 33 Ch. D. 453 42Cb. D. 127 .. 32 Ch. D. 341 .. 45 Ch. D. 325 .. 35 Ch. D. 282 .. 38Ch. D. 404 .. 22 Q. B. D. 134 .. 11 P. D. 61 12 App. Cas. 509 32 Ch. D. 428 .. 39 Ch. D. 172 .. 21 Q. B. D. 201 .. 45 Ch. D. 363 .. 11 App. Cas. 613 11 P. D. 82 24Q. B. D. 162 .. 42 Ch. D. 636 .. 32 Ch. D. 264 .. 20 Q. B. D. 42 .. 11 App. Cas. 475 38 Ch. D. 128 41 Ch. D. 52 59 24 151 197 207 19 136 174 90 181 106 193 87 154 141 (2) 164 161 90 200 27 126 200 188 104 106 62 165 154 224 204 44 148 186 163 26 12 Digitized by Microsoft® Digitized by Microsoft® ( xxvii ) TABLE TITLES AND SUB-TITLES. Abortive negotiations. Absolute gift. Abuse of process of Cotu-t. Acceptance. Accord and Satisfaction. Account. Accumulation. Acquiescence. Action in rem. Actio Personalis. Ademption. Administration. Administrators. Admiralty. Admiralty Court. Admission. Adulteration. Advertisement. After-acquired Property. Agency. Agent. Agriculture. Air. Allotments Act, 1887. Allotments and Cottage Gardens pensation for Crops Act, 1887. Amendment. Ancient Lights. Annoyance. Annuitants. Appeal. Appointment. Apprenticeskip Deed. Arbitration. Arbitration Act, 1889. Arrestment. Digitized Com- Artizans and Labourers DweUings. Assignee. Assignment. Assignment of Debt. Attachment. Auditor. Author. Authority, Application of. Average. Bailee. Banker. Bankruptcy. Bankruptcy Act, 1890. Bias. Bin of Exchange. BUls of Exchange Act, 1882. Bin of Lading. Bill of Sale. Board of Agriculture Act, 1889. Bonus Dividend. Book Debts. Boundaries, Confusion of. Bovai's Act. Boycotting. Bribes. Brokers. Building Agreement. Building Estate. Building Society. Burial. Bui*ial, Eight of. Canals. Canons. Carrier. by Microsoft® XXVlll TABLE OF TITLES AND SUB-TITLES. Ctaii-man of Meeting. Cbamperty and Maintenance. Charge. Charging Order. Charitable Purposes. Charitable Trust. Charitable Trusts Act, 1853. Charitable Uses. Charity. Charterers. Charter-parties. Chattels. ChUd. Child-bearing. Children, Prevention of Cruelty to, and Protection of Children Act, 1889. Chose in Action. Church. Church Discipline Act. Churchyard. Clay. Clogging the Redemption. Club. Coal Mines Regulation Act, 1887. Cohabitation. Collateral Advantage. Collateral Agreement. Collision. Combination. Comity of Nations. Commission. Commission, Secret. Commission to Examine Witness. Commissioners for Oaths Act, 1889. Commissioners for Oaths Amendment Act, 1890. Common Employment. Common Law. Companies Clauses Act, 1845. Companies (Memorandum of Assooia- tion) Act, 1890. Companies (Winding-up) Act, 1890. Company. Compensation. Compromise. Conditions of Sale. Confidential Information. Conflict of Laws. Confusion of Boundaries. Consideration. Consolidation. Conspiracy. Construction- Act of Parliament. Contract. Deed. Contempt of Court. Contingent Title. Contract. Contract by Crown. Contract by Letters. Contribution. Contributory Negligence. Convent. Copyhold Act, 1887. Copyholds. Copyright. Coroners' Act, 1887. Corporation. Corrupt Practice. Costs. Cottage Gardens. Councils. Counsel's Authority. Counter-claim. County Council. County Councils — Their Constitution and Powers. County Court. County Courts Act, 1888. County Electors Act, 1888. County Vote. Covenant running with land. Covenants in Law. Creditors' Deed. Criminal Law. Criminal Matter. Criminatory Answer. Criticism, Limits of. Cross-examination. Crucifix. Cruelty. Cy-pres. Damages. Debentures. Debtor and Creditor. Deceit, Action of. Digitized by Microsoft® TABLE OF TITLES AND SUB-TITLES. XXIX Deck Cargo. Deed, Alteration of. Deed of Arrangement. Deeds of Arrangement Act, 1887. Defeasance. Delay. Deposit Money. Desertion. Devise to Trustees. Dictum. Directors. Directors' Liability Act, 1890. Disbursements. Discharge. Disclaimer. Discontinuance of Action. Discovery. Dismissal of Action. Disqualification. Distress. Divorce. Documents of Title. Domicil. Donatio Mortis Oausa. Double Portion. Duress. Easement. IBcclesiastical Law. Efficient Cause. Election. Employers' Liability Act, 1880. Endowed Schools Act, 1869. Equitable Conversion. Equitable Mortgage. Equity. Equity, Courts of. Equity to a Settlement. Escrow. Estoppel. Evidence. Excessive Damages. Exclusive Dealing. Execution Creditor. Executors. Executory Devise. Exoneration of Personal Estate Extra judicial Opinion Factors Act, 1889. Faculty. False Pretences. Family Settlement. Fetter on Redemption. Fictitious Sale. Final Judgment. Fines. Fishing Interrogatories. Footways. Foreign Judgment. Foreign Law, Evidence of. Forfeiture. Forfeiture Clause. Fraud. Fraud on Power. Fraudulent Conveyance. Fraudulent Marks on Merchandise. Fraudulent Preference. Friendly Societies Act, 1887. Funeral Expenses. Garnishee Order. General Average. General Devise. General Words. Gift. Glebe Lands Act, 1888. Good Title. Groodwill. Grant. Guardianship of Infants Act, 1886. Habeas Corpus. Heirlooms. Highway. Hire and Purchase Agreement. Housing of the "Working Classes Act, 1890. Husband and "Wife. Illegal Condition. Illegal Contract. Illegitimate Children. Images. Implied Warranties or Covenants in Law. Impotence. Inclosure Act. Digitized by Microsoft® XXX TABLE OP TITLES AND SUB-TITLES.' Income Tax. Inconsistent and Contradictory Limita- tions. Infants. Infectious Disease (Notification) Act, 1889. Infections Disease (Pj:evention) Act, 1890. Injunction. Injury. Inn. Inns of Ciancery. Inspection of Documents. Insurance against Accident. Insurance, Eire. Insurance, Life. Insurance, Marine. Interest. Interest — Bill of Costs. Interpleader. Interrogatories. Intestates Estates Act, 1890. Intimidation. Investment. Jettison. Joint and several Contract. Judge's Notes. Judgment. Judicature Act, 1873. Judicial Act. Judicial Discretion. Judicial Function. Judicial Inquiry. Judicial Separation. Jurisdiction. Jurisdiction of Court. Jvu-y, Attempt to Prejudice. Jus Tertii. Land Charges Registration and Searches Act, 1888. Land Clauses Consolidation Act, 1845. Landlord and Tenant. Larceny. Law. Law of Distress Amendment Act, 1888. Law of Libel Amendment Act, 1888. Lease. Lectures. Legal Maxims. Legal Terms and Maxims. Legatees, Legitimacy. Lessor and Lessee. Libel. Libel and Registration Act, 1881. Libel, Defamatoiy. ;. Libraries. Licence. Licensing Acts. Lien. Light. Limitations. ; Limitations, Statute of. Liquidator. Local Government.. Local Government Act, 1888. Lord Campbell's Act. Lost Grant. Lost WiU. Lunacy Act, 1890. Lunacy Acts Amendment Act, 1889. Lunatic. ; Magna Oharta. Maintenance. Malice. Malice, General. Malicious Prosecution. Manager. Mandamus. Marine Insurance. ' Maritime Lien. Marriage. Married Woman. Married Woman's Property Act. 1882. Master of Ship. Master and Servant. Maxims. Mayor's Court. Medical Act, 1858. Mens Rea. Merchandise Marks Act, 1887. Metropolis. Minerals. Mines and other Minerals. Ministerial Act. Digitized by Microsoft® TABLE OP TITLES AND SUB-TITLES. XXXI Misdescription. Patents, Designs and Trade Marks Misprision. Act, 1888. Misrepresentation. Paternity. Money Dealer. Path. Monument. Penalties, Penal and Liquidated. Mortgage. Perils of the Sea. Mortgagee. Perpetuity. Mortgagee in Possession. Petition of Right. Mortgagor and Mortgagee. Pews. Mortmain and Charitable Uses Act, Pleading. 1888. Pledge. Municipal Election- Policy of Insurance. Poor Law. Nationality. Naturalization. Poor Rate. ; Possession. Navigation. 1 Possibility on a Possibility. Necessaries. Poverty. Negligence. : Power of Appointment. Negotiable Instrument. Nemo est hseres viventis. Power of Attorney. Powers, Fraud upon. New Trial. Practice. New Trustees. Preference Shares. Newspaper, Prerogative Writ. Next Friend. Prescription. Notice. Presumption. NuisancG. i Presumption of Law. ^1 << IfcTliH^^^V^* Principal and Agent Oaths Act, 1888. Principal and Surety. Printer. Obiter Dicta. Priority. Officer of Court. Privilege. Official Liquidator. Privilege, Breach of. Official Receiver. Probate. Open Cover. Probate Court. Open Spaces Act, 1887. Probate Duty. Order. promissory Note. Owner. Promoters. ]Prosecutions, Stifling. Parent. Provisional Liquidator. Parish Registers. Provisional Specification. Parliament. Proximate Cause. Part Performance. Public Health Act, 1875. Particulars of Demand. Public Health Acts Amendment Act, Partners, Service on. 1890. Partnership. Public House. Partnership Act, 1890. Public Libraries Acts Amendment Act, Partnership Debt. 1887. Passenger's Luggage. Public Libraries Acts Amendment Act, Patent. Digitized by ^ 1890. /licrosoft® xxxu TABLE OP TITLES AND SUB-TITLES. Public Meeting. Public Worsiip Regulation Act, 1874. Publisher. Queen's Proctor. Quiet Enjoyment. Railway and Canal Commission. Railway and Canal Traffic Act, 1888. Railway Clauses Act. Railway Companies Act, 1867. Railway Company. Ratification. Receiver. Recitals. Rectification. Redemption. References. Refresher Pees. Release. Remainder. Remainderman. Remoteness. Rent Charge. Renunciation of Contract. Repairs. Reports. Representations. Representatives. Repudiation of Contract. Repugnant Condition. Requisitions. Res Judicata. Rescission of Contract. Residuary Legatee. Restraint of Trade. Restraint on Anticipation. Restrictive Covenant. Resulting Trust. Retainer. Riparian Owner. Riparian Rights. River. Roadside Wastes. Rule of Conduct. Rules. Sale and Hire Agreement Salvage. Satisfaction. Savings Banks Act, 1887. Scheme of Arrangement. Scotland, Jurisdiction. Searches. Second Action. Secretary of Company. Security for Costs of Appeal. Separate Actions. Separate Defences. Separate Estate. Separation. Separation Agreement. Sequestration. Servant. Service of "Writ. Service out of Jurisdiction. Settled Land Acts (Amendment) Act, 1887. Settled Land Act, 1890. Settlement. Severing Pleadings. Shares. Shelley's Case. Sheriff. Sheriff's Act, 1887. Ship. Shorthand Notes. Solicitor. Solicitors' Act, 1888. Solicitors' Remuneration Act, 1881. Special Power. Specific Performance. Spes Successionis. Stakeholder. Statute of Frauds. Statute of Limitations. Statutes, Construction of. Stay of Execution. Staying Proceedings. Stifling Prosecution. Stop Order. Stoppage in Transitu. Sub-lease. Subsidence. Support, Right of. Surety. Synods. Digitized by Microsoft® TABLE OF TITLES AND SUB-TITLES. XXXUl Tenant for Life. Tenantable Repair. Tender. Third Party. Threats of Criminal Proceedings. Time. Tithe. Tithe, Apportionment of. Tomb. Tort. Towage. Trade Machinery. Trade-mai'k. Traders. Trading inwards. Tramways. Ti-amways Act, 1870. Transfer of Stock into Joint Names. Transitus. Trial by Jnry. Trust. Trustee. Trustees Act, 1888. Ultra Vires. Undue Influence. User. Valuation. Vendor and Purchaser. Verdict of Jury. Voluntary Gift. Voluntary Liquidator. Voluntary Settlement. Volunteers. Waiver. Ward of Coiu-t. Warranty of Authority. Waste. , Wastes (Roadside). Water Rate. Widows of Intestates. WiU. Without Prejudice. Witness. Witness, Bribing. Writ of Summons. Digitized by Microsoft® Digitized by Microsoft® AN EXPOSITION OF ENGLISH LAW BY ENGLISH JUDGES. ^B0£TI7£ NEGOIIATIOirS, See Costs. 15. ABSOLUTE GIFT— Forfeiture Clause— Hepugnant Condition— Bankruptcy— Anntdment. Metcalfe v. Metcalfe, 43 Ch. D. 639. There are unquestionably gifts to the plaintiff of an absolute character ; . gifts, that is, which, if concerned with land, would create an estate in fee, and the plaintiff says that to put the forfeiture clause in operation as regards these would be to defeat the original gift by a condition repugnant to it, and therefore void. You cannot limit an estate to a man and his heirs until he shall convey the land to a stranger, because it is of the essence of an estate in fee that it confers free power of alienation, and it has long been settled that the same principle is applicable to gifts of personalty. . . . You can allow such a proviso to defeat any particular estate, not as operating to take away that which has already been given, but as restricting the quantity of the original gift ; but an estate in fee, or its equivalent, an absolute gift of personalty, does not admit of such treatment. ... In considering the point last treated I have grouped together, as governed by the same rule, estates in posses- sion and in remainder ; but when one comes to consider a property given otherwise than absolutely, as for life, a distinction must be taken between these two classes. The distinction is justified by the principle of construction above-mentioned, and is the logical outcome of it. The intention of the testator that the legatee shall partake of his bounty provided only that personal enjoyment be secured, would be defeated if, when an alienation, whether by act of the party or operation of law, is cancelled before enjoyment becomes possible, enjoyment wepe held to be prohibited by the forfeiture clause. It has been held in many cases, to some of Digitized by Microsoft® b 2 AN EXPOSITION OF ENGLISH LAW ABSOLUTE QIBT— continued. which I shall presently refer, that if a bankruptcy, which, if continuing, would hare brought a forfeiture clause into operation, has been annulled before any money becomes payable to the legatee, the clause does not come into operation, because the personal enjoyment does not, in the events which have happened, require to be secured, and this rule is directly applicable to reversionary interests, whether taking effect as remainders or as executory gifts. — Kekewioh, J. 640. The moment for determining whether the forfeiture clause is applicable to it or not is the moment when receipt or payment becomes possible in fact. — Kekewich, J. 641. The postponement of payment by some accident . . • ought not, I think, to affect the result ... It is said . . . that ... the proceedings in bankruptcy were unduly prolonged, yet the estate was solvent, and there was enough to pay the creditors in full, so that whatever was coming to the legatee under the will was really her own, notwithstanding that it could not have been paid without the concurrence of the trustee in bankruptcy. If that had been substantially true, I should certainly have been disposed to hold that the forfeiture clause did not come into operation. 642. If money were payable to a trustee in bankruptcy under such circumstances that he thereupon, without the happening of any event other than some declaratory or other order claimable by the legatee, became a trustee of that money for the legatee, I should certainly, as at present advised, hold that the money would be personally enjoyed by the legatee just as much as if he had authorized an attorney to receive it on his behalf. In other words, annulment of bankruptcy need not have been formally made so as to prevent the operation of the forfeiture clause, provided there exists the circumstances which entitle the legatee to claim annul- ment as a matter of right ; and that, although some account may have to be taken, or some payments to creditors or others have to be made, before annulment can be perfected. — Kekewich, J. [Affirmed [1891] 3 Ch. l.J ABUSE OF FBOCESS OF COUBT. Concha v. Concha, 11 App. Cas. 570. We are bound to see that the powers of the Court are only used to advance justice. — Lord FitzGeeald. See Cross-examination. 1. Res judicata. Staying Proceedings. 2. Digitized by Microsoft® BY ENGLISH JUDGES. 3 ACCEPTANCE. See Bill of Exchange. 4. ACCORD AND SATISFACTION. Day v. MoLea, 22 Q. B. D. 610. In the case of a retention on account of a cheque sent in satisfaction, it is a question of fact on what terms the cheque was kept. — Lord Eshee, M.R. ACCOTTHT, See Mortgagee in Possession. 1. ACCUMULAIION— Maintenance. In re Collins. Collins v. Collins, 32 Oh. D. 232. Where a testator has made a provision for a family, using that word in the ordinary sense in which we take the word, that is the children of a particular stirps in succession or otherwise, but has postponed, the enjoyment, either for a particular purpose or generally for the increase of the estate, it is assumed that he did not intend that these children should be left unprovided for or in a state of such moderate means that they should not be educated properly for the position and fortune which he designs them to have, and the Court has accordingly found from the earliest time that where an heir-at-law is unprovided for, maintenance ought to be pro- vided for him. Lord Hardwicke has extended that to the case of a tenant for life, and the decision of Lord Hardwicke has been accepted and followed by the most distinguished judges. — Peaeson, J. ACQtnESCENCE. In re Eailway Time-tables Publishing Company. Ex parte Sandys, 42 Ch. D. 115. If I ask for one thing and have another thing sent me, and I keep it, I must pay for it, not because I make another bargain to pay for it when I say I will not, but because the law imposes on me an obligation to pay for it if I keep it. — Lindley, L.J. 117. I order goods of one description from a merchant; he cannot compel me to take goods of a different description, and he does not complete his contract by giving me goods of a different description; but if he sends me goods which are not according to the contract and which are not within the description of the contract, and I nevertheless elect to take them, my act with regard to them is evidence of a new contract, which the law will imply, to pay for that which I have kept.— Bowen, L.J. See Administration. 3. Ratification. Digitized by Microsoft® g 2 4 AN EXPOSITION OP ENGLISH LAW ACTIO PEESOKAIIS— Tort. CoNOHA V. MuKEiETA. De Moea V. CoNCHA, 40 Ch. D. 553. ' Actio persmalis moritur cwm persona.' It is true that no action for a tort can be revived or commenced against the representatives of the person who committed it ; but the case is quite different where the act is not a mere tort, but is a breach of a quasi contract, where the claim is founded on breach of a fiduciary relation, or on failure to perform a duty. — Cotton, L.J. ACTION IN BEU. See Ship. 3. ASEUFTIOir. See Double Portion. ADMINISTEATION. 1. Acconnt — Executor — Ketainer. In re Babkett. Whitaker v. Baeeett, 43 Ch. D. 73. Before that order was made she clearly could have paid the trustee the whole of the assets, for she would have had a right to prefer, one creditor to another. Did the making of that order make any difference ? I do not think it did, for I find no decree for ad- ministration. If there had been such a decree, it would have put an end to her power of preference. — North, J. 2. Executora— Eight to Prefer. In re Haegreaves. Dicks v. Hare, 44 Ch. D. 243. We all know that, until an order is made for administration, executors can prefer one creditor to another to an extent to which they^ cannot after proceedings have been commenced. That seems to be the case still ; the Act of Parliament has not said that execu- tors shall out of Court observe the same rules as they are to observe in Court. — Lindlet, L.J. 3, Delay — Lapse of Time — Acc[tiiesceiioe. Blake v. Gale, 31 Ch. D. 208. The demand here is this : " Tou, the legatees, received in 1861 money which I might then have insisted on being applied in discharge of my debt; it was, my money that you received ; give it me back." That is purely an equitable demand ; and being a plain equitable demand, and nothing else, it is open to that well-known principle as strong as any Statute of Limitations — stronger, perhaps — on which this Court declines to entertain stale demands. — Bacon, V.-C. 4, Adnmiistration of Estates — Ezecntor — Bight of Betainer. In re Jones. Calver v. Laxton, 31 Ch. D. 444. Without possession there can be no retainer. — Kay, J. Digitized by Microsoft® BY ENGLISH' JUDGES. 5 ADMINISTRATION— contmued. 447. The right of retainer, as it produces inequality, is never assisted. — Kay, J. 5. Power to Executors to carry on BnsinesB— Bight of Creditors of Testator and of subsequent Creditors of Executors — Funeral Expenses, In re Gorton. Dowse v. G-oeton, 40 Ch. D. 541. What is the right of the creditor of the deceased ? He is a creditor ; he has no equitable rights as distinguished from legal rights against the assets of the deceased. His right is to sue the executor at law and get a judgment at law de lonis testatoris, and under that to seize under a,fi.fa. the assets of the deceased in the hands of the executors at the time of his death. But he has nothing to do with future-acquired property. That is his right at law. But then, if the executor has so dealt with the assets as to have increased them, the executor cannot put the accretion into his own pocket, neither can he hand it over to the legatees or next- of-kin so long as the debts of the testator are unpaid. Therefore, I think it is plain that the creditors of the testator can get the subsequently-acquired property, but not on the same footing that they could get the property of the testator which were assets of the testator at the time of his death. The creditor of the testator can only get the after-acquired property on terms which are just. He cannot take the property from the executors and make the executors pay for it out of their own pockets. He can only have the property subject to the right of the executors to indemnity ; that is to say, he cannot throw the cost of getting the assets on the executors, and take the assets regardless of that cost. The tight of the executors to be indemnified out of the subsequently- acquired property lets in the rights of those to whom they are liable — ^that is to say, the creditors who have become such in the course of the executors' trading or carrying on the business. Such are the rights of the creditors of the deceased. Now, let us look at the rights of those who have dealt with the executors after his death. The right of those is to sue the executors. I believe there are some very exceptional cases in which subsequent creditors can get the assets, and I think there is authority for saying that funeral expenses can be got out of the assets ; but with those exceptions the right of subsequent creditors is to sue the executors. They have nothing to do with the assets" of the testator at all, and they can only get at them by the circuitous process of the executors being indemnified. Now, . . ddiust those rights, and the thing is perfectly plain. Out -of- the • •' ^^ Digitized by Microsoft® 6 AN EXPOSITION OF ENGLISH LAW ADMINISTEATION— oontoMed. assets of that part of the estate which existed at the death of the testator his creditors come first; the executor has no right of indemnity except as regards debts incurred by himself as executor. — LiNDLET, L.J. [See 1891, A. C, p. 190.J ASUINISTBATOBS. See Executors. 2. ADMIEAITT— Ship— Wages— Lien. The Queen v. Judge of City of London Court and Owners op s.s. Michigan, 25 Q. B. D. 342. Lord Stowell held that the woman who had acted as caretaker was entitled to claim against the ship. The right to proceed in rem for services rendered on board a ship apparently extends to every class of person who is connected with the ship as a ship, as a sea-going instrument of navigation, or of transport of cargo from one place to another, and to services rendered by such persons in harbour just as much as to services rendered by them at sea. — Wills, J. ADMIEALTY COURT. See Ship. 3. ADMISSION— Order XZZII., r. 6. PoREETT V. White, 31 Ch. D. 52. The defendant, one of the trustees of a settlement, in letters written to the plaintiff, his co-trustee, before the commencement of the action for the adminis- tration of the trusts, admitted having received £300, part of the trust funds, and invested it in an unauthorized way. The plaintiff, after the defendant had appeared in the action, took out a summons to have the £300 brought into Court, and made an affidavit deposing that he had paid the money to the defendant, and stating the admissions contained in the defendant's letters as to its application. The defendant did not answer this affidavit or adduce any evidence. Chitty, J., ordered the money into Court on the ground that the letters were a sufficient admission within Order xxxii., r. 6. The defendant appealed : — Held, that as the defendant had not met the afB davit, there was a sufficient admission that the money was in his hands, and that the appeal must be dismissed. — Sir J. Hannen, Bowen and Fey, L.JJ. abultebation, Pain v. Boughtwood, 24 Q. B. D. 353. Under the Food and Drugs Act, 1875, a person can be convicted even in the absence of evidence, of guilty knowledge.— Grantham and Chaeles, J J. Digitized by Microsoft® BY ENGLISH JUDGES. ADVERTISEMENT. See Executors. AFTEB-ACaTTIBEI) FBOFEBTY. See Bankruptcy. 1. Bill of Sale. 2. Bill of Sale. 3. AGENCY. See Solicitor. 1. AGENT. See Limitations, Statute of. 1. Principal and Agent. 1. AOBICTTLTTTBE. See Board of Agriculture Act, 1889. AIB. See Injunction. 3. AIB — ^Fresoription. Bass v. Gregory, 25 Q. B. D. 483. No man could dictate to his neighbour how he should build his house with respect to the general current of air common to all mankind, a sound principle of law ; but it does not apply to the present case, because if ever there was a case of the access of air to premises through a strictly defined channel this is that case. 484. Although a good deal has been said from time to time against the doctrine of lost grant, yet almost all civilized countries have adopted it. That doctrine amounts in substance to this : that if a legal right is proved to have existed and been exercised for a number of years the law ought to presume that it had a legal origin. Perhaps the doctrine has best been stated by Parke, B., in Bright v. Walker, who says, " For a series of years prior to the passing of this Act (the Prescription Act), judges had been in the habit, for the furtherance of justice and the sake of peace, to leave it to juries to presume a grant for a long exercise of an incorporeal right, adopting the period of twenty years by analogy to the Statute of Limitations. Such presumption did not always proceed on a belief that the thing presumed had actually taken place ; but, as is properly said by Mr. Starkie in his treatise on evidence, a technical efficacy was given to the evidence of possession beyond its simple and natural force of operation." — Pollock, B. ALLOTMENTS ACT, 1887. Digitized by Microsoft® 8 AN EXPOSITION OF ENGLISH LAW ALLOTMENTS AHD COTTAGE GAEDEHS COMPENSATION TOE CHOPS ACT, 1887. AMENDMENT. " Bbddington V. Atlee, 35 Ch. D. 329. I should make all proper amendments which would enable me to do justice, and I should not dispose of the case as against the plaintiff on the ground that he has not pleaded this point if I thought it could be maintained, on the facts proved. — Chitty, J. 2. — Stewaed v. North Meteopolitan Tramways Company, 16 Q. B. D. 182. An amendment of a pleading should in every case be allowed if it can be made without injustice to the other party. — ■ Lord Esher, M.E. 3. EiDiNG V. Hawkins, 14 App. Cas. 56. Held, that amendment was properly allowed after defendant had been cross-examined and his case closed, a case of fraudulent misrepresentation being- disclosed by the cross-examination. — Butt, J. ANCIENT LIGHTS. See Land Clauses Consolidation Act, 1845. 1. Light. 2. ANNOYANCE. See Eestrictive Covenant. 2. ANNUITANTS— Legatees— EqTiitable Mortgagees. Garpitt V. Allen. Allen v. Longstapfe, 37 Ch. D. 50. Per- sons entitled to the annuity or legacies are in the position simply of persons having a charge on real estate ; they have no legal estate. They are in the position of equitable mortgagees ; they could not have taken possession of the land ; they could have enforced their charge by (amongst other things) getting the appointment of a receiver if they had thought fit to do so. They did not take steps to enforce their charge, and they are, in my opinion, in exactly the same position as a mortgagee who has not entered into possession. A mortgagee who has not entered into possession is not entitled to an account from a second mortgagee who has been in possession. — North, J. APPEAL. 1. Assessment Committee of Fulham Union v. Wells, 20 Q. B. D. 751. It is undoubted law than an appeal is the creature of- Digitized by Microsoft® BY ENGLISH JUDGES. 9 APPEAL — conMnaetJ. statute, and must be expressly given, and cannot be given by- inference. — Cave, J. 2. Christophee v. Ceoll, 16 Q. B. D. 67. The appeal is "brought" when the notice of appeal is served. — Loed Eshee, M.E. S. Fleming v. Hislop, 11 App. Cas. 694. It is no use for the appel- lants to make out that this is something which is neither fact noi; law, because unless they can make out that it is law, there is no appeal. — Loed Beamwell. 4. Criminal Matter — Contempt of Court — Jury, Attempt to prejudice. O'Shba V. O'Shea and Paenell, 15 P. D. 63. It is convenient that the notice should be entituled in the cause to shew to what matter the motion to commit refers ; but what gives the Court the power to act is the fact that the appellant has done something to prevent the course of justice by preventing the divorce suit from being properly tried. That is clearly a contempt of Court of a criminal nature. Authorities have been cited which shew that everything done to prejudice the judge or jury in the trial of an action is a criminal act, because it is an attempt to prevent the course of justice. It is argued by the appellant that the act is complained of, not by the Attorney-General as a public wrong, but by the petitioner, who complains of it as a personal injury j but that makes no difference. It is conceded that it was a wrongful act, otherwise there could be no fine or imprisonment. And when you concede that it is a wrongful act, you find that, although it is headed in the divorce action, it is not a proceeding in the action — not a proceeding for the purpose of obtaining any- thing in the action, but an application to punish an attempt to induce the jury not to try the case properly, which is as much a criminal act as an attack upon the judge himself. — Cotton, L.J. 5. Extension of Time. Bbadshaw V. Waelow, 32 Ch. D. 406. Where a motion or an appeal can be brought on, and it is objected that it is out of time, the appellant can always apply at the same time for an extension of time. — Cotton, L.J. g, Jndge's ITotes of Evidence. Ellington v. Claek, Bunnett & Co., 38 Ch. D. 332. It is the duty of the appellant to apply to one of the judges of the Court of Digitizeaby Microsoft® 10 AN EXPOSITION OP ENGLISH LAW APPEAL — continited. Appeal through his clerk to ask the judge from whom the appeal is to send a copy of his notes to the Court of Appeal. It is to be understood that in future, when the appellant has not so applied for a copy of the judge's notes, we shall order the appeal to stand over to allow of the application being made. The Lord Justice Fry suggests, and I agree, that this standing over should be at the expense of the appellant if he has not previously made the application. — Cotton, L.J. 7, Appeal to Honse of Lords — Stay of Xzecntion. The Annot Lyle, 11 P. D. 116. An appeal shall be no stay of proceedings except the Court may so order. If in any particular case there is a danger of the appellants not being repaid if their appeal is successful, this must be shewn by affidavit. — Loed ESHEE, M.E. 8. Time for — Judgment — Order. Onslow v. Commissioners of Inland Revenue, 25 Q. B. D. 466. A "judgment" is a decision obtained in an action, and every other decision is an order. — Lord Esheb, M.II. See Costs. 5. Habeas Corpus. 2. Judicature Act, 1873. Security for Costs of. Stay of Execution. APPOINTMENT. See Will. 11. APPRENTICESHIP DEED. See Infant. 1. ABBITBATION. 1. In re Arbitration between Seceetaey of State foe Home Depaetment and Fletcher, 18 Q. B. D. 344. An arbitrator ought, in his award, to follow the submission ; and only determine what is submitted to him. 345. His award is, in my opinion, wrong in form ; but as the arbitrator has, in fact, determined the matter submitted to him, I do not think we ought to set aside the award, but it ought to be remitted. — -Bowen, L.J. 2. Common Law Procedure Act, 1864. Davis v. Stare, 41 Ch. D. 246. Before that Act was passed it was held that the Court had no power to stay an action brought Digitized by Microsoft® BY ENGLISH JUDGES. H AXZITRATIO'S— continued. by either of the parties. It was thought that the Court ought not to enforce an agreement which prevented the parties from having recourse to the ordinary tribunals. The Act was, there- fore, passed to enable the Court to enforce such agreements. But the question here is : Ought the Court to interfere in this case ? — Cotton, L.J. 3. Efifusal of Party to appoint Arbitrator — Arbitration Act, 1889. In re Smith & Seevioe and Nelson & Sons, 25 Q. B. D. 552. It has long been settled law that the Court will not grant specific performance of an agreement to refer ; but if this argument is sound, it is difficult to see why there should not have been specific, performance of a portion of the agreement that is to say, why one party should not have had a decree compelling the other party to proceed and appoint an arbitrator. But there is no authority for any such proposition . . . There never has been an order to attach a man for not appointing an arbitrator, and still less an order by the Court to appoint an arbitrator in default of his appointment. It has been said that the law has been altered in that respect by the Act of 1889 ; but there is no ground for that contention unless it be based on s. 1 ; the other sections, namely, ss. 4, 5, and 6 do not touch this point. It certainly looks like a blot in the Act, that by reason of there being there no provision as to three arbitrators, as distinguished from two arbitrators and an umpire, ss. 4, 5, and 6, do not apply ; but we cannot help that. — LiNDLET, L.J. 553. There may be an agreement to refer generally without naming the arbitrators ; such an agreement was always irrevocable, and an action would always lie for its breach, although the Court could not compel either of the parties to proceed under it. — BOWBN, L.J. 4. Eevocation of Submission. James v. James, 22 Q. B. D. 669. The Court has a discretion to revoke if there is reasonable ground for supposing that the arbi- trator is going wrong. But in giving leave to revoke, it should be satisfied that a substantial miscarriage- of justice will happen in the event of a refusal. — Stephen, J. 5, Bevooation of Submission, East and West India Dock Company v. Kiek and Eandall, 12 App. Cas. 738. The Court has jurisdiction to give leave to Digitized by Microsoft® 12 AN EXPOSITION OF ENGLISH LAW AEBITEATION— coTiiJnuei.' revoke the submission if there is reasonable ground for supposing that the arbitrator is going wrong in point of law even in a matter within his jurisdiction. — LoKD Halsbuey, L.C. 6. Time for making Award — Public Health Act, 1876. In re Yeadon Local Board and Ybadon Wateewoeks Company, 41 Ch. D. 52. The time for making award is twenty-one days from reference, which may be extended for two months ; and thia applies to an umpire ; and in his case the time from which the twenty-one days will run is the date when the arbitrators finally disagree. — [Cotton, Lindley and Lopes, L.JJ.] 7. Arbitration and Award — Valuation. In re Caeus-Wilson and Geeene, 18 Q. B. D. 10. A valuer may be, in one sense, called an arbitrator, but not in the proper legal sense of the term. In the ordinary cases of arbitration there is a dispute which is referred. The object of the valuation, on the other hand, is to avoid disputes. There is nothing in the nature of a dispute when the valuer is appointed. It is a term of the agreement for sale that the timber shaU be valued and that the purchaser shall take it at the valuation. It is a mere matter of fixing the price, not of settling a dispute. — Lindley, L. J. See Land Clauses Consolidation Act, 1845. 4. ASBITBAIIOir ACT, 1889. For amending and consolidating the enactments relating to arbitra- tion. See Arbitration. 3. ARBESTUXNT. See Scotland, ABTIZANS Am) LABOTTBXBS SWELLINGS. See Housing of the Working Classes Act, 1890. ASSIGNEE. See Chose in action. Landlord and Tenant. 3. ASSIGNMENT. See Landlord and Tenant. 2. ASSIGNMENT OF DEBT— Charge— Judicature Act. Tanoeed V. Delagoa Bay and East Africa Eailway Company, 23 Q. B. D. 240. A "charge " is a very different thing from a complete assignment by way of mortgage : a charge is only an undertaking io pajr, out of a particular fund.- . (In argum_ent)-. Digitized by Microsoft® BY ENGLISH JUDGES. 13 ATTACHMEirr— Service of Notice of Kotion for. HowAETH V. HowARTH, 11 P. D. 99. Jessel, M.R., held that service of notice of motion for a writ of attachment upon the solicitors of the defendant on the record was sufficient, the original order having been personally served on him. — Cotton, L.J. AUDITOB. See Company. 7. ATTTHOB. - See Copyright. 1. ATTTHOBITT, AFFLICATION OP. Ex parte Blanchett. In re Keeling, 17 Q. B. D. 306. When the words of a judgment in one case are relied upon as an authority governing another case, you should endeavour to find out, not only the particular facts to which those words were applied, but the principle of the judgment. — ^Lokd Eshee, M.E. AVEBAOE. See Insurance, Marine, 1. Digitized by Microsoft® 14 AN EXPOSITION OF ENGLISH LAW B. BAILEE. See Jus tertii. BANEEB. J Bill of Exchange — Bills of Exchange Act, 1882. VaGLIANO BeOTHEES V. G-OVEENOE AND COMPANY OF BaNK OP England, 22 Q. B. D. 116. It was there held in the Exchequer Chamber that the acceptance of a bill of exchange payable at a banker's is tantamount to an order to the banker to pay the bill to any person who, according to the law-merchant, can give a valid discharge for it. Therefore, if the bill is payable to order, it is an authority to pay the bill to any person who becomes the holder by a genuine indorsement. "The bankers," says Parke, B., in his iudgment, " cannot charge their customer with any other payments than those made in pursuance of that authority." They cannot debit him with a payment made to one who claims through a forged indorsement, and so cannot give a valid discharge for the bill unless, indeed, there are circumstances amounting to a direc- tion from the customer to the bankers to pay the bill without reference to the genuineness of the indorsement, or equivalent to an admission of its genuineness inducing the bankers to alter their position so as to preclude the customer from shewing it to be forged. This throws on the bankers the responsibility of deciding on the genuineness of indorsements, a difficult and in many cases an almost impossible task. But if they wish to avoid that respon- sibility they can adopt the course indicated by Parke, B., in the last mentioned case : " They may require their customers to domicile their bills at their own oflSces and to honour them by giving a cheque on the banker." — Chaeles, J, [See 1891, A. C, p. 107.] 2. .^— Fledge — ^Deposit by Money-dealer of his Customer's Securities. Eael op Sheffield v. London Joint Stock Bank, 13 App. Cas. 342. The evidence discloses that it is customary for persons in the position of Mozley [the money-lender] to get large advances from banks in the city of London, by transferring their customers' securities in mass to cover the whole advance ; they engaging to keep the securities up to a certain limit of value, the bank, on the other hand, stipulating for the right to realise, at any time Digitized by Microsoft® BY ENGLISH JUDGES. 15 BANKEE— conWnued. for its own protection. It is, moreover, an essential condition of these transactions that the money-lenders shall be permitted to withdraw, from time to time, such securities as may be required in the course of their business, upon the footing of immediately restoring them, or substituting other equivalent securities for them. In fact, great part of their business consists in lending, at a higher rate of interest, moneys which they borrow from the banks, at a lower rate, upon the securities which they take from their own borrowers ; and it is necessary to the continuance of such a course of dealing that they shall be able to get back a customer's securities from the bank, whenever he has the right and is prepared, to release them. It was held by the Court of Appeal (in my opinion rightly) that the practice thus prevailing between money-lenders and the banks has not grown into a proper commercial custom. In the language of Cotton, L.J. there is " no such general custom proved as would bind anyone dealing with a money-dealer, unless it was shewn that he had notice of the practice, and he was proved to have dealt with him on the footing of that practice." The evidence also established that in the case of the advances for which the appellant's property was pledged to them, the respondents recognised and dealt with Mozley as a member of the money-lending class, and that he was permitted to exercise the usual privilege of withdrawing secu- rities, and replacing them with others. But it is proved, and not disputed, that the appellant had no knowledge of the practice and that he was not aware, before Mozley became bankrupt, that his property had been pledged for any greater amount than he had authorised Easton to borrow on its security. Mozley, accordingly, stood in this position. In a question with the appellant he had a perfect right to use his own interest in the securities as a source of credit : and he had no authority and no right to deal with the appellant's interest by way of pledge or otherwise. At the same time the appellant, by his own acts, had invested Mozley with an apparent dominion and authority which would have enabled him effectually to dispose of the securities to persons who had no occasion to suspect his limited title. — Lord Watson. See BiU of Exchange. 6. Shares. BANKRUPTCy. 1_ After-aoqnired Property — Bight of Action — Property vesting in Tnistee. Cohen v. MiTCHBLt, 25 Q. B. D. 266. Of course all the property, Digitized by Microsoft® 16 AH EXPOSITION OF ENGLISH LAW Bk^KRVrTCY— continued. which belongs to the bankrupt at the time of the bankruptcy, becomes at once the property of the trustee. But does all the property acquired by the bankrupt after his bankruptcy belong to the trustee absolutely, so that the bankrupt is divested of all interest and property in it, or does it remain the property of the bankrupt, so that at any rate he can deal with it until the trustee interferes ? In the case of property coming under the bankruptcy, if the bankrupt were to endeavour to maintain an action, in which the defendant was not estopped from denying the bankrupt's property in the subject-matter of the action, it would be a good plea that the property is not his, but is vested in the trustee ; but with regard to after-acquired property, it has been held that such a plea would be bad unless it went on to shew that the trustee had intervened before the transaction in respect of which the action is brought. That seems to be conclusive to shew that the bankrupt has a property, whether absolute or not is immaterial, in such things till the trustee interferes. 267. Until the trustee intervenes, all transactions by a bankrupt after his bankruptcy, with any person dealing with him bond fide and for value, in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the trustee. It will be seen, I think, from the wording of that proposition, that the stress of bona fides is laid entirely and solely on the person dealing with the bankrupt ; and if he has dealt in good faith, the question of whether the bankrupt, as between himself and the creditors, is also dealing in good faith is im- material. — Lord Eshee, M.E. 2. Assignment of Bankrupt's Property to Trustee. In re Spaceman. Ex parte Foley, 24 Q. B. D. 738. No declara- tion of trust or mere contract is an act of bankruptcy within the meaning of those words in the sub-section. There must be an assignment for the benefit of creditors according to the well- established meaning of the phrase in Bankruptcy law, before the Act, viz. an assignment of the property by deed to a trustee for the benefit of creditors . . . Whether this transaction amounted to a declaration of trust for the benefit of creditors, or a contract that the property should be dealt with in a certain way for their benefit, or whatever it was, unless it was an assignment of the whole of the debtpr's property for the benefit of creditors, it was not an act of bankruptcy. — Loed Eshee, M,E, Digitized by Microsoft® BY ENGLISH JUDGES. 17 BANKKTIPTCY— continued. 3. " Conduct of Affairs " of Bankrupt — Tntuie prospects of Property. In re Jones. Me parte Jones, 24 Q. B. D. 594. The conclusion I draw from the use of the word " affairs " in sect. 28, and from this particular condition in sub-s. 6, is that it was not the intention of the legislature that a man who was not. able to pay his debts at a given time, but who had reasonable expectations of acquiring property afterwards, should take advantage of the Act to get rid of his debts on payment of a small dividend, or perhaps none at all ; and, by getting an unconditional discharge, put himself in a position to enjoy, without molestation from his creditors, that property which he had every reason to believe would shortly devolve upon him. Let, me take the very common case of a man who has reason for thinking that he will take large pecuniary benefits under the will of his father, or an uncle, or some other wealthy relative. Such expectations are very naturally shared by those who are acquainted with his position ; and tradesmen and others are ready to give such a man credit in the expectation of being paid when these expectations are realized. If the con- tention of the appellant is correct, such a man might, after he had enjoyed the benefit of this credit, and when all his creditors were content to wait till these expectations were realized, file his petition in the Bankruptcy Court, and in the absence of fraud demand his discharge without paying his creditors any dividend, thus leaving himself free to enjoy the benefits of his relative's generosity, without sharing a sixpence of it with those who had trusted him in the expectation of being paid out of this fund. That such a state of things could be brought about without any actual fraud on the part of the expectant heir is obvious to any- one with the least knowledge of the world, and of the way in which credit is given to persons of that class. — Cave, J. 4, Discharge — Circumstances to be considered. In re Babkee. Ex parte Constabie. In re Jones. Ex parte Jones, 25 Q. B. D. 293. Does it follow that the judge may take into consideration, upon the application for a discharge, everything which has been done by the bankrupt during his past life ? It seems to me that there must be some limit ; and I think the judge ought not to take into his consideration, conduct which could not have had, anything to do with the bankruptcy, either in , producing it or in affecting it in any way after its .eoinmence- ment.— LoBD Esheb, M.E. Digitized by Microsoft® c 18 AN EXPOSITION OF ENGLISH LAW BANKETJPTCy — continued. 5 Disclaimer of lease by Trustee— Sub-lease by way of Mortgage— Vesting Order. In re Finley. Ex parte Clothwoekeks' Company, 21 Q. B. D. 487. If no vesting order is made, the lease will be determined under sub-s. 2, the sub-lease will be determined under sub-s. 6, and the lessor will take the property freed from both lease and sub-lease. This appears to us to be the logical consequence of the Act, and it is impossible not to see that it is a very startling result. It will very seriously affect the old practice of taking securities on leasehold property by way of sub-demise. — LiNDLEY, L.J. 6, Dwelling-bonse — One Creditor, In re Hecquaed. Ex parte Hecqitaed, 24 Q. B. D. 76. The trustee in a bankruptcy may be able to set aside transactions and get in assets which could not be set aside or got in without an adjudication of bankruptcy. ■ The mere fact that a man has only one creditor is not a sufficient ground for saying that bankruptcy proceedings cannot be maintained against him. — Lindley, L.J. 7, Evidence — Criminatory Answer. In re a Solicitoe, 25 Q. B. D. 24. From early time, persons have been obliged to answer questions that criminated them. That obligation was for a long while qualified by the protection given by the rule of law that answers which under particular statutes a man could not refuse to make (although at common law he could do so) should not be used as evidence against him in proceedings founded upon such answers. 25. The very point is now settled by the Bankruptcy Act, 1888, s. 17, enacting that the debtor shall be examined upon oath, and that it shall be his duty to answer all such questions as the Court may put or allow to be put to him, and that the answers shall be read over and signed by the debtor, and " may thereafter be used as evidence against him." Therefore, it is plain that a bankrupt is bound to answer questions which the Court allows to be put, and that the answers, although they tend to criminate him, may, by the express words of the Act of Parliament, afterwards be read in evidence against him. — LOED COLEEIDGE, C.J. 8, Fraudulent Conveyance— Intent to delay, hinder, or defraud Creditors. Ex parte Meecee. In re Wise, 17 Q. B. D. 299. The assumption that, if the natural or necessary effect of what the settlor did was to defeat or delay his creditors, the Court must find that he Digitized by Microsoft® BY ENGLISH JUDGES. 19 iASlSSJTPTCY— continued. actually had that intent is to my mind monstrous. That proposi- tion or doctrine I entirely abjure. — Lord Esheb, M.E. 301. The language which has been used in a great many cases, that a man must in point of law be held to have intended the necessary consequences of his own acts, is apt to mislead, by con- fusing the boundary between law and fact, and by consequences which can be foreseen with those which cannot. — Lindlet, L.J. 9. Judgment. In re Flatau. Ex parte Scotch Whisky Distillees, 22 Q. B. D. 86. The Court of Bankruptcy has gone behind a judgment, obtained by fraud, collusion, or mistake, but not after issues tried out before a Court. — Fet, L.J. 10. Official Eeceiver. In re Webbee. Ex parte Webbee, 24 Q. B. D. 318. He must not be a partisan in the matter ; he ought to stand by and see only that that which is right is done to all parties. — Lokd Esheb, M.E. 11. Scheme of Arrangement. Ex parte Bisohopfsheim. In re Atlmee, 19 Q. B. D. 36. The creditors get nothing more under the scheme than they would have had if the matter had proceeded in bankruptcy. For that reason alone the scheme is a bad one, and ought not to be approved by the Court. — Loed Eshee, M,R. 12. Trustee in. Ex parte Beown. In re Smith, 17 Q. B. D. 492. Because com- mittee of inspection choose to sanction the course adopted by the trustee, he is not justified in entering into litigation or acting in a manner which the judge may probably consider to be vexatious and frivolous, and wasteful of the property which he has to administer. — Loed Esheb, M.E. See Absolute Gift. BAXESITFTCT ACT, 1890. To amend the Law of Bankruptcy. BIAS. See Disqualification. Judicial Inquiry. BILL 07 EZCHAKOE. " In re Commebcial Bank of South Austbalia, 36 Ch. D. 529. Five per cent, is the rate of interest payable upon bills in this country when the^^y^|#g,^»gy^fl^reed upon.-NoETH, J. 20 AN EXPOSITION OP ENGLISH LAW BILL OF EXCHANGE— comtoMed. 2. Goslings and Shaepe v. Blake, 23 Q. B. D. 329. If a bill of exchange or promissory note is, on the face of it, made to bear interest, that interest runs on till payment.— Loed Eshee, M.E. 3. Acceptance. Odell v. Coemack, 19f Q. B. D. 226. The bill was drawn on Cormack Brothers, a firm consisting of one person only, viz., Margaret Cormack. I take it to be clear beyond all doubt that she might have accepted a Mil drawn on Cormack Brothers in her own name, and have bound herself by such acceptance just as much as if she had used the style, of the firm, and of course what she might have done herself she might authorize anybody else to do for her. — Hawkins, J. 4. Acceptance — Bills of Exchange Act, 1882. Decroix Verley et Cie V. Meyer, 25 Q. B. D. 347. If a bill drawn by one merchant upon another is presented for acceptance, the drawee has no right to alter the bill. If he is not willing to accept the bill he may refuse to do so. If he wishes to accept conditionally or in a (][ualified manner, he may express the acceptance accordingly ; but he ought not to alter the biU. A person who accepts a bill which would, according to the terms in which it is drawn, entitle the payee to indorse it over, must qualify such acceptance in plain terms if he wishes to prevent the bill from being negotiable. 348. As to the argument that the bill and the acceptance must be read together so as to make the acceptance a part of the bill, I protest that the acceptance is not part of the bill. When the bill is accepted the two together make the contract; but the acceptance is distinct from the bill, and the Bills of Exchange Act recognises the distinction. — Lord Eshee, M.R. 349. An acceptance must be construed most strongly against the acceptor. — Lindley, L.J. 350. What do the words " in favour of Flipo " mean ? They mean, as it seems to me, " payable to Flipo or order." A bill drawn in favour of a person is a bill drawn payable to such person or his order. If that be so the addition of the word " only " has no effect on the signification. If the words had be^n " payable to Flipo only," the case would have been different, and possibly the acceptance would have been qualified. In , this case I think the acceptors have missed their mark. — Bowen, L.J -[Affirmed [1891] A. C. 520.] : Digitized by Microsoft® BY ENGLISH "JUDG-ES. 21 BILL OF EXCHANGE— conei»Med. 5. Acceptance — Indorsee. In re Babnabd. Edwarbs «. Babnard, 32 Ch. D. 450. The plaintiff, as the indorsee of the bill, can only claim on the biU according to its form. — Cotton, L.J. 451. By law, the acceptance only binds the parties to whom the bill is addressed. — Cotton, L.J. ■ 452. The indorsee of a bill has no right arising out of the con- sideration for the bill. — Lindlet, L.J. 6. Banker — Bills of Ezohange Act, 1882. Vagmano Brothers v. Bank of England, 23 Q. B. D. 258. In Gibson Y. Swnter, the House of Lords appears to have expressly decided that it was only where the fictitious cha;racter of the bill was known to the acceptor at the time of acceptance that the biU could be treated against the acceptor as a bill payable to bearer. — ^BOWEN, L.J. 262. The responsibility of verifying the indorsements remained, therefore, with the bank. In the case of a genuine bill, the bank would have had to bear this responsibility. There was nothing in the letters of indication to relieve them froitn it here. — BOWEN, L.J. See Bankers. 1. BILLS 07 EXCHANGE ACT, 1882. 8ee Bankers. 1. Bill of Exchange. 4. Bill of Exchange, 6, BILL OF LADING — Charter-parties, Leduo V. Ward, 20 Q. B. D. 479. Where there is a charter- party, as between the shipowner and the charterer, the bill of lading may be merely in the nature of a receipt for the goods, because all the other terms of the contract of carriage between them are contained in the charter-party ; and the bill of lading is merely given as between them to enable the charterer to deal with the goods while in the course of transit; but, where the bill of lading is indorsed over, as between the shipowner and the indorsee, the bill of lading must be considered to contain the contract, because the former has given it for the purpose of enabling the charterer to pass it on as the contract of carriage in respect of the goods. — Lord Eshee, M.E. ^feeShip. 4. Ship. 5. Ship. 7. Digitized by Microsoft® 22 AN EXPOSITION OP ENGLISH LAW BILL OF SALE. 1. Ex parte Stanford. In re Baebeb, 17 Q. B. D. 270. A bill of sale is in accordance with the prescribed form if it is substantially in accordance with it, if it does not depart from the prescribed form in any material respect. But a divergence only becomes substantial or material when it is calculated to give the bill of sale a legal consequence or effect, either greater or smaller, than that which would attach to it if drawn in the form which has been sanctioned, or if it departs from the'form in a manner calculated to mislead those whom it is the object of the statute to protect. 271. Whatever form the biU of sale takes, the form adopted by it in order to be valid must produce, not merely the like effect, but the same effect — ^that is to say, the legal effect, the whole legal effect, and nothing but the legal effect which it would produce if cast in the exact mould of the schedule. — Bowen, L.J. 2, After-actinired Property. Thomas v. Kelly, 13 App, Cas. 512. It is obvious that a bill of sale which purports to assign after-acquired property, whether in the form of a covenant (its true legal effect), or, as stated specifically in words, as part of the security, is not in accordance with the " form," and therefore void.— Loed Halsbuet, L.C. 515. A sale of goods, or grant or mortgage of goods, could at common law be effected without writing; but it should be accompanied by possession, and an assignment of non-existent property, that is, of property which might or might not be acquired in the future, was at common law inoperative ; but if for value, it was in equity regarded as a contract of which specific performance might be enforced when (if ever) the thing came into actual existence. — Loed Fitzgeeald. 517. The decision of the Court of Appeal in this case, affirmed by your Lordships, prohibits in effect the assignment of future- acquired property in bills of sale coming within sect. 9 of the Act of 1882; and I may add that it accomplishes a most desirable result.— Loed Titzgebald. ^' '^ After-acquired Property, assignment of-Future Book Debts. The Official Eeceivee v. Tailbt, 17 Q. B. D. 88. An assign- ment of all the book debts which might 'become due is valid, and operates to pass the beneficial interest in a debt which came into existence after the assignment. 92. If future stock-in-trade may be assigned, why may not Digitized by Microsoft® BY ENGLISH JUDGES. 23 BILL OF SALE— cont«nu«(2. future book debts ? The future stock-in-trade takes the place of and is substituted for the present stock-in-trade. The book debt arises from the disposal of and takes the place of stock-in-trade present or future. — Mathew, J. 4. Afteivaoqmred Property— Future Book Debts— Assignment of. Tailbt v. Official Ebceiver, 13 App. Cas. 533. The rule of equity which applies to the assignment of future choses in action is, as I understand it, a very simple one. Choses in action do not come within the scope of the Bills of Sale Acts, and though not yet existing, may nevertheless be the subject of present assign- ment. As soon as they come into existence, assignees who have given valuable consideration will, if the new chose in action is in the disposal of their assignor, take precisely the same right and interest as if it had actually belonged to him, or had been within his disposition and control at the time when the assignment was made. There is but one condition which must be fulfilled in order to make the assignee's right attach to a future chose in action, which is, that, on its coming into existence, it shall answer the description in the assignment, or, in other words, that it shall be capable of being identified as the thing, or as one of the very things assigned. When there is no uncertainty as to its identifi- cation, the beneficial interest will immediately vest in the assignee. Mere difficulty in ascertaining all the things which are included in a general assignment, whether in esse or posse, will not affect the assignee's right to those things which are capable of ascertain- ment or are identified. — Loed Watson. 5, Chattels held under an oral agreement, by which title given. Nbwlove V. Sheewsbuet, 21 Q. B. D. 44. We have, I think, an oral agreement to give a security on these goods, which is un- affected by the Bills of Sale Acts, and entitles the defendant, having the possession, to retain it against the plaintiffs. — Loed ESHEE, M.E. 45. The agreement to give the security seems to me to have been by oral agreement antecedent to the receipt, and I think that the defendant upon obtaining possession of the machine is entitled to defend it by proof of such agreement without reference to the receipt at all. The right to possession conferred by such oral agreement cannot, I think, under these circumstances be upset by reference to the receipt. Where a person in possession of goods can onlvjXQve his ri^ht to possess them by a document " *' Digitized by Microsoft® 24 AN EXPOSITION OP ENGLISH LAW BILL OF SALE—oontimied. which is a bill of sale within the Bills of Sale Act, 1878, s. 4, and which is not registered, he cannot retain them against the person entitled to them subject to his claim. But, if the right to possess the goods can be proved by parol without reference to any document, the Bills of Sale Acts have no operation. "Where there is a document expressing the agreement between the parties, parol evidence of their agreement cannot be given ; and the possession must be referred to the document, and, if that is void, possession under it is of no avail. — Lindlet, L.J. 6, Defeasance. Blaibeeg V. Beckett, 18 Q. B. D. 101. Defeasance is something which defeats the operation of a deed. — Loed Eshee, M.E. 103. Defeasance, to my mind, means something in the nature of redemption. — Lindlet, L.J. 7, Fictitious Sale, substance of transaction to be looked at. In re Watson. Ex parte Official Eeceivee in Bankeuptcy, 25 Q. B. D. 37. I do not deny that people may evade an Act of Parliament if they can, but, if they attempt to do so by putting forward documents which affect to be one thing when they really mean something different, and which are not true descriptions of what the parties to them are really doing, the Court will go through the documents in order to arrive at the truth. So when the transaction is in truth merely a loan transaction, and the lender is to be repaid his loan and to have a security upon the goods, it will be unavailing to cloak the reality of the transaction by a sham purchase and hiring. It will be a question of fact in each case whether there is a real purchase and sale complete before the hiring agreement. If there be such a purchase and sale, in fact, and afterwards the goods are hired, the case is not within the Bills of Sale Act. The document itself must be looked at as part of the evidence; but it is only part, and the Court must look at the other facts, and ascertain the actual truth of the case. — Loed Eshee, M.E. 8, Hire and Purchase Agreement. Manchestee, Sheffield, and Lincolnshiee Eailwav Company v. NoETH Centeal Wagon Company, 13 App. Cas. 560. The object of the earlier Bills of Sale Acts was entirely different from that of 1882. The former enactments were designed for the pro- tection of creditors, and. to prevent their rights being affected by secret assurances of chattels which were permitted to remain in Digitized by Microsoft® BY ENGLISH JUDGES. 25 BILL OF SALE— cojiiin««d. the ostensible possession of a person who had parted with his property in them. The bills of sale were therefore made void only as against creditors or their representatives. As between the parties to them they were perfectly valid. The purpose of the Act of 1882 was essentially distinct. It was to prevent needy persons being entrapped into signing complicated documents which they might often be unable to comprehend ; and so being subjected by their creditors to the enforcement of harsh and unreasonable provisions. — Lord Heeschell. 567. There is all the difference in the world between a mort- gage and a sale with a right of repurchase.— Lord Maonaghten. 9' Invoice and Eeceipt— Doonments not constituting an assnranoe of Chattels. North Central Wagon Company v. Manchester, Sheffield, AND Lincolnshire Eailway Company, 35 Ch. D. 205. The Bills of Sale Act of 1882 does not avoid transactions ; it does not avoid parol agreements ; it does not avoid anything except docu- ments which are defined by the interpretation clause of the Act of 1854 in the first place, and subsequently by the interpretation clause of the Act of 1878. But if, independently of a document, the rights of the parties have been effectively altered or dealt with either in law or in equity, . avoiding the document can produce no result— it cannot operate to the disadvantage of that which stands propria vigore independently of the document. — Bo wen, L.J. 10. maintenance of Security. FuRBER V. Cobb, 18 Q. B. D. 495. The covenant to replace and repair articles destroyed, injured or deteriorated, was necessary for maintaining the security, and the bill of sale was not void because power was given to seize on a breach of that covenant. But the bill of sale was void because it authorized the grantees to retain their commission as auctioneers. — Lord Esher, M.K., Sir J. Hannen, Fey, L.J. The covenant not to remove the chattels without the consent of the grantees, was necessary for maintaining the security, and semble, the unqualified covenant to produce the receipts for rent, rates, and taxes on demand was also necessary. — Sir J. Hannen. Semhle, if a bill of sale contains a power to seize in an event not authorized by the Act, the insertion of a proviso that the goods shall not be liable to seizure for any cause other than those specified in sect. 7 of the Act, will not render the deed valid. Digitized by Microsoft® 26 AN EXPOSITION OF ENGLISH LAW BILL OF SALE — eontinned. 11, mortgage — Trade Machinery. In re Yates. Batcheldoe v. Yates, 38 Ch. D. 128. The trade machinery simply follows the land as the shadow follows the substance. 129. I agree that if a mortgagee desires to have the power to sell the trade machinery separately he must have a bill of sale of the trade machinery, which would give him the power to sell and deal with it as trade machinery. — BowEN, L.J. 12, Fledge of Goods — SocTiment containing terms. Mills v. Chaeleswoeth, 25 Q. B. D. 425. Eeliance was placed on the decision of this Court in Ex parte EiMard. It is, however, to be observed that in that case there was a physical change of possession of the goods ; and the Court held that the pledge there effected could be proved without reference to any written docu- ment ; and that the pledge so proved was not invalidated by the non-registration of a contemporaneous document, which was viewed by the Court as at most a record of what had taken place, and as regulating the rights of the pledgee under a pledge created and proved by parol. In this case, however, there was no physical change of possession of the goods. In point of law possession of goods may be changed by agreement without any physical change in their position, or in the position of the person who actually guards them. The right to possession may be transferred by agreement, and the character in which the custodian holds them may be changed by attornment. But the agreement by which this change in possession was effected was reduced into writing, and cannot be proved apart from the writing. Without the writing Charlesworth cannot prove his right to possess as against Wilson, the owner of the goods. This at once makes the letter essential to the proof of Charlesworth's title, and brings the letter within the definition of a bill of sale. — Lindley, L.J. , 426. Where there are goods pledged as security for a loan and delivered to the pledgee, a document that merely records the transaction, and regulates the rights of the pledgee as to the sale and return of the goods, is not a bill of sale. The reason for the decision is that the document is only a record of a transaction which can be proved without reference to it. In this case, in my opinion, the document was an essential part of the transaction, which could not be made out independently of the writing. — Lopes, L.J. Digitized by Microsoft® BY ENGLISH JUDGES. 27 BILL OT SALE — eontinwed. 13, — — Sale or Hire agreements. NoETH Oenteal Wagon Company v. Manohestee, Sheffield, AND Lincolnshire Eailway Company, 32 Ch. D. 495. If there had been only that agreement, and if there had been nothing before the Court but that agreement, then it would perhaps have fallen within the principle which regulates contracts that have become very common nowadays— namely, contracts for the sale or hire of furniture in a house, where the stipulation is that you shall pay a certain sum by instalments, and if you pay all the instalments, then the goods which are at present let to you shall be yours out and out. That is no bill of sale ; that is assailable under none of the principles of the Bills of Sale Act. — Bacon, V.C. 14. statutory Form. CocHEANE V. Entwistle, 25 Q. B. D. 120. The rule laid down in Ex parte Stanford is, that you are to take the statutory form and the instrument which is in question, and to consider whether the two differ substantially in their legal effect — whether the one has a greater or a less legal effect than the other. — Fey, L.J. See Pledge. 2. BOASS OF AGBI01TLX1TBE, 1889. For establishing a Board of Agriculture for Great Britain. BOmrS DIVIDEND. See Company, 2. BOOK DEBTS. See Bill of Sale. 3. Bill of Sale. 4. BOTJNDAEIES, CONFTISION OF. See Copyholds. 1. Eent-charge. BOVILL'S ACT. See Partnership. 2. BOYCOTTING. See Conspiracy. 2. BBIBES. See Principal and Agent, 5, BECKER— Estoppel. n „ Williams v. Colonial Bank, Williams v. London Chae- TEEED Bank of Austealia 38 Ch D. 404. Where a third Digitized by Microsoft® 28' AN EXPOSITION OF ENGLISH LAW 'SSXfKEB,— continued. person has entrusted goods or the documents of title to goods to an agent who in the course of such agency sells or pledges the goods, he should be deemed by that act to have misled anyone who hond fide deals with the agent and makes a purchase from or an advance to him without notice that he was not authorized to sell or to procure the advance. — Lindley, L.J. 409. The estoppel must be found, if anywhere, in some express or implied representation, or, what perhaps comes to the same thing, negligent conduct which amounts to such a representation. — BOWBN, L.J. See Ship. 5. BTIILSIKO AGBEEMENT— Separate Leases. , LowTHEE t;. Heavee, 41 Ch. D. 248. When right to a lease accrues, in ordinary cases the several houses are no longer held on the terms of the building agreement, but on the terms of the lease. BTTIIDING ESTATE. See Lessor and Lessee. 3. BTniSIB'G SOCIETY— Directors acting ultra vires. OULLEENE V. LONDON AND SUBUEBAN GeNEBAL PERMANENT Building Society, 25 Q. B. D. 488. On looking carefully at the statutes by which these societies are governed, it certainly does appear that building societies can only advance money on the security of landed property, freehold, copyhold, or leasehold. The later Act, 37 & 38 Vict. c. 42, ss. 13 and 25, is to the same effect, except that the public funds are added. The 8th rule must be construed with reference to these enactments, and if it authorizes advances on other securities, or on no security, it must to that extent be regarded as contrary to law and invalid. The reso- lutions founded upon that rule, and authorizing advances other than on the security mentioned in the statutes, must also be treated as of no validity. No director, therefore, who has, in fact, advanced money of the society upon any other security than land, can avail himself either of the rule or of the resolutions as a defence to an action by the society for the restitution of the money so advanced. Nor does Eule 29, relating to the indemnity of the directors, extend to acts which are ultra vires, and beyond the powers which the society itself could confer upon them.— Lindley, L.J. Digitized by Microsoft® BY ENGLISH JUDGES. ;29 BUBIAL. See Ecclesiastical Law. 1. Ecclesiastical Law. 3. BTTBIAL, BIGHT OF— Election of monument— Chiirohyard. McGouGH V. Lancaster Burial Board, 21 Q. B. D. 327. What rights exist at common law in the case of the burial of a parishioner in a parish churchyard ? It appears that at common law the freehold of the parish churchyard, as well as the church, is vested in the incumbent, and, subject to certain personal rights belonging to himself, the object for which he so holds it is the burial of the parishioners. The erection of monuments in the churchyard in the ordinary course is a matter of habitual practice, but as a matter of law, strictly speaking, the consent of the ordinary would seem to be a necessary condition of the legality of their erection. It is true that, as a matter of practice^- where the incumbent's consent has been obtained in the first instance, the consent of the ordinary is to be implied,- and after the lapse of a reasonable time must be taken to have been given. Therefore, it is to be observed that the law does not give the parishioner power to decide what, shall be. placed on the grave, but the ultimate control over that is at common law reserved to the ordinary. — BowEN, L.J. Digitized by Microsoft® 30 AN EXPOSITION OF ENGLISH LAW 0. CANALS. See Kailway and Canal Traffic Act, 1888. , CANONS. See Ecclesiastical Law. 4. CABBIES. See Kailway Company. 3. CHAIBUAN 07 MEETINQ — ^Amendment to resolution — Fubllc Keeting, Hendeeson v. Bank of Australasia, 45 Ch. D. 346. The chair- man could not put any resolution which was not within the scope of the notice calling the meeting ; but this amendment proposed by Mr. Henderson was within the notice calling the meeting, and therefore might properly be put before the meeting for considera- tion. I think, then, that the chairman was entirely wrong in refusing to put the amendment, and that the resolutions which were passed cannot be allowed to stand, because the chairman, under a mistaken idea as to what the law was which ought to have regulated his conduct, prevented a material question from being brought before the meeting. — Cotton, L.J. 347. The meeting was called to consider certain proposed amendments in the deed of settlement, and to conduct it on the plan that no amendment should be proposed to any of the proposals, so that each resolution should be taken as it stood or rejected, was to conduct the meeting under a very serious misapprehension of the rights of the shareholders, and of their powers of discussion. — Eey, L.J. CHAMPEBTY AND MAINTENANCE. James v. Keee, 40 Ch. D. 456. From very early times it has been a grave oflFence against the law for anyone to intermeddle in litigation in which he is not interested. — Kay, J. That species of maintenance, which is called champerty, viz., the unlawful maintenance of a suit in consideration of a bargain for part of the thing, or some profit out of it.— Sir W. Grant, Kay, J. CHAB6E. See Assignment of Debt. Digitized by Microsoft® BY ENGLISH JUDGES. 31 CHABGIIfG OBSSB. Bkeeeton V. Ebwaeds, 21 Q. B. D. 488. A charging order may- be made by a judge of the Queen's Bench Division upon cash standing to the credit of the debtor in the Chancery Division in the name of the Paymaster-General. Such an order may be made ex parte, and in order to give effect to it, it is not necessary to obtain a stop order or to obtain the appointment of a receiver ; but notice given to the Paymaster- General wiU be sufficient to secure priority. CHABITABLE FTTBFOS£S. The Queen v. Commissionebs of Income Tax, 22 Q. B. D. 307. I cannot help thinking that in the minds of all ordinary, persons charity implies the relief of poverty, and I think there must be in the mind of the donor an intention to relieve poverty. ... A charitable purpose is not the less so because it is religious. — Loed ESHEE, M.E. 316. All gifts for public purposes, whether local or general, are gifts to charitable uses But what does the expression "charitable purposes" mean in the English language in its ordinary popular sense ? I think the purpose must be benevolent, and in relief of those in want. I should include mental and religious want. — Lopes, L.J. CHABITABIE TBTJST— Personal liability of Trustees. Andeews V. M'GuFEOG, II App. Cas. 324. With respect to the general principle on which the Court deals with the trustees of a charity, though it holds a strict hand on them when there is wilful misapplication, it will not press severely upon them when it sees nothing but mistake. It often happens from the nature of the instrument creating the trust that there is great difficulty in determining how the funds of a charity ought to be administered. If the administration of the funds, though mistaken, has been honest and unconnected with any corrupt purpose, the Court, while it directs for the future, refuses to visit with punishment what has been done in the past. To act on any other principle would be to deter all prudent persons from becoming trustees of charities.— LoKD Eldon, Loed Watson. 325. In both countries {id est, England and Scotland), this principle has prevailed, namely, that there shall be a very enlarged administration of charitable trusts. You look to the charity which is intended to be created, and you distinguish between it Digitized by Microsoft® 32 AN EXPOSITION OF ENGLISH LAW CHAEITABLE TJLV ST— continued. and the means which, are directed for its accomplishment. — Lobd Westbdet, Lord Watson. 326. The only adiiiinistratiTe error which the respondents have committed consists in their having honestly mistaken the mode in which the testator's purpose was meant to be attained. — Lord Watson. CHABITABLS IBTTSIS ACT, 1833— Leave of Commissioners before commencing action. Eendall V. Blair, 45 Ch. D. 152. Speaking broadly, I think that this section does not deal with or touch actions which are brought to enforce common law rights, whether such rights arise out of contract, or out of tort, or but of common law duty. I ought to say, I think also that it does not apply to suits by individuals whose object is solely to obtain equitable relief in respect of conimou law rights. 155. Such a construction would be to place the Charity Board . in the remarkable ])osition of a Court without appeal upon the subject of common law rights, so that a man who had a claim against a charity, which he could only enforce, or the apt relief in respect of which was an injunction from the Court of Chancery in regard to a threatened wrong, would find himseK absolutely at the mercy of an irresponsible board. Such legislation is possible; but I think we ought not to assume without the clearest language that Parliament intended to destroy, common law rights of Her Majesty's subjects by placing them at the mercy of an irresponsible tribunal or irresponsible department of the state. 157. The common law question may involve the construction of a deed, or may incidentally involve the question whether the managers who are seeking to oust him are really properly ap- pointed. But, as I said before, the mere fact that such questions incidentally arise, does not seem to me to bring the case within the section. 158. The enactment is directory ;, it does not oblige the Court to close the gates of mercy upon the applicant, but enables it to stay, proceedings until that consent, which as a matter of. duty ought to be obtained in the first" instance, is obtained at last. — BowEN, L.J. CHASITABLE USES. ■ 8'ee Mortmain and Charitable Uses Act, 1888. Digitized by Microsoft® BY ENGLISH JUDGES. S3 CHAEITY. 1. In re Chbistchuboh Inclosuee Act, 38 Ch. D, 530. The trust, being created by statute, cannot be held invalid on the ground of perpetuity or on any other ground. It is a perpetual trust for the occupiers for the time being of those cottages. But such a trust, unless it is a charitable trust, is one of a very anomalous character, and one which it will be extremely difficult to give full effect to in all contingencies ; for example, in the case of the destruction of some of the cottages. ... If this trust can be properly regarded as a charitable trust, it ought, in our opinion, to be so regarded. Had it not been for the decision in the House of Lords in Goodman v. Mayor of Saltash, we should have felt great difficulty in holding this trust to be a charitable trust. For, although the occupiers of these cottages may have been, and perhaps were, poor people, the trust is not for the poor occupiers, but for all the then and future occupiers, whether poor or not. Moreover, the trust is not for the inhabitants of a parish of district, but only for some of such persons. The trust is for a comparatively small and tolerably well-defined class of persons. The class, however, though limited, is as to its members uncertain, and is liable to fluctuation, and the trust for the class is perpetual. — Cotton, Lindley, and Bowen, L. JJ. 2. In re St. Stephen, Coleman Street. In re St. Maey the Viegin, Aldeemanbuet, 39 Ch. D. 498. No doubt there may be bodies corporate or quasi-corporate, such as private clubs, or the Inns of Chancery, which have existed from ancient time, and hold property which is not the subject of a charitable trust ; but the distinction in those cases is that, the purposes to which the property is devoted being of a private, and not a public, character, it is competent for the corporators at any time to put an end to them and divide the property amongst themselves. 501. Where you have a trust which, if it were for the benefit of private individuals or a fluctuating body of private individuals, would be void on the ground of perpetuity, yet if it creates a charitable, that is to say, a public, interest, it will be free from any obnoxiousness to the rule with regard to perpetuities. — Kay, J. 3. In re Cheistohurch Inclosuee AcfT, 35 Ch. D. 370. Where you have a trust which, if it were for the benefit of private individuals Digitized by Microsoft® d 34 AN EXPOSITION OF ENGLISH LAW CHARITY — continued. or a fluctuating body of private individuals, would be void on the ground of perpetuity, yet, if it creates a charitable, that is to say, a public, interest, it will be free from any obnoxiousness to the rule with regard to perpetuities.— Stieling, J. 4, Poverty. Pease v. Pattinson, 32 Ch. D. 158. Poverty is not a necessary element to entitle a person to receive a charitable donation. — Bacon, V.C. chabterebs. See Maritime Lien. CHAETEB-PAETIES. See Bill of Lading. Ship. 7. Ship. 8. CHATTELS. See Interpleader. CHILD. See Habeas Corpus. 1. Illegitimate Children. CHILD-BEAEING. In re Dawson. Johnston v. Hill, 39 Ch. D. 164. The impos- sibility of issue has come now to be fixed somewhere about the age of fifty-four, although the circumstances may still be inquired into. — Chitty, J. CHILDEEN— Prevention of Cruelty to, and Protection of Children Act, 1889. CHOSE IN ACTION— Assignees of a. DoERiNG V. DoEEiNG, 42 Ch. D. 206. Such purchasers and trans- ferees (assignees of a cJiose in action) are always exposed to great risk. They have been held to take subject to making good a breach of trust by a trustee, the vendor, although the breach of trust was subsequent to the purchase. — Hall, V.C. See Married Woman. 1. CHUECH — ^Eepair of Tomb — Eepair of Clmroliyard. ift re Vauuhan. Vaughan v. Thomas, 33 Ch. D. 192. It is clearly for the benefit of the inhabitants of the parish that. not ■ only the fabric, but also that the ornaments of the church, whether in the shape of mural tablets or otherwise, should not be permitted Digitized by Microsoft® ■ BY ENGLISH JUDGES. 35 CHTTBCH — contimted. to fall into a state of dilapidation and decay. — Kindeesley, V.C. ; North, J. A testator providing for the repair of a family tomb is only ministering to his own private feeling or pride, or it may be to a feeling of affection he has for his own relations ; and it is not for the benefit of the parish at large that a particular tomb should be kept in repair. But in respect of the repair of the churchyard as a whole, it is for their benefit. — North, J, See Ecclesiastical Law. 7. Will. 1. CHURCH DISCIPLINE ACT. See Ecclesiastical Law. 2. GHTTBCHYARD. See Burial, right of. Church. Ecclesiastical Law. 3. CLAY. See Mines and other Minerals. CLOGGING THE REDEMPTION. See Mortgage. 9. CLUB — Bight of Membeis. Baied V. Wells, 44 Ch. D. 670. The only questions which this Court can entertain are first, whether the rules of the club have been observed ; secondly, whether anything has been done con- trary to natural justice; and, thirdly, whether the decision complained of has been come to lonafide. 676. What is the jurisdiction of a Court of Equity as regards interfering at the instance of a member of a society to prevent his being improperly expelled therefrom ? I have no doubt whatever that the foundation of the jurisdiction is the right of property vested in the member of the society, and of which he is unjustly deprived by such unlawful expulsion, there is no such jurisdiction that I am aware of reposed in this country, at least in any of the Queen's Courts to decide upon the rights of persons to associate together when the association possesses no property. ... I can- not imagine that any Court of justice could interfere with such an association if some of the members declined to associate with some of the others. That is to sav, the Courts as such, have never dreamt of enforcing agr^pg^^ fe^i/gfl/^ogg^^nal in their natu^re. . . 36 AN EXPOSITION OF ENGLISH LAW CLUB — continued. In such cases no Court of justice can interfere so long as there is no property, the right to which is taken away from the person complaining. If that is the foundation of the jurisdiction, the plaintiff, if he can succeed at all, must succeed on the ground that some right of property to which he is entitled has been taken away from him. That this is the foundation of the interference of the Courts as regards clubs, I think is quite clear. . . . The position appears to me to be this : each member is entitled by contract with the defendant Wells to have the personal use and enjoyment of the club, in common with the other members, so long as he pays his subscription, and is not excluded from the club under rule 17. That right is, as it seems to me, of a personal nature, such as, if infringed, may give rise to a claim for damages, but not such as the Court will enforce by way of specific performance or injunction. — Stirling, J. See Charity. 2. COAL MINES BEGITLATION ACT, 1887. COHABITATION. See Husband and Wife. 6. COLLATERAL ADVANTAGE. • See Mortgage. 1. COLLATERAL AGBEEUENT. See Restrictive Covenant. 3. COLLISION. See Insurance, Marine. 2. Maritime Lien. Ship. 9. Ship. 10. Ship. 11. Ship. 12. COMBINATION. See Conspiracy. 1. COMITY OF NATIONS. CoLQUHOUN V. Brooks, 21 Q. B. D. 57. The English Parliament cannot be supposed merely by reason of its having used general words to be intending to do that which is against the comity of nations. — Lord Esher, M.E. COMMISSION, See Cross-examination. 1. Evidence. 1. Digitized by Microsoft® BY ENGLISH JUDGES. - 37 COMKISSION, SECHET. See Company. 18. Principal and Agent. 6. COMMISSION TO EXAMINE WITNESS. The Parisian, 13 P. D. 17. In my opinion there is a material difference between a party to an action and an ordinary witness. One reason of that difference is that, if the deponent is resident abroad and is only a witness, it may be absolutely impossible for a party to produce him, and a great injustice may be done by ordering his production here. But there is a difference when the deponent is a party, for he may come or stay away at his own peril. Another consideration to be kept in sight in exercising this discretion is a question of convenience and expense. While it may be unreasonable to require the attendance here for cross- examination of a man resident in Brazil, it may be right to compel that of a party resident in France. — Butt, J. COMMISSIONEBS 70B OATHS ACT, 1889. COMMISSIONERS FOU OATHS AMENDMENT ACT, 1890. To amend the Commissioners for Oaths Act, 1889. COMMON EMPLOYMENT. See Negligence. 2. COMMON LAW. 1. Emmens v. Pottle, 16 Q. B. D. 357. Any proposition the result of which would be to shew that the Common Law of England is wholly unreasonable and unjust, cannot be part of the Common Law of England. — Lord Esher, M.R. 2. EqTiity. Commissioners op Inland Eevenue v. Angus, 23 Q. B. D. 589. When you are contrasting " legally " and " equitably," " legal " must be understood to refer to Common Law, as distinguished from Equity. Therefore, "legally" transferred means transferred at Common Law, and " equitably transferred " means transferred according to Equity. Can there be a common law transfer of an equitable interest ? It seems to me that there cannot. Coinmon Law knows nothing about Equity, and does not deal with equitable interests. — Lord Esher, M.E. 596. The Court of Chancery has acted only in personam, and compeUed the t^^^^|^ ^^ ^hf&(i'^' °'"'''''^ *° ^' *^"'"'' 38 AN EXPOSITION OP ENGLISH LAW COMMON lAW — continued. either in this country or abroad, to transfer the property to the purchaser. — Lindley, L.J. See Metropolis. COMFANIUS CLATTSES ACT, 1845. /See Company. 4. COMPANIES (MEMORANDUM OF ASSOCIATION) ACT, 1890. To give further Powers to Companies with respect to certain Instruments, under which they may be constituted or regulated. COMPANIES (WINDING-UP) ACT, 1890. To amend the law relating to the Winding-up of Companies in England and Wales. COMPANY. 1, Beadfokd Banking Company v. Briggs & Co., 31 Cb. D. 19. The Companies Act, 1862, s. 30, relieved the company from taking notice of any trust created in respect of its shares. — Lord EsHBE, M.E. ; Baggallay, L.J. 2, Bonus Dividend — Capital or Income. BoucHE V. Speoule, 12 App. Cas. 398. Where a company has power to increase its capital and to appropriate its profits to such increase it cannot be considered as having intended to convert, or having converted, any part of its profits into capital when it has made no such increase, even if a company having no power to increase its capital may be regarded as having thus converted profits into capital by the accumulation and use of them as such. — Lord Hersohell. 3, Capital partly paid up— Preference Shareholders — Winding-up — Surplus Assets — Distribution. Birch v. Cropper. In re Bridgewater Navigation Company, Limited, 14 App. Cas. 525. In distributing the assets "amongst the members according to their rights and interests in the com- pany " and in adjusting " the rights of the contributories amongst themselves " (under 25 & 26 Vict. c. 89, s. 133, sub-ss. 1, 10), the liability of the ordinary shareholders for the unpaid balance of their shares must not be disregarded; and after discharging all debts and liabilities and repaying to the ordinary and preference shareholders the capital paid on their shares, the assets ought to , be divided among all the shareholders, not in proportion to the Digitized by Microsoft® BY ENGLISH JUDGES. 39 COMPANY— conWrtUf (J. amounts paid on fhe shares, but in proportion to the shares held. — Lords Heeschell, FitzGeeald, and Macnaohten. 4. Companies Clauses Act, 1845— Shares— Executors. Barton v. London and North Western Kailwat Company, 24 Q. B. D. 87. This case shews the importance of not treating all companies as governed by the same law, when in truth they are governed by a variety of enactments. There are two great parallel lines of legislation with regard to companies ; one being that of the Companies Act, 1862, the other that of the Companies Clauses Act, 1845. The provisions of these Acts are by no means alike ; and it is always necessary in dealing with a company to look to the provisions of the particular Act by which it is governed. We have in this case to look to the provisions of the Companies Clauses Act, 1845 ; we have nothing to do with the Companies Act, 1862. 88. What then is an executor to do, who finds that his testator has died entitled to shares in such a company as this ? He may do one of two things. He may leave the shares alone, outstanding in the name of the testator. The consequence would be that he could neither transfer the shares nor vote in respect of them, nor receive dividends on them, and, though he might be liable for calls, it would only be in his representative capacity. I do not see how the company could force him to have his name put on the register. On the other hand, the executor may want to deal with the shares or to receive dividends in respect of them. If so he must avail himself of the machinery given by the 18th section, and procure himself to be registered as a shareholder. — LlNDLEY, L.J. 5. Contract onbehalf of intended Company — Evidence —Ratification — Part Performance. Howard v. Patent Ivory Manufacturing Company. Li re Patent Ivory Manufacturing Company, 38 Ch. D. 162. It is said that companies have no conscience, but the liquidator of a company might as well have a conscience, when acting in the character of an officer of this Court. This Court does not allow itself to. act dishonestly, and a more thoroughly dishonest pro- ceeding than that mentioned, I cannot well imagine. 163. It was contended on their part that companies are not bound by acts of part performance, but I cannot accede to this argument. The Court proceeds in such cases on the ground of fraud, and I cann(j^.hyM ^t j^Mi^ if done by an Individual. 40 AN EXPOSITION OF ENGLISH LAW COUFAITY — continued. would amount to a fraud, ought not to be so considered if done by a company. There is authority for saying that in the eye of this Court it is a fraud to set up the absence of agreement when possession has been given upon the faith of it. (Turner, L.J.) That is a very distinct decision which, so far as I know, has never been departed from, that the rule of Equity that part performance will take a case out of the Statute of Frauds applies to an incor- porated company, and that an incorporated company which comes within that doctrine of part performance is just as much bound by it as if it were an individual. In the same case there is a sum- mary of another part of the law to which I have often had occasion to refer. Where possession has been given upon the faith of an agreement, it is I think the duty of the Court, as far as it is pos- sible to do so, to ascertain the terms of the agreement and to give effect to it. 164. When you find a company in possession of the property of another person you are bound, if you can, -to refer that possession not to tresspass but to contract, and as Turner, L.J., said in the words I have quoted, to find out, if you possibly can, what that contract is. 168. After the winding-up the liquidator took an assignment of all the rest of the property of which he could possibly get an assignment, in pursuance of the very same arrangement. Now he comes to the Court and asks the Court to say, that there never was a contract between the company and Mr. Jordan. He says, " True, I have taken from Mr. Jordan everything I could possibly get from him ; the company took an assignment of the leasehold premises which they have held ever since; I have treated all these as assets of the company, and I now turn round and say that there never was such an agreement." Such a course of conduct would be, as I have characterized it during the argument, the most flagrant dishonesty. It is saying "you shall not be paid for the property at all." I should not hold that unless I were bound by authorities very much more stringent than those which have been cited. Nor do I think that any branch of the Court would hold anything of that kind.— Kay, J. 6. Contract by Trustee for intended Company— Eatification. In re Northumberland Avenue Hotel Company, 33 Ch. D. 21. There no doubt was an agreement between a man called Nunneley who was agent for Wallis, and a man named Doyle, who described Digitized by Microsoft® BY ENGLISH JUDGES. 41 COUFANY — oontinued. himself as trustee for the compauy. But at that time the com- pany was not incorporated, and therefore it is perfectly clear that the agreement was inoperative as against the company. It is also equally clear that the company, after it came into existence, could not ratify that contract, because the company was not in existence at the time the contract was made. No doubt the company, after it came into existence, might have entered into a new contract upon the same terms as the agreement of the 24th of July, 1882, and we are asked to infer such a contract from the conduct and transactions of the company after they came into existence. It seems to me impossible to infer such a contract, for it is clear to my mind that the company never intended to make any new contract, because they firmly believed that the contract of the 24th of July was in existence, and was a binding valid contract. — Lopes, L.J. 7, SiieotoTS — ^Auditor — Secretary and Uanager — Hisfeasance — Liability. Leeds Estate, Building and Investment Company v. Shepherd, 36 Ch. D. 797. The capital of a company formed under the Act of 1862, can be legally applied only for the purposes specified in the articles of association. 798. Directors are trustees or quasi trustees of the capital of the company, and are liable, as trustees, for any breach of duty as regards the application of it. 802. It was, in my opinion, the duty of the auditor, not to con- fine himself merely to the task of verifying the arithmetical accuracy of the balance-sheet, but to inquire into its substantial accuracy, and to ascertain that it contained the particulars specified in the articles of association (and consequently a proper income and expenditure account), and was properly drawn up, so as to contain a true and correct representation of the state of the company's affairs. 805. The directors have fallen short of that standard of care which, having regard to the Oxford Case, they ought to have applied to the affairs of the company in the following respects :— (1) They never required the statement and balance-sheets to be made out in the manner prescribed by the articles; (2) They failed properly to instruct the auditor, or, at all events, to require him to report on the accounts and balance-sheets in the mode prescribed by the articles ; and (3) They were content throughout to act on the statements of Crabtree (the Secretary and Manager) LJigifized by Microsoft® 42 AN EXPOSITION OP ENGLISH LAW COMPANY — continued. without inquiry or verification of any kind other than the im- perfect audit of the accounts by Locking. Those accounts and balance-sheets did not truly represent the state of the company's affairs ; and that being so, I think that according to what is laid down in Ranee's Case, the onus is laid upon them to shew that the dividends they paid were paid out of profits. This upon the evidence before me they fail to do. 807. The several defendants who were directors at the time when these dividends were respectively paid are in my judgment jointly and severally liable for the amounts improperly paid away in each year of their directorship, and must (as in the Oxford Case) be ordered to repay such amounts with interest at four per cent. 808. I have next to consider the liability of the Secretary and Manager (Crabtree). It was his duty to prepare balance-sheets such as were required by the articles, and exhibiting a true and correct view of the state of the company's affairs. He never prepared any accounts of income and expenditure at all ; and the balance-sheets prepared by him did not and were not intended to represent truly the state of the company's affairs ; and it further appears to me that the balance-sheets were prepared for the purpose of shewing that a dividend was payable, and on the face of them treated the dividends which were actually paid as properly payable. The payment of these dividends was the natural and immediate consequence of the breach of duty on Crabtree's part, and he is liable for damages to the amount so paid. 809. Locking, the Auditor, also appears to me to have been guilty of a breach of duty to the company ... It was a breach of duty on Locking's part to certify as he did. The payment of the dividends, director's fees, and bonuses to the manager actually paid in those years appears to be the natural and immediate con- sequence of such breach of duty ; and I hold Locking liable for damages to the amount of the moneys so paid. — Stirling, J. 8. Director, gift to — Damage, measure of, Eden v. Ridsdale's Railway Lamp and Lighting Company, 23 Q. B. D. 372. The company has the option of claiming what ■ is given or its highest value whilst held by the director. — LiNDLEY, L.J. 9, Directors — Misfeasance. In re Oxfoed Benefit Building and Investment Society, 35 Digitized by Microsoft® BY ENGLISH JUDGES. 43 COMPANY— continued. Ch. D. 509. Directors are quasi trustees of the capital of the company. Directors who improperly pay dividends out of capital are liable to repay such dividends personally upon the company being wound up. Such an act is a breach of trust, and the remedy is not barred by the Statute of Limitations. — Kay, J. 10. Executors— Personal liability. Duff's Executors' Case, 32 Ch. D. 309. If once shares are put into the names of executors individually, although they have a right of indemnity against the estate, they are liable personally, with that right of indemnity, and they cannot say that their liability is to be only a liability to the extent of the assets of the testator. — Cotton, L.J. 310. No company can validly allot shares to persons who are not responsible to the extent of the whole of their property. — Fey, L.J. 11. Frandnleut Preference. Kent's Case, 39 Ch. D. 269. The company were at the time unable to pay their debts as they became due, the company was " commercially insolvent "... the whole transaction was either a sham, or a fraud, or a deceit ; and independently of legislation I should decline to give the transaction the effect of payment. — Fey, L.J. 271. It appears to me it was a transaction carried out in con- templation of the winding-up, with the view of giving a particular creditor a preference over other creditors. I think, therefore, that that transaction amounted to a fraudulent preference. — Lopes, L.J. 12. Invalid allotment of Shares — Invalid meeting. In re Poetuguese Consolidated Copper Mines, Limited, 42 Ch. D. 161. The alJotment would not have been invalid merely because the directors had not previously acquired any quali- fication by the holding of shares. — Noeth, J. 167. It is necessary that all the directors should have had notice of the meeting of the 24th. If they had not, then the meeting of the 24th was no valid meeting, and being an invalid meeting could not adjourn itself to the 26th. — Lord ESHEB, M.E. Digitized by Microsoft® 44 AN EXPOSITION OF ENGLISH LAW COMPANY — continued. 13, ' Liquidator, costs of. In re A. W. Hall & Co., 37 Ch. D. 721. I think that this is a case which has been properly brought into Court, and that there ought to be no order as to costs, except that the Liquidator will 'take his out of the assets of the company. — Stirling, J. 14, Mortgage Debenture. Boss V. Army and Navy Hotel Company, 34 Ch. D. 49. Where this Court is satisfied that it was intended to create a charge, and _ that the parties who intended to create it had the power to do so, it will give effect to the intention, notwithstanding any mistake which may have occurred in the attempt to effect it. — Turner, L. J., Kay, J. 53. If the deed had not been executed at all there would have been in the debenture itself a contract to give such a security as was intended to be given by the deed. — Cotton, L.J, 15. Preference Shares. In re Barrow Hematite Steel Company, 39 Ch. D. 591. Pre- ference shares have no priority in the distribution of assets, unless such priority is expressly provided for, Ig, Profits applied to extension of works — Bonds given in payment of Interest — TTltra vires. Wood v. Odessa Waterworks Company, 42 Ch. D. 636. A waterworks company constituted under the Companies Acts, 1862, having applied the profits which had been earned to the con- struction of productive works instead of paying a dividend to the shareholders, passed a resolution proposing to give to the share- holders debenture bonds bearing interest and redeemable at par, by an annual drawing, extending over thirty years held illegal. 17. Promoters— Respective liabilities of, for work done. In re Skegness and St. Leonard's Tramways Company, Ex parte Hanly, 41 Ch. D. 215. Those persons only who do work directly for a company in process of formation, without being employed by any one else for hire or reward, are entitled to look to the company when formed, for payment of the costs and expenses of the work of which the company has got the benefit, and those persons who are employed by any one else to do the work for hire or reward must look to the person who employed them, 18. Promoter — Secret Commission — Agent — Tmstee. Lydney and Wigpool Iron Ore Company v. Bird, 33 Ch. D. 94. It is perfectly well settled that a promoter of a company is Digitized by Microsoft® BY ENGLISH JUDGES. 45 COUFAinr — amtimted. accountable to it for all moneys Secretly obtained by him from it just as if the relationship of principal and agent or of trustee and cestui que trust had really existed between them and the com- pany when the money was so obtained. — Cotton, Lindley, and Lopes, L.JJ. 19. Prospectus — Fraud — Action of Deceit. Glasiee V. EoLLS, 42 Ch. D. 458. The Court is to be governed by the old rules as to an action of deceit, so that to make the defendant liable two things are necessary, the statement must be false and must be made dishonestly , . . The burden of proof is on the plaintiff; he charges the defendant with fraud, and he must prove it ; the burden does not lie on the defendant of proving that he made the statement honestly. Before going further I will say that unless fraud is very clearly to be inferred from the documents and the facts proved, we ought not to find the defendant guilty of fraud if the judge below has not done so. — Cotton, L.J. 20, Besolution necessary to bind. See Compromise. 21, Shares — Kectiflcation of Register. In re Eailway Time Tables Publishing Company. Ex parte Sandys, 42 Ch. D. 113. As soon as she assented to being put on the register in respect of these shares, the law, independently of contract, threw upon her the liability of paying off the whole £5 which was the nominal amount of these shares . . . She is not entitled to be relieved from that assent and the implied contract arising therefrom, simply because she made a mistake as to the general law of this country. — Cotton, L.J. 22. Transfer of Shares. The Queen v. Lambouen Valley Eailway Company, 22 Q. B. D. 466. A transfer will be upheld, though made to a mere pauper for the avowed purpose of relieving the transferor from any future liability.— Pollock, B. 23 Voluntary Liquidator— Provisional liquidator— Carrying on Business for benefit of Winding-up. In re Dby Docks Coepoeation op London, 39 Ch. D. 309. What is the object of appointing a provisional liquidator under a petition which asks for a winding-up? The object is to keep things in mtu S%i§^^e^8F§W^olA'^^ ^'""^ ^'**^°^ P"°"*^' 4(5 AN EXPOSITION OP ENGLISH LAW COMPANY — continmd. It has, no doubt, been held again and again that if a company during the winding-up retains possession of its premises, and rent or rates become due in respect of these premises while the com- pany is in possession and is using them for the benefit of the creditors in the winding-up, any rent or rates which become due during that period ought to be paid in full, because, practically, the company in the winding-up is a tenant and is using the land- lord's property, or incurring rates which are due in respect of that property, for the very purpose of benefiting the creditors who are winding-up. Now, is that the case where there is a provisional liquidator ? I do not think it is so altogether. The provisional liquidator does not necessarily carry on the business for the purpose of winding-up. He cannot wind up ; he cannot sell the property ; he cannot get rid of it. He is only put in to prevent people from obtaining priority, and in no true sense can he be said to carry on the business of the company or to hold the property for the purposes of the winding-up. — Kay, J. 312. The appointment of a provisional liquidator was for the purpose of protecting the property with a view to the winding-up of the company. It was only by this appointment that these goods were protected, and, if a winding-up order had been made on the petition, these rates would have been paid as part of the expenses incurred for the purpose of winding up the company. — Cotton, L.J. 24. Winding-up— Debenture-holders— Appointment of Eeoeiver by— Official liqui- dator. In re Henky Pound, Son, and Hutchins, 42 Ch. D. 411. The official liquidator is an officer of the Court ; he is practically in the position of a receiver appointed by the Court, and it would be a contempt of Court for any one to interfere in any way with his possession without the leave of the Court. Therefore, before these mortgagees can put their receiver into possession, they must obtain the leave of the Court ... If these debenture-holders had brought their action, and in that action asked for the appointment of a receiver, after the Court had appointed an official liquidator, the Court would appoint the official liquidator their receiver, and would not appoint another receiver. That has been for a long time the settled practice of the Court. One ground for that is that the Court would not go to the expense of having two receivers at the same time, one for the ordinary creditors of the company^ Digitized by Microsoft® BY ENGLISH JUDGES. 47 COMPANY — Bontinued. the official liquidator — and the other over his head for the mort- gagees ; and another reason is that, where an official liquidator has been appointed, it is his duty to guard the interests of the mortgagees just as much as those of any other class of creditors, and unless there were a conflict between the interests of the mort- gagees and those of other creditors (and nothing of the kind is here suggested), there would be no reason in the world why an additional receiver to the liquidator should be appointed. — Kay, J. 25. Winding-up — Liqnidator. In re Adam Eyton, Limited. Ex parte Chaeleswoeth, 36 Ch. D, 305. A liquidator, when he is appointed, is not the less appointed because he has not, at the time the appeal comes on, perfected his right to act by giving security.— Bowen, L.J. 26. -— ' Winding-up — Salary of Managing Director — Solicitor. In re Dale and Plant, Limited, 43 Ch. D. 258. Suppose this case was that of a solicitor, as a man specially trained in a peculiar business which is of great importance to the community, and that such solicitor happened to be a member of a company, and sent in his bill of costs for business done for the company. In the winding-up of the company could it be said that the solicitor should not prove in competition with the other creditors because he was a shareholder ? Obviously that proposition could not be maintained for a moment. — Kay, J. COMPENSATION. See Election. 1. Land Clauses Consolidation Act, 1845. 3. Land Clauses Consolidation Act, 1845. 4. Eailway Company. 6. COMFSOMISE — Consideration — Company. Miles v. New Zealand Alpoed Estate Company, 32 Ch. D. 284. If we are to infer that the plaintiff believed that some money was due to him, his claim was honest, and the compromise of that claim would be binding and would form a good considera- tion, although the plaintiff, if he had prosecuted his original claim, would have been defeated. — Lobd Blackbuen ; Cotton, L.J. 2.86. To bind the Company there ought to be something done by way of a resolution. — Cotton, L.J. Digitized by Microsoft® 48 AN EXPOSITION OF ENGLISH LAW- CONDITIONS 07 SALE. See Vendor and Purchaser. 3. Vendor and Purcha-ser. 6. CONFIDENTIAL INFORMATION. See Master and Servant. 1. CONFLICT OF LAWS. 1. Lee v. Abdy, 17 Q. B. D. 312. The validity and incidents of a contract must be determined by the law of the place where it is entered into. — Day, J. 2. Lex Loci contractus — Intention of Parties. In re Missouri Steamship Company, 42 Ch. D. 321. When a contract is made in one country to be performed wholly or par- tially in another, prima facie the contract is to be construed and enforced according to the lex loci contractus. But the Court will look at aU the circumstances, to ascertain by the law of which country the parties intended the contract to be governed, and will enforce the contract accordingly, unless it should contain stipu- lations contrary to morality or expressly forbidden by positive law. — Lord Halsbuey, L.C. ; Cotton and Fey, L.JJ. CONFUSION OF BOTTNDABIHS. See Eent Charge. OONSIDEBATION See Compromise. CONSOLIDATION. See Mortgage. 3. CONSFIBACT. 1. Combination. Mogul Steamship Company v. McGregor, Gow and Company, 21 Q. B. D. 550. If the object were unlawful, or if the object were lawful but the means employed to effect it were unlawful, and if there were a combination either to effect the unlawful object or to use the unlawful means, then the combination was unlawful, then those who formed it were misdemeanants, and a person injured by their misdemeanour has an action in respect of his injury. 552. The acts done by the defendants here, if done wrong- fully and maliciously, or if done in furtherance of a wrongful and malicious combination, would be ground for an action on the case at the suit of one who suffered injury from them. Digitized by Microsoft® BY ENGLISH JUDGES. 40 CONSPIRACY— cojittnaed. 553. It is said that the motive of these acts was to ruin the plaintiffs, and that such a motive, it has been held, will render the combination itself wrongful and malicious, and that if damage has resulted to the plaintiffs an action will lie. I concede that if the premises are established the conclusion follows. — Lord Cole- EIDGE, C.J. 2, Combination. Mogul Steamship Company v. MaoGkegob, Gow and Company, 23 Q. B. D. 613. Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong. — Bowen, L.J. 614. What, then, are the limitations which the law imposes on a trader in the conduct of his business as between himself and other traders ? There seem to be no burdens or restrictions in law upon a trader which arise merely from the fact that he is a trader, and which are not equally laid on all other subjects of the Crown. His right to trade freely is a right which the law recognises and encourages, but it is one which places him at no special disadvantage as compared with others. No man, whether trader or not, can, however, justify damaging another in his com- mercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are forbidden ; so is the intentional procurement of a violation of individual rights, contractual or other, assuming always that there is no just cause for it. The intentional driving away of customers by show of violence ; the obstruction of actors on the stage by preconcerted hissing ; the disturbance of wild fowl in decoys by the firing of guns ; the impeding or threatening servants or workmen; the inducing persons under personal contracts to break their contracts : all are instances of such forbidden acts. — Bowen, L.J. 618. Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question, Was it done with or without "just cause or excuse"? If it was lona jide done in the use of a man's own property, in the exercise of a man's own trade, such legal justification would, I think, exist not the less because what was done might seem to others to be selfish or unreasonable. . -.. . .^ul sucLleo-aliustification would not exist 50 AN EXPOSITION OP ENGLISH LAW COTHSVIHA-CT— continued. ,) when the act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own rights. — Bowen, L. J. 620. Competition however severe and egotistical, if unattended by circumstances of dishonesty, intimidation, molestation, or such illegalities as I have above referred to, gives rise to no cause of action at common law. — Bowen, L.J. 624. " The crime of conspiracy," said Tindal, O.J. — speaking; for the judges attending the House of Lords in O'Connell's Case — " is complete if two, or more than two, should agree to do an illegal thing ; that is, to effect something in itself unlawful, or to effect by unlawful means, something which in itself may be indifferent or even lawful." "A conspiracy," said Willes, J., "consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means." In all cases, therefore, a con- spiracy is an agreement to do an unlawful act, — Fey, L.J. 628. The combination, if in restraint of trade, is prima facie, void only and not illegal ; no statute in force makes such com- petition criminal ; and the policy of our law, as at present declared by the Legislature, is against all fetters on combination and competition unaccompanied by violence or fraud, or other like injurious acts. — Fry, L.J. CONSTEirCTION— ACT OF PAEIIAMEHT. 1. NOETHCOTE V. OWNEES OP THE HeNEICH BjOEN. ThE HeNEICH Bjoen, 11 App. Cas, 281. Where the Legislature in its laws, or parties in their agreements, might have expressly stated a particular intention and have not, that intention ought not to be implied, and the law or agreement dealt with as if the intention were expressed, without the most cogent considerations amounting almost to a necessity. — Loed Beamwell. Salmon v. Duncombe, 11 App. Cas. 634. It is a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. — Loed Hobhouse. 3. .Netheeseal Collieey Company v. Bouene, 14 App. Cas. 242. It seems to me that if your Lordships were to sustain this . con- Digitized by Microsoft® BY ENGLISH JUDGES. ' '$1 COTHBTCLVCTlOH—cmtinued. struction the proceedings of the statute would be rendered nugatory. — Lord Hebsohell. 4. Kailton v. Wood, 15 App. Cas. 367. Where there are two con- structions, the one of which will do, as it seems to me, great and unnecessary injustice, and the other of which will avoid that injustice and will keep exactly within the purpose for which the statute was passed, it is the bounden duty of the Court to adopt the second and not to adopt the first of those constructions. — LoKD Caiens, Lord Field. 5. Cox V. Hakes, 15 App. Cas. 518. " From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded on the intent of the Legislature, which they have collected sometimes by con- sidering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter and according to that which is consonant to reason and good discretion." — Loed Halsbdby, L.C. 540. "Qtiando lex aliquid alicui concedit, coneedUur et id sine quo res ipsa esse non potest." Whenever anything is authorized to be done by law and it is impossible to do that thing unless something else not authorized by express terms be also done, then that something else will be supplied by necessary intend- ment. — LOED MOEEIS. 542. The admitted rules of construction, from which I am not at liberty to depart, lay down that I. cannot infer an intention contrary to the literal meaning of the words of a statute, unless the context, or the consequences which would ensue from a literal interpretation, justify the inference that the legislature has not expressed something which it intended to express, or unless such Digitized by Microsoft® ^ 2 52 AN EXPOSITION OF ENGLISH LAW COTXSTRVCnQ'S— continued. interpretation leads to any manifest " absurdity or repugnance," with this superadded qualification that the absurdity or repugnance must be such as manifested itself to the mind of the law-maker, and not such as may appear to be so to me. — Lobd Field. 6. Melliss v. Shiklet Local Board, 16 Q. B. D. 451. Although a statute contains no express words making void a contract which it prohibits, yet when it inflicts a penalty you must consider whether the penalty is imposed with intent merely to deter persons from entering into the contract, or for the purposes of revenue, or whether it is intended that the contract shall not be entered into so as to be valid at law. — Loed Esheb, M.E. 7. LiGfeTBOUND V. HiGHEB BeBINGTON LoCAL BoAED, 16 Q. B. D. 584. There is a broad rule of construction : in construing the words (of an Act of Parliament) you must look at the subject- matter of the section and see what is its scope and object. — BOWEN, L.J. 8. Ex parte Fox. In re Smith, 17 Q. B. D. 10. This is doing some violence to the language of the Act, but it seems to me that it is most in accordance with the spirit of it. — Cave, J. 9. — In re Mackenzie, 17 Q. B. D. 116. By the true rule of con- struction of Acts of Parliament we must give the words used in them their plain meaning unless the context would render such construction manifestly absurd. — Geove, J. 117. I do not think we can make small amendments of Acts of Parliament by construing them against their natural sense. — Stephen, J. 10. Lea v. Facey, 17 Q. B. D. 146. It is impossible to deal with the questions raised in this case without getting more or less into subtleties whichever way it is looked at. — Wills, J. U. Ex parte Blanchett. In re Keeling, 17 Q. B. D. 307. When it is suggested that a liberal interpretation should be given to the words of a statute, the Court ought to consider what is the class of statute in which the words are found. A liberal interpretation Digitized by Microsoft® BY ENGLISH JUDGES. 53 COTHSI^VCTIO^— continued. ought not rightly to be given to any clause of a statute whiclj entails penal consequences on any person. — Bowen, L.J. 12. Loughborough Highway Boaed v. Cukzon, 17 Q. B. D. 349. Section 18 has not, nor has any part of it, been in terms repealed, and, according to the recognised rule of construction, it cannot be held to have been repealed by implication, unless the steps which are to be taken under the Act of 1878 are wholly inconsistent with the provisions of section 18. — LoED Eshee, M.R. 351. When the legislature gives a new remedy for an existing right, the old remedy is not taken away, unless the legislature have expressly said so, or unless the new remedy is inconsistent with the old one. — Fey, L.J. 13. CoLQUHOTJN V. Beooks, 21 Q. B. D. 65. The maxim " Expressio wiius, exdudo cdterius" has been pressed upon us. I agree with what is said in the Court below by Wills, J., about this maxim. It is often a valuable servant, but a dangerous mastei: to follow in the construction of statutes or documents. The exclusio is oftea th^. result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject* matter to which it is to be applied, leads to inconsistency or injustice. — Lopes, L.J. 14. The Queen v. Commissionees of Income Tax, 22 Q. B. D. 309. Words of a statute are to be taken in their primary, and not in their secondary signification. If therefore the words are popular ones they should be taken in a popular sense, if words of art they should he prima facie taken in their technical sense.-— Fey, L.J. 15. ^ . The Queen v. Bishop of London, 23 Q. B. D. 429. In construing an Act of Parliament the intention of the legislature is the point to be ascertained, and it must be collected from the whole of the provisions in the statute which bear upon the question. A thing which is within the letter of a statute is not within the statute unless it be within the intent of the legislature.— J^ANISTYj .J. Digitized by Microsoft® 54 AN EXPOSITION OF ENGLISH LAW CO^STB.VCriO^— continued. 16. In re ^bockelbank. Ex parte Dunn and Raebuen, 23 Q. B. D. 463. The Court has over and over again acted upon the view that the legislature could not have intended to produce a result which would be palpably unjust, and would revolt the mind of any reasonable man, unless they have manifested that intention by express words. — Lord Eshee, M.E. 17. Act of Parliament and Bnles. SiBUN V. Peakce, 44 Ch. D. 370. The question turns really upon the true construction of this rule taken in connection with the Act of Parliament. You may construe a rule by reference to the Act or Parliament, but you can hardly construe an Act of Parlia- ment by reference to a rule ; and if rule 18 does conflict with the Act of Parliament, so much the worse for the rule, not so much the worse for the Act of Parliament. — Lindley, L.J. See Comity of Nations. Statutes, Constructions of. CONSTRTJCTION— CONTEACT. See Contract. 1. dONSTBUCTION— DEED. 1. In re De Eos' Trust. Hardwicke v. Wilmot, 31 Ch. D. 88. It is very plain law that if you can find that which amounts to an agreement within the four corners of a deed, it is as binding as a covenant expressed in the most apt possible words. — Kat, J. 2. Inconsistency between Beoitals and Operative Fart, Ex parte Dawes. In re Moon, 17 Q. B. D. 286. There are three i-ules. If the recitals are clear, and the operative part is am- biguous, the recitals govern the construction. If the recitals are ambiguous, and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are clear, but they are inconsistent with each other, the operative part is to be preferred. 288. The recitals are perfectly clear and unambiguous; the operative part is ambiguous. Therefore, the recitals must prevail. —Lord Esher, M.R. 3. General Words. Thames and Mersey Marine Insurance Co. v. Hamilton, Fraseb & €o.,> 12 App. Cas. 490. Words, however general, may be limited with respect to the subject-matter in relation -to which Digitized by Microsoft® BY ENGLISH JUDGES. 55 CONSTSTTCTION— DEED— oontinaed. they are used. , . . Greneral words may be restricted to the same genus as the specific words that precede them. — Lobd Halsbuky, L.C. consthtrctioh— will. /See Will. 3. Will. 4. Will. 6. COirrEMPT 0? COUBT. 1, Nevspaper — Fine. In re Crown Bank. In re O'Malley, 44 Ch. D. 651. When, with notice that the petition had been presented, the newspaper de- liberately took one side of the controversy, and took on itself to foretell what the result would be; in my opinion there was a gross contempt of Court. . . . Nothing is more incumbent upon Courts of Justice than to preserve their proceedings from being misrepresented, nor is there anything of more pernicious con- sequence than to prejudice the minds of the public against persons concerned, as parties in causes before the cause is finally heard. It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought . to be discountenanced. — North, J. 2. Punishment. In re Maria Annie Da vies, 21 Q. B. D. 239. Under the Debtors Act of 1869, the power to imprison for disobeying the order of the Court, even in the case of grave delinquency on the part of the trustee, is restricted to a period of twelve months. Under the County Courts Act (9 & 10 Vict. c. 9.5, s. 113), im- prisonment for contempt must be for a definite period only, not exceeding seven days. — Mathew, J. See Appeal. 4. COiraiNGENT TITLE—" Spos successionis "— " Nemo est hseres viventis." - In re Parsons, Stocklet v. Parsons, 45 Ch. D. 55. It is indis- putable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir-at-law, or next-of-kin, of such living person. During the life of such person, no one can have more than a " spes successionis" an expectation or hope of succeeding to his property. The law is the same where there is a limitation by will or settle- Digitized by Microsoft® 56" AN EXPOSITION OP ENGLISH LAW CONTINGENT TITLE— oon«i««e(J. ment of real or personal property to the heir, or statutory next-of- kin of a living person. During his life no one can say " I have a contingent estate or interest as possible heir or next of kin," just as in the first case no one can have more than an expectation or hope of being heir or next-of-kin. 57. The statute, 8 & 9 Vict. c. 106, s. 6, made a possibility coupled with an interest assignable at law, but not a mere possi- bility. 63. "Nemo est hseres viventis" should be construed literally. There is no such character in law as the heir of the living person, or as his statutory next-of-kin. There is a wide difference, for this reason, between a gift to such of the "children " or "nephews," or even " kindred " of A. who shall be living at his death, and a gift to those who shall then be his statutory next-of-kin. During A.'s life, there may be children, nephews, or kindred. Each of them has probably sufficient interest, though contingent, to take proceedings to protect the fund : see per Lord Hatherley in Joel V. Wills. Some, or all of them, might be made defendants in an action to administer the trusts. Neither of these things can be done where the gift is to statutory next-of-kin. They have no existence whatever in law, while the "propositus" is living. No one can, as possible next-of-kin, even bring an action to perpetuate testimony as to his kinship during that period. — Kay, J. CONTBACT. 1, Constmotion. Tancked Akkol & Co. v. Steel Company of Scotland, 15 App. Cas. 136. The next point insisted upon is, that we can cut down and override this contract, and the language in which it is con- ceived by some sort of custom ... I think the principle is the same in both countries. You may translate the words of a contract ; you cannot vary or alter it. — Lobd Halsbuky, L.C. 2. Joint — Bes Judicata. Cambefort V. Chapman, 19 Q. B. D. 232. The principle of the maxim " nemo debet lis vexari " applies not only to the case of one individual being sued twice for the same cause of action, but also to the case of a person suing twice on the same contract. — Field, J. 233. A judgment recovered against one of several joint makers or joint acceptors, though without satisfaction, is a good defence to an action against the others. — Byles, J., Manisty, J. Digitized by Microsoft® BY ENGLISH JUDGES. ' 5T CaSTRACT— continued. 3. Joint and Several. In re Pakkek. Ex parte Sheppaed, 19 Q. B. D. 87. Trustees are held to undertake jointly and severally for the performance of their duties.^BRAMWELL, L.J., Cave, J. 4. Misrepresentation. Newbigging V. Adam, 34 Ch. D. 593. According to the decisions of Courts of Equity, it was not necessary in order to set aside a contract obtained by material false representation, to prove that the party who obtained it knew at the time when the representa- tion was made that it was false. It was put in two ways, either of which was sufficient. One way of putting the case was, " A man is not to be allowed to get a benefit from a statement which he now admits to be false. He is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false ; he ought to have found that out before he made it." The other way of putting it was this, " Even assuming that moral fraud must be shewn in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquency ; no man ought to seek to take advantage of his own false statements." — BOWEN, L.J. 5. Estoppel. BlEMINGHAM AKD DISTRICT LaND CoMPAHY V, LONDON AND NOETH Westeen Eailwat Company, 40 Ch. D. 281. If parties who have entered into definite and distinct terms involving certain legal results,- afterwards by their own act, or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights wiU not be allowed to enforce them where it would be inequitable. — Lindley, L.J. 286. If persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe that such rights will either not be enforced or will be kept in suspense or abeyance for some particular time, those persons will not be allowed by a Court of Equity to enforce the rights until such time has elapsed, without at all events placing the parties in the same position as they were before.— JBOWEN, L.J. Digitized by Microsoft® 58 AN EXPOSITION OP ENGLISH LAW COXTBACT — omtinued. 6. Fraud. The Quben v. Clarence, 22 Q. B. D. 27. In respect of a contract, fraud does not destroy the consent. It only makes it revocable. — ^WlLLS, J. 7, Threats of Giiminal Proceedings — ^What heldio lie evidence of. LouND V. Geimwade, 39 Ch. D. 605. See Company. 5. Conflict of Laws. 1. Conflict of Laws. 2. Principal and Agent. 3. Eepudiation of a Contract. CONTBACT BY CEOWN. See Petition of Eight. CONTBACT BY LETTEES. See Vendor and Purchaser. 8. Vendor and Purchaser. 9. CONTBIBTJTIOir. The "Beknina," 12 P. D. 90. There is no contribution among wrong-doers. — Lindlet, L.J. CONTBIBTITOEY NEBIIGENCE. See Master and Servant. 6. Negligence. 1. CONVENT. See Undue Influence. COFYEOLS ACT, 1887. COFYHOLDS. 2, Confasion of boimdaries. Seaele V. Cooke, 43 Ch. D. 530. It is the duty of a copyhold tenant to preserve the boundaries of his tenement, and if he does not do so, both he and all claiming under him are answerable. — Cotton, L.J. 531. In the present case there was an enfranchisement in 1880, and the copyhold tenure then came to an end, but it was put an end to subject to these rent-charges. What was the effect of this enfranchisement ? It was agreed that it put an end to all duty on the tenant to preserve the boundaries. — Cotton, L.J. 534. When the enfranchisement was completed, the relation between the lord and the tenant was severed, and if the boundaries Digitized by Microsoft® BY ENGLISH JUDGES. 69 CQFTKOLJiB— continued. had become confused afterwards, I do not think the old obligation would have remained, but the lord would have lost his right. — LiNDLET, L.J. 535. So far as the future is concerned, no doubt the tenant is free from all the obligations and incidents of copyhold tenure, but as to the past, the enfranchisements did not destroy any rights which had then accrued to the lord. — Lopes, L. J. 2, Fines. Hall v. Beomley, 35 Clx. D. 655. As a general rule, .there is no £ne payable except in the case of admittance. There are, of course, exceptions to that general rule, but it is not necessary to refer to them in reference to this case. Admittance, and the right to admittance, depend upon the legal estate, and the lord can look at that only, and has nothing to do with any equitable devolution of title. — Lindley, L.J. COPYEIGHT. 1, Author. Keneick & Co. V. LAweence & Co., 25 Q. B. D. 106. Mr. Jeffer- son is registered as the author of the drawing. It seems to me he was not the author. ... It may possibly be that Mr. Jefferson and Mr. Bott were joint " authors " of the drawing ; but I cannot understand how the man who did all that was done in the way of drawing can be excluded from all participation in the authorship of the thing drawn by him. — Wills, J. 2, Infringement — Dramatization of Novel. Waene & Co. V. Sebbohm, 39 Ch. D. 81. So long, therefore, as he does not print or otherwise multiply copies of the novel, any person may dramatize it, and may cause his drama to be publicly represented. But if, for the purpose of dramatization, he prints or otherwise multiplies copies of the book, he violates the rights of the author no less than if the copies were made for gratuitous distribution. — Stieling, J. 3, Implied Contract — Breach of Faith. PoLLAED V. Photogeaphio Oomeany, 40 Ch. D. 349. "Where a^ person obtains information in the course of a confidential employ- ment, the law does not permit him to make any improper use of the information so obtained, and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a . clerk .from disclosing his master's accounts, or an attorney from Digitized by Microsoft® 60 AN EXPOSITION OF ENGLISH LAW COPYEIGHT— contmiietJ. making known his client's affairs learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. 352. Again, it is well known that a student may not publish a lecture to which he has been admitted, even though by his own skill he has taken a copy of it in shorthand, and the receiver of a letter may not publish it without the writer's consent, though the property in the paper and writing is in him, and many similar instances might be given. — North, J. 4. LectTires in Class-room by Professor. Caied V. SiME, 12 App. Cas. 338. Where a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon in a church, the doors of which are thrown open to all mankind, the mode and manneri of publi- cation negative, as it appears to me, any limitation. — Lord Halsbuey, L.C. 345. I do not think it can be disputed that, as stated by Lord Shand, this is the first occasion in the history of the Scottish universities on which any such right as that now claimed has been asserted. If the claim be well founded, there can be no copyright in a lecture which has been once delivered in the class-room. — Lord Watson. 5, Newspaper — Libel and Begistration Act, 1881. Gate v. Devon and Exeter Constitutional Newspaper Company, 40 Ch. D. 503. There is copyright in a newspaper as a sheet of letter-press. 504. There is no section in this Act providing that until a newspaper has been registered there shall be no right of action in respect of it. In the Copyright Act that provision is clear and precise. 506. Eegistration is only necessary as a condition precedent to suing. The almost universal practice on the part of large publishers notoriously is that they do not register until just on the eve of taking some proceeding. — North, J. 6. Works of Art. Kenrick & Co. V. Lawrence & Co., 25 Q. B. D. 103. As for the manner of treating the subject, there can be no copyright in that ; for if the thing to be represented be represented at all, it is impossible to treat it in any other way. It seems to me, therefore, that although every drawing of whate\fer kind may be entitled to Digitized by Microsoft® BY ENGLISH JUDGES. 61 COPYRIGHT— oontinuei. registration, the degree and kind of protection given must vary greatly witk the character of the drawing, and that with such a drawing as we are dealing with, the copyright must be confined to that which is special to the individual drawing over and above the idea ; in other words, the copyright is of the extremely limited character which I have endeavoured to describe. A square can only be drawn as a square, a cross can only be drawn as a cross, and for such purposes as the plaintiffs' drawing was intended to fulfil, there are scarcely more ways than one of drawing a pencil or the hand that holds it. If the particular arrangement of square, cross, hand or pencil be relied upon, it is nothing more than a claim of copyright for the subject, which, in my opinion, cannot possibly be supported. — Wills, J. COBONEBS ACT, 1887. COBFOBATIOK. See Malicious Prosecution. Service of Writ. 1. COBBITPT PEACTICE. See Criminal Law. 3. tiosxs. 1. Jn re Bombay Civil Fund Act, 1882. Peingle v. Secret aey op State fob India, 40 Ch. D. 289. A Court which is put in motion wrongly has inherent jurisdiction to compel the person who puts it in motion wrongly, and who brings an innocent party to answer an unfounded claim or an unjustifiable proceeding, to pay the costs. — Bowbn, L. J. 2. Separate Defences. BoswELL V. Coaks, 36 Ch. D. 447. According to the ordinary rule of the Court these six defendants are entitled to have separate costs of defending. To that rule there is an exception; in the case of co-trustees not acting together, but severing in their defences, a practice exists of not allowing separate sets of costs unless the Court gives a direction that that should be done. . . . Every defendant had a right to appear by a separate solicitor, but what the Court said was that if the defendants were co-trustees, or appeared by the same solicitor, they should not necessarily have the costs of a separate appearance.— Nokth, J. Digitized by Ivlicrosoft® 62 AN EXPOSITION OF ENGLISH LAW COSTS—continued. 3. In County Court. In re DoD, Longstafpe, & Co. Ex parte Lamond, 21 Q. B. D. 244. The new Rules of 1886 were, I think, intended to prevent solicitors in cases of small claims recovering from their clients any more than the very small costs allowed by the scale. — Wills, J. 4. Action on TTntazed Bill — Form of Order. LuMLEY V. Bbooks, 41 Ch. D. 323. 5. Appeal — Stay of Proceedings. Attoeney-G-enekal V. Emerson, 24 Q. B. D. 56. The Coui-t has a discretion as to refusing a stay of proceedings, unless the respondent's solicitor gives an undertaking to repay the costs paid by the appellant in the event of the appeal being successful. — LoBD EsHEE, M.E., LiNDLBY and Lopes, L.JJ, 6. Costs of Counter-claim. Amon V. BoBBETT, 22 Q. B. D. 543. 7. Depriving party of, for " good cause." Huxley v. West London Extension Eailway Company, 14 App. Gas. 32. Everything which increases the litigation and the costs, and which places upon a party a burden which he ought not to bear in the course of that litigation, is perfectly good cause for depriving the other party of his costs. — Loed Hals- BDEY, L.C. 33. These words "for good cause" at all events embrace, in my opinion, everything for which the party is responsible, con- nected with the institution or conduct of the suit, and calculated to occasion unnecessary litigation and expense. — Lord Watson. 8. Bisbursements. In re Lamb, '23 Q. B, D. 6. What are "disbursements" which are properly included in a solicitor's bill : they are payments made by him, not as agent, but when acting in his character of solicitor : e.g., Court fees, counsel's fees, stamps on conveyances, probate duty, &c. — Pollock, B., and Manisty, J. 9. Discretion of Judge — Exceptions. Chaeles V. Jones, 33 Ch. D. 83. 10. Evidence procured before Trial. Windham v. Bainton, 21 Q. B. D. 201. If the costs and expenses of procuring evidence were properly and reasonably incurred, I think it makes no difference that they were incurred before notice of trial. — Manisty, J. Digitized by Microsoft® BY ENGLISH JUDGES, 63 COSTS — continued. 11, Joint Defendants severing Pleadings. Stumm V. Dixon, 22 Q. B. D. 533. In my opinion tlie true rule is this: When an action is tried against two or more defendants, and any defendant separates in his defence, and the judgment is against all, the law is that each of them is liable for the damages awarded by the judgment, and each of them is liable to the plaintiff for all costs taxed on his behalf as properly incurred by him in the maintenance of his action, except as to costs caused to him by so much of the separate defence of any defendant as is, and can only be, a defence for that defendant as distinguished from other defendants. With regard to such costs so caused to the plaintiff, he is entitled by law to recover them against that defendant alone who has so caused him to incur them. — LoBO ESHEB, M.E. 12, Of Mortgage. See Mortgagor and Mortgagee. 4. 13, Security for — ^Insolvent Plaintiff— Poverty. CoWELL V. Tayloe, 31 Ch. D. 38. The general rule is that poverty is no bar to a litigant ; that, from time immemorial, has been the rule at Common Law, and also, I believe, in Equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. There is also an exception introduced in order, to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow. The two most familiar classes of cases of this kind are cases where a person has divested himself of his interest and handed it over to some one else that the transferee may sue for him, and cases where a person who has commenced a suit divests himseK of his interest during the course of the suit in order that another person may carry it on for his benefit. — BoWEN, L.J. 14, Solicitors' Eemnneration Act, 1881. Pakkek V. Blenkhokn. Newbould v. Bailwaed, 14 App. Cas. 7. Eemnneration is to be allowed for work to which the scale, does not apply.-L0R^H^L|BnEY^C.^^^^ 64 AN EXPOSITION OF ENGLISH LAW COSTS— continvM. 16. Solicitors' Bemuneration Aot, 1881— Business connected with lease— Abortive Negotiations. In re Maetin (a Lunatic), 41 Ch. D. 381. The solicLfcor is entitled to remuneration for an abortive negotiation under rule 2 (c) of General Order, in addition to scale charge in respect of a lease subsequently completed by him. 386. I think it would be wrong, if there was a negotiation entirely at an end before the fresh negotiation had begun with the person to whom the lease was granted, that there should be no claim for the business done in respect of the completed negotia- tion which led to no lease, and therefore which did not come in any way within the schedule to which I have referred. ... If we extended those cases to these negotiations the solicitor would get no payment at all for the trouble and business he had undertaken between the parties. — Cotton, L.J. 16. Taxation — Claim and Counter-claim — Common Items. Shrapnel v. Laing, 20 Q. B. D. 338. The claim is a cause of action by itself; the counter-claim is another and independent cause of action to be treated as if the claim did not exist. . . . The costs of the claim are to be taxed as though the claim were an action by itself. . . . The costs of the action belong to the plain- tiff, but they are to be diminished by the costs of those issues on which he has failed. . . . The costs of the counter-claim must be taxed as though it were a wholly independent action. The costs of that action should be given to the defendant, subject to his losing the costs of those issues of the counter-claim on which he has failed. The taxing master will then have two sums, and his allocatur should be made for the balance. . . . Although the claim and counter-claim are to be treated as independent actions, the means of arriving at a conclusion on each may be common to both. . . . One brief is treated by the taxing-master as two, so much of it as relates to the claim and its issues will belong to the claim, so much as relates to the counter-claim and its issues will belong to the counter-claim. In the same way one fee on the brief will be treated as two fees. . . . The meaning of the expression " common items " is, items in respect of which both parties get the advantage. There must.be very few of such items ; it may be doubted whether there are more than two. Perhaps the cost of the writ ought so to be divided. ... It is suggested, too, that the same principle may apply to a summons for interrogatories. LOKD ESHEK, M.R. Digitized by Microsoft® BY ENGLISH JUDGES. 65 COSTS — continued. 17. Taxation — Bill delivered more than twelve months. In re Paek. Cole v. Park, 41 Ch. D, 326. As no special circum- stances alleged, taxation could not be ordered, but specific items may be inquired into. See Land Clauses Consolidation Act, 1845. 2. Separate Actions. Solicitor. 5. C0TTAG£ eABsmrs. See Allotments and Cottage Gardens Compensation for Crops Act, 1887. COUNCILS. See Ecclesiastical Law. 4. COTTHSEL. 1. Authority o£ Matthews v. Munstbe, 20 Q. B. D. 143. Until counsel's authority- is withdrawn, he has, with regard to all matters that properly relate to the case, unlimited power to do that which is best for his client. — LoBD Eshbb, M.K. 2. Authority to Compromise. Lewis v. Lewis (45 Ch. D. 281), Matthews v. Munstee (20 Q. B. D. 141), distinguished. COUNTEB-CIAIK. See Costs. 6. COTTNTY COUNCIL. See Highway. 2. Local Government Act, 1888. COUNTY COUNCILS— Their Constitution and Powers. See Local Government Act, 1888. COUNTY COUET. Cuetis V. Stovin, 22 Q. B. D. 519. Action for sum between £50 and £100 must be commenced in High Court.— Loed Eshee, M.E. 2. LuMB V. Teal & Co., 22 Q. B. D. 680. Judges' notes must be produced on appeal, or explanation of non-production given. COUNTY COURTS ACT, 1888. To consolidate and amend the County Courts Acts. Digitized by Microsoft® f 66 AN EXPOSITION OF ENGLISH LAW COUNTT EIECTOBS ACT, 1888. To provide for the Qualification and Eegistration of Electors for the purposes of Local Government in England and Wales. COUNTY VOTE. See Parliament. COVENANT BirNNING WITH LAND. See Public-house. COVENANTS IN LAW. See Implied Warranties. CREDITOR'S DEED— Resulting Trust. Cooke v. Smith, 45 Ch. D. 46. There is no trust of the surplus expressed in the deed, but when property belongs to people who are indebted, and they assign it for the purpose of paying their creditors, if those creditors are paid, then, in my opinion, there is a resulting trust. — Cotton, L.J. 49. We find no recital indicating an intention to sell the busi- ness ; we find no recital indicating any intention to give up all interest in the business to the creditors by way of accord and satisfaction of their debts; but we find an assignment in the usual terms.— BowEN, L.J. [Eeversed [1891] A. C. 297.] CRIMINAL LAW. 1. The Queen v. Clarence, 22 Q. B. D. 32. A new field of extortion may be developed, and very possibly a fresh illustration afforded of the futility of trying to teach morals by the application of the criminal law to cases occupying the doubtful ground between immorality and crime, and of the dangers which always beset such attempts. — Wills, Ji 2. Blow aimed at one Person accidentally wounding another. The Queen v. Latimee, 17 Q. B. D. 361. We are of opinion that this conviction must be sustained. It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing on unlawful act, and has that which the judges call general malice, and that is enough. — Lord Cole- ridge, C.J. 3^ Description of Offence. The Queen v. Steoulgee, 17 Q. B. D. 330. The indictment is bad on the ground that no offence is therein stated with anything Digitized by Microsoft® BY ENGLISH JUDGES. 67 CBIMINAL tAW—r.(mtinued. like reasonable certainty. There is no such specific offence known to the law as a corrupt practice. — Day, J. 331. The real objection is on the ground of multifariousness. — Mathew, J. 331. After verdict the imperfect statement of the offence in the indictment is cured, and the conviction is good. — Mathew, J. 4. False Pretences. The Queen v. Goedon, 23 Q. B. D. 360. I am very sensible that in such an inquiry there must always be a danger of confounding intention with a representation or a promise as to something future. — Wills, J. 5. Husband and Wife — Offences against the person. The Queen v. Claeence, 22 Q. B. D. 23. 6. Larceny. The Queen v. Ashwell, 16 Q. B. D. 213. If there must be both a taking and the animus furandi to constitute larceny, the diffi- culty is, how the changing a man's mind ex post facto can render an honest taking larceny. To uphold such a doctrine would be to refine in such a way as to destroy the simplicity of the criminal law. — Aldeeson, B., Stephen, J. Nevertheless — The prisoner having obtained a loan of what he and the lender believed at the time was a shilling, afterwards discovered that the coin was a sovereign, and thereupon fraudu- lently appropriated it to his own use ; and upon a conviction of larceny seven judges — in the Court for Crown Cases Eeserved — were for affirming the conviction and seven for quashing it, and so the conviction stood. 7. letter written to Woman— Defamatory Libel. The Queen v. Adams, 22 Q. B. D. 66. 8. Malice — Hens Eea. The Queen v. Tolson, 23 Q. B. D. 169. The legislature may, for its own reasons, dispense in any given case with the necessity for a mens rea, and may constitute certain acts crimes in them- selves; but this it generally does in very clear language. (In argument.) 172. To constitute a crime the guilty intent and act must both concur ; but such guilty intent is not necessarily that of intending the very act prohibited, but it must be the intention to do some- Digitized by Microsoft® r 2 68 AN EXPOSITION OP ENGLISH LAW CRIMINAI. LAW— c- -. thing wrong ; and (p. 181) it would appear to be enough if that something is immoral without being criminal. — Wills, J. 187. " Malice " means different things in the case of (1) murder ; (2) malicious mischief; (3) libel; (4) fraud and ; (5) negligence: it is confusing (p. 185), therefore, to use the term "mens rea," with reference to all these things indifferently. — Stephen, J. 9, Misreception of Evidence. The Queen v. Gibson, 18 Q. B. D. 537. In a criminal trial, if any evidence not legally admissible is left to the jury ; the con- viction is bad. —Lord Coleridge, C.J. 10. Misprision, The Queen v. Burgess, 16 Q. B. D. 144. " Misprision of felony " is the concealment of a felony and is a " negative " as opposed to a " positive " misprision. CBISCINAL UATTEB. See Appeal. 4. CEIMIHATOEY ANSWEE. See Bankruptcy. 7. CEITICISM, LIMITS OF. See Libel. 2. cross-examination. 1. Commission — Abnse of Process of Conit. De Mora v. Concha, 32 Ch. D. 144. I agree that he has not had an opportunity of cross-examination, but I am not sure that it was not his business to consider when the commission was issued, whether it might not be utilized for the purpose of obtaining the evidence on all the inquiries, which could have been done at an extremely small additional expense. I am inclined to think that this case has been fought in the way in which cases sometimes are fought by a resolute litiganl-,, who, so to speak, lies upon his back and defies the other side, letting them do their best and taking every opportunity to object to what they do. The respondent ought not ' to '. have an opportunity of cross-examining if he does not bond fide want cross-examination, which is part of the machinery of justice and is only meant for the purpose of justice. If the power of cross-examination is used for the purpose of delay, that is an abuse of the process of the Court, and I think we ought to take great care whenever , we have reason to think that an application to cross-examine is intended for the purpose of defeating justice or causing delay. — Bovs^en, L.J. Digitized by Microsoft® BY ENGLISH JUDGES. 69 C&OSa-^XklS.lSA.TIOS— continued. 2. Of party in Chambers — Evidence. In re Da.vies. Issaed v. Lambeet, 44 Ch. D. 260. If you wish. to cross-examine you may do so, but under ordinary circumstances you must bring in your own evidence first, and cross-examine afterwards. — Lindley, L.J. See Witness. ramcipix. See Ecclesiastical Law. 5. CB1TELTY. See Judicial Separation. CT-FSES. In re White's Tbust, 33 Ch. D. 453. The rule stated in all the cases is that where there is a general gift to general purposes of charity, that gift may be sustained on the doctrine of cy-p-es although the particular objects fail or are no longer in existence. — Bacon, V.C, Digitized by Microsoft® 70 AN EXPOSITION OF ENGLISH LAW D. DAMAGES— MKASTTBE OF. 1. Dbetfus V, Peeuvian Guano Company, 42 Ch. D. 76. A wilful trespasser in mining, taking coal which he knows belongs t9 another, has been charged with the value of the coal at the pit's mouth — that is, as a manufactured chattel — without any allow- ance for the cost of severing — in other words, for the cost of manufacture. The logic of such decisions is, no doubt, question- able. In such a case the plaintiff may get more than compensa- tion for his loss. The disallowance of the cost of manufacture is rather by way of punishing a wilful wrongdoer than compensating the owner of the coal. But in those cases the cost of manufacture is allowed to the wrongdoer if his trespass has been a lond fide mistake, and not a wilful act of plunder, though the loss to the plaintiff is just the same. — Kay, J. 2. Injury to Property — Injury to Beversion. EusT V. Victoria Geaving Dock Company and London and St. Katheeine Dock Company, 36 Ch. D. 135. The problem to be solved is simply 'to find out the measure in money of the damage done to the houses and land by the flood. That is the thing to be got at. Having got at that, you have to consider how that sum ought to be apportioned among the persons interested in the property damaged, i.e., in the present case, how much of that sum ought to be awarded to the plaintiff in respect of his interest, and how much to the tenants who are not before the Court. — LiNDLEY, L.J. See Land Clauses Consolidation Act, 1845. 1. Principal and Agent, 9. Ship. 11. SEBENIVBES. See Company. 14. DEBTOR AND CKEDITOS— Agent for Payment— Stakeholder. Hendeeson V. EoTHSCHiLD, 33 Ch. D. 469. A man who gives an order to his agent to pay a creditor can afterwards revoke that order. Where money has been placed in the hands of a stake- holder or trustee for payment of an existing debt, and the stake- holder or trustee informs the creditor that he has the money in Digitized by Microsoft® BY ENGLISH JUDGES. 71 DEBTOR AND CB.'EDTIGR— continued. his hands for payment of that debt, that is irrevocable. — Bacon, V.C. DECEIT, ACTION OF— False Eepresentatiou— Fraud— Company. Derby v. Peek, 14 App. Cas. 339. To support an action of deceit it always was necessary at Common Law and still is both there and in Chancery to prove fraud. . . . Fraud never has been and never will be exhaustively defined. . . It must be something which an honest man would not do. . . , No honest mistake, no mistake not prompted by a dishonest intention, is fraud. ... A material misstatement may be a ground for rescinding the con- tract, but the consequences of fraud and of breach of contract are widely different. In an action for breach of contract the defen- dant must make good his words. In an action founded on fraud he must bear the whole of the consequences which have been induced by the fraudulent statement, which may be very exten- sive. The essence of fraud is the tricking a person into the bargain. — [Sir Horace Davey, Q.C., in argument.] 343. Fraud without damage or damage without fraud does not give rise to such actions. — Lord Halsbury, L.C. 374. I think the authorities establish the following proposi- tions : first, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will sufBce. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made. — Lord Herschell. 376. If I thought that a person making a false statement had shut his eyes to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated that which was false. — Lord Herschell. See Company. 19. DECK CABOO. See Ship. 15. Digitized by Microsoft® 72 AN EXPOSITION OP ENGLISH LAW DEES, AITESATION OF. In re Batten. Ex jparte Milne, 22 Q. B. D. 692. A deed can only be said to be altered if its effect is altered. — Lord ESHEB, M.E. 696. The subsequent cancelling of an instrument which has conveyed an estate does not divest the estate. — Fet, L.J. DEED OF ABBANGEUENT— Begistration. In re Batten. Ex parte Milne, 22 Q. B. D. 685. The time of registration is fixed with regard to the first execution of the instrument ; and the Act is entirely silent as to the last execution of it. It leaves that matter entirely open. The form of the deed is left absolutely open by the statute ; and it need not mention the creditors at all, by schedule or otherwise. An instrument which conveyed the property to a trustee requiring him to pay the creditors generally, and leaving him to find out who they were, would be within the scope of the Act. — Fby, L.J. DEEDS OF ABBANQEMENT ACT, 1887. DEFEASANCE. See Bill of Sale. 6. DELAT. See Administration. 3. DEPOSIT MONEY. See Vendor and Purchaser. 6. DESEBTION. See Divorce. 6. DEVISE TO TBirSTEES. EiCHAKDSON V. Haeeison, 16 Q. B. D. 111. Where there is a devise to executors to sell, they have the estate vested in them ; if the devise is merely that the executors shall sell, a power only is given. — Cotton, L.J. DICTUM. Lightbound v. Highee Bebington Local Boaed, 16 Q. B. D. 579. The observation of Cave, J., in that case is only a " dictum" and was not necessary for the decision. DIBECTOBS. See Company. 7. Company. 8. DIBECTOBS LIABILITY ACT, 1890, Digitized by Microsoft® BY ENGLISH JUDGES. 73 DISBVBSEMmrTS. See Costs. 8. SISCHASGE. See Bankruptcy. 4. DISGLAIKEB. See Trustee. 3. SISCONTIinjANCE OF ACTIOIT— Dismissal. Owners of Cargo of the "Kronpeinz" v. Owners of the "Kronpbinz." The "Aedanhu," 12 App. Cas. 259. Discon- tinuance is not dismissal of an action. — Lord Halsbtjet, L.C. SISCOTEBT. 1. Elder v. Carter. Eos parte Slide and Spur Gold Mining Co., 25 Q. B. D. 198. It lias long been a rule well established (the origin of it I do not recollect) that you cannot get discovery except from a party to your action. There is another rule, equally old and well-established, that you cannot make a mere witness a party in order to get discovery from him. — Lindley, L.J. 2_ Soonments of Title — Privilege. Morris v. Edwards, 23 Q. B. D. 289. The defendant pleads that he is in possession, and therefore puts the plaintiffs to proof of their title . . . the defendant is entitled to say, that, though he has certain documents relating to the matter in dispute, such documents relate solely to his own title, and do not in any way support the plaintiffs title. — Loed Esher, M.E. 3_ Interrogatories. Marriott v. Chamberlain, 17 Q. B. D. 163. The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, nor to ask what is mere evidence of the facts in dispute. With these exceptions nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the exist- ence or non-existence of the facts directly in issue. — Loed Esher, M.E. 166. The mere circumstance that in making discovery of relevant facts the names of witnesses must be disclosed is not sufficient to take away the right to discovery.— Fey, LJ. Digitized by Microsoft® 74 AN EXPOSITION OF ENGLISH LAW DISCOVERY— coniraued. 4. Privilege. LOWDEN V. Blakey, 23 Q. B. D. 334. I do not think that the definition of Jessel, M.E., that the privilege accorded to confiden- tial communications is restricted to the obtaining the assistance of lawyers as regards the conduct of litigation or the rights of property, is wide enough or is a definition of privilege in its fullest extent. — Denman, J. 5, Privilege — Fraud. In re Postlethwaite. In re Eickman. Postlethwaite v. Kick- man, 35 Ch. D. 726. Where a solicitor is party to a fraud, no privilege attaches to the communications with him upon the subject, because the contriving of a fraud is no part of his duty as solicitor ; and I think it can as little be said that it is part of the duty of a solicitor to advise his client as to the means of evading the law. — NoETH, J. See Inspection of Documents. Particulars of Demand. DISMISSAL OF ACTION. See Discontinuance of Action. Final Judgment. DISaXTALIFICATION— Interest— Bias. The Queen v. Fabeant, 19 Q. B. D. 60. It is a leading principle of English law that no one is allowed to be a judge in his own case ; that means that the least pecuniary interest in the subject- matter of the litigation will disqualify any person from acting as a judge. — Stephen, J. DISTRESS. See Landlord and Tenant. 7. Law of Distress Amendment Act, 1888. DIVORCE. 1. Stoey v. Stoey and O'Connoe, 12 P. D. 198. I come to the con- clusion that the husband is not entitled to come into this Court and claim release from the bond of marriage, he having shewn himself regardless of the obligations of that state. — The Peesi- DENT (SlE J. HaNNEn). 2. Hetheeington v. Hetheeinoton, 12 p. D 114. From the moment parties are authorized to live apart, the presumption which exists Digitized by Microsoft® BY ENGLISH JUDGES. 75 LIVO'RC^— continued. in the case of married persons as to access and legitimacy of children is reversed. — The President (Sir J. Hannen). 3, Assessment of Damages. Keyse V. Ketse, 11 P. D. 101. Now I am obliged to explain the principle upon which damages are to be given ; and, first, you must remember that you are not here to punish at all. Any observations directed to that end are improperly addressed to you. All that the law permits a jury to give is compensation for the loss which the husband has sustained. . . . The question in this case, as in so many others, is, whether or not these losses have been cast upon the petitioner by the action of the co-respondent. If he did not seduce her away from her husband, that makes a very material difference in considering the amount of damages to be given. In considering these questions, undoubtedly the con- duct of the husband must be looked to. 102. The means of a co-respondent have nothing to do with the question. The only question is what damage the petitioner has sustained, and the damage he has sustained is the same whether the co-respondent is a rich man or a poor man. — The President (Sir J. Hannen). 4. — Decree Nisi— Queen's Proctor's Intervention. Ceavtford V. Ceawfokd, 11 p. D. 157. If the Queen's Proctor comes to the conclusion that there is a ground for supposing that a decree has been obtained contrary to the justice of the case, then it is his duty to intervene. — The President (Sir J. Hannen). 5. Deed of Separation. Moore v. Moore, 12 P. D. 195. There is no covenant in the deed not to sue, neither, is there anything approaching to such a covenant. There is no condonation of past marital offences in the deed, and no expression pointing to condonation. . . . Under aU the circumstances of this case, I pronounce a decree for judicial separation. — Butt, J. 6, Desertion. ' Garcia v. Garcia, 13 P. D. 217. The wife is not entitled to her decree for divorce unless there has been desertion for two years and upwards, as well as adultery.— Butt^ J. 219 If a man is living with another woman, the wife is justified in saying. " ^ ^^^jg^l^ed^Mic^IoV ''''' ' '''"" ^°" '" 76 AN EXPOSITION OP ENGLISH LAW JilVORCE— continued. have access to me while you are living in open adultery with another woman." — The President (Sie J. Hannbn) ; Butt, J. 7. Evidence. Pbtor V. Peyob, 12 P. D. 166. The father's evidence is not admissible to bastardise the child, — The President (Sir J. Hannen). 8. Husliand and Wife both guilty — Costs of Wife. OtwA¥ V. Otwat, 13 P. D. 150. In my opinion the true principle is this, that a wife having been guilty of adultery has put herself in such a position that she cannot be considered as an innocent party in any proceedings which might have been taken in the old Ecclesiastical Courts, or, which might now be taken in the Court of Divorce ; and therefore on that ground she is not in a position to come to that Court to give her any relief as to any matrimonial offence which the husband may have committed, or to put it on the ground of compensation for a crime of the same nature. 154. The general rule is this, although the Kegulation 159 is that there shall be no costs in a suit for dissolution where the wife has been found guilty of adultery, except what at the hearing the judge who tries it in his discretion allows her, yet, as a rule, unless it has been proved that there is some reason why costs should not be allowed, provision is made for the wife's costs, both in defending herself and in bringing her case against her husband, by ordering the husband to provide those costs ; in fact, to pay them. 155. If, after she had been found guilty of adultery she had herself actively brought the matter before this Court, then I should have thought no provision ought to be made for her costs. — Cotton, L.J. 9. Impotence. A.'s Divoece Bill, 12 App. Cas. 367. Allegation that no marriage, as no consummation. 10. Queen's Proctor — ^Wife's Costs. Butler v. Butler, 15 P. D. 34. It has not been the practice to order a husband to pay a sum of money or to give security for a wife's costs in a trial with the Queen's Proctor. — Butt, J. 11. Wife's Costs. Begg v. Begg, 15 App. Cas. 171. An application for the appel- lant's costs in the divorce appeal was refused, on the ground that Digitized by Microsoft® BY ENGLISH JUDGES. 77 DIVORCE— con«in«ed. the rule laid down by the Lord Justice Clerk (Lord Moncreiff), in Kirh V. Kirh, " that as long as the wife has a probable ground of defence she may defend herself to the end at her husband's expense; and cases may be imagined in which she would be entitled to go to the House of Lords," has been considerably modified. The proper rule being that, except in a very excep- tional case, the wife is not entitled to be paid her costs by her husband, except upon the theory that she is still his wife. And that here the appellant had the judgment of the Lord Ordinary, and that of the Inner House against her, that she had been guilty of a matrimonial offence, and had ceased to be the wife of the respondent. — Loeds Heesohell, Watson and Moeeis. DOCmiENTS OF TITLE. See Discovery. 2. DOIUCII. 1. McMuLLEN V. Wadswoeth, 14 App. Cas. 634. Sir Robert Phillimore, in his work on the Law of Domicil (p. 17), remarked, and in their Lordships' opinion correctly so, that it might have been more correct to have limited the use of the word " domicil," to that which was the principal domicil, and to have designated simply as residences the other kinds of domicil : but a contrary practice has prevailed, and the neglect to distinguish between the different subjects to which the law of domicil is applicable has been the chief source of the errors that have occasionally prevailed on this subject. — SiE Baenes Peacock. 2. CoLQTJHOUN V. Beooks, 19 Q. B. D. 416. The personal property of a deceased person is considered by English law as subject to the law of the domicil of the deceased. — Stephen, J. 3_ Abandonment of— Eevival of. In re Maeeett. Chalmees v. Wingpield, 36 Ch. D. 407. The domicil of origin clings to a man unless he has acquired a domicil of choice by residence in another place, with an intention of making it his permanent place of residence. If a man loses his domicil of choice, then, without anything more, his domicil of origin revives ; but in my opinion, in order to lose the domicil of choice, once acquired, it is not only necessary that a man should be dissatisfied with his domicil of choice, and form an intention to leave it, but he must have left it, with the intention of leaving it permanently. — CottoN; L.J. Digitized by Microsoft® 78 AN EXPOSITION OP ENGLISH LAW DONATIO MOETIS CATJSA. In re Dillon. Duffin v. Duffin, 44 Ch. D. 83. It is contended that a deposit note cannot be the subject oi a, donatio mortis causa. Why should it not ? 'i'here is at first sight this difficulty, that it is not a negotiable instrument ; consequently a donee of it cannot sue on it in his own name, and the gift being voluntary, the Court according to its ordinary principles will not compel either the donor or his executors to do anything to perfect it. But that difficulty was disposed of long ago in Duffield v. Elwes. In that case . . . the House of Lords . . . held that the principle of not assisting a volunteer to perfect an incomplete gift does not apply to a donatio mortis causa. — Lindley, L.J. DOUBLE POETION— Satisfaction— Ademption. Montagu v. Eael of Sandwich, 32 Ch. D. 534. If the testator had not been a father, or a person in the position of a father, there would have been no question; but as between father and son the presumption arises that a father does not intend to give double portions to his children ; that is to say, if a father has made a provision by way of covenant in favour of his child before the date of his will, then unless it appears upon the will or by parol testimony (which in such cases is admitted in rather an anomalous way in order to rebut the presumption) that he intends to give the benefit conferred by will in addition to that which is already secured to the child by covenant, then the child will not take both. In other words, the benefit given by will is presumed to be given on an implied condition that if the son takes it he must give up and surrender that which has been already secured to him by covenant. The same presumption arises in another form where the father, by his will, gives a benefit to a son, and afterwards, on his marriage, or upon some other event, makes a settlement upon him; and there again the latter provision is considered as an ademption of the previous gift by will, unless it can be seen, either by parol testimony as to the intention of the father, or by something appearing upon the documents, that the son is intended to have both. — Cotton, L.J. DVBESS. See Marriage, Nullity of. 2. Digitized by Microsoft® BY ENGLISH JUDGES. 79 E. EASEMENT— Prescription— Landlord and Tenant. Chamber Colliery Company v. Hopwood, 32 Ch. D. 559. Either the enjoyment of this artificial watercourse was under the lease (I do not say that it was), in which case there would be no adverse enjoyment as of right, but a mere enjoyment by virtue of rights created by the lease itself, or if not an enjoyment under the lease, it may have been an enjoyment which took place under a belief by both parties that it was under the lease, and if so, it would be an enjoyment intended by the parties to operate only during that lease, or else if it was neither of those two kinds of enjoyment, it was an enjoyment under that sort of friendly comity which prevails between persons who have business relations existing between them, the friendly comity existing between a landlord and a tenant, when, for the mutual convenience of both parties, the landlord does not insist upon his strict right, but the tenant never supposes for a moment that he is gaining any adverse right as against the landlord merely because the landlord is indulgent. — BOWEN, L.J. ECCLESIASTICAL LAW — Burial — Faculty — Families of Parishioners — Non-parishioners. 1. In re Sahgent, 15 P. D. 169. After death the burial of a non- parishioner can take place with the consent of the vicar ... a faculty may be obtained for a monument to a non-parishioner . . . a faculty may be obtained for removing a body from one church- yard to another ... for example, a petition presented to the chancellor of the diocese of London by Thomas Duley, of 8, High Street, Uxbridge, for a licence or faculty to be buried in the grave of his parents in the churchyard of the parish of Bedfont, of which parish his parents were parishioners. The faculty, granted April 26, 1887, reserved the said grave to Thomas Duley as a burial-place for himself, exclusive of all others. 2. Church Discipline Act — Criminal Offence. " In the Mattee op A. B., 11 P. D. 58. Conduct and acts, though not constituting a criminal offence, may well be the subject of ecclesiastical censure.— Lord Penzance. Digitized by Microsoft® 80 AN EXPOSITION OP ENGLISH LAW ECCIESIASTICAL LAW— continued. 3. Churchyard — Burial of Strangers. Hughes v. Lloyd, 22 Q. B. D. 162. I will not enter upon the question as to who is the proper person to give permission for strangers to be buried in a parish churchyard, whether it be the incumbent or the churchwardens. — Loed Oolekidge, C.J. 4. Jurisdiction of Archbishop of Canterbury to try a Bishop. Eead V. Bishop op Lincoln, 14 P. D. 88. Held, that the arch- bishop sitting alone or with assessors had jurisdiction to entertain the charge. — The Archbishop of Canteebury. 104. The decrees of the first four general councils in matters of faith and doctrine are received, and have authority in England. — The Archbishop of Canterbury. 109. The canons of order and discipline passed in those same councils (and at less important synods) as to matters of ecclesias- tical procedure and legal practice are on another footing, and have no authority in England. — The Archbishop of Canter- bury. 105. The following canons were adduced (without mentioning dates) and considered by the Archbishop of Canterbury : — 1. The canons called Apostolic. 2. The canons of Antioch (a.d. 341). 3. The canons of Constantinople (a.d. 381). 4. The canons of Chalcedon (a.d. 451). The councils mentioned by him (without mentioning dates) were : — 1. The Synod of Antioch (a.d. 341). 2. The Council of Chalcedon (a.d. 341). 3. The Great Council of Constantinople (a.d. 381). 4. The General Council of Chalcedon (a.d. 451). 109. The creeds and sacred definitions deal with things eternal. The canons and the discipline deal with things of spiritual con- cernment but in temporal regions and for temporary uses. The canons themselves take into account the conditions of their own times and countries. So must the ecclesiastical procedure of every age and nation. The procedure and practice of Courts must of necessity vary with the constitution of a country, and the institu- tions, organizations, and usages of communities, both ecclesiastical and civil. These have been in perpetual movement and life, and those canons as they stand do not now answer to the actual practice of any Christian Church. — The Archbishop of Canterbury. 116. Dr. Stubbs, Bishop of Oxford, writes: — Before the Kefor- mation the Provincial Convocation may be fairly regarded as a Digitized by Microsoft® BY ENGLISH JUDGES. 81 ECCLESIASTICAl LkW—continued. Court attendant on and assessing to the archbisflop, discussing cases of litigation or correction which were brought before him therein or were laid by him before the clergy. But we are inclined to believe that, so far as jurisdiction was concerned, the authority resided in the metropolitan and not in the synod. — The Akchbishop of Cantbebuky. 117. The Court, therefore, holds that while Convocation is a Court of which the President " sedet Judieialiter" with the bishop's " assistentes," and while there may be causes, proeesses, or con- troversies which would be necessarily and usefully heard and determined there (proper conditions being fulfilled), it has not been established that it is the only proper Court for the trial of a bishop, and no instance of such a trial has been adduced.— The Archbishop of Canteebdbt. 118. England resisted the intrusion of foreign legates, sent from time to time to . . . supersede the action of the metropolitans. . . . Not only the kings but archbishops like Anselm remon- strated against the aggression. According to Anselm, the Arch- bishops of Canterbury, by the law and custom of the Church, possessed all the rights and powers that were by the delegation of the Pope's powers bestowed upon the legates. — Dk. Stubbs. 5. Decorations forbidden by law— Public Worship Begnlation Act, 1874. The Queen v. Bishop of London, 23 Q. B. D. 426. The placing and retaining a crucifix on the top of the screen separating the chancel of the church from the body or nave is illegal. — Manistt, J. 428. " The whole circumstances of the case," do not include the consideration and decision of an undecided question of law, so as to leave no appeal and stop proceedings absolutely — Manisty, J. 443. The bishop's general objection to litigation does not appear to me to be such a reason as I ought to hold to be a compliance with the plain meaning of the Act of Parliament. — Lokd Cole- ridge, C.J. 448. The rood or the crucifix, wherever placed, has been, and has been intended for, an object of worship. ... If this is not in the ordinary sense of the word a crucifix or rood, and liable to abuse, one must distrust the evidence of one's eyes and unlearn all one's history. — Lord Coleridge, C.J. 449. The construction, therefore, placed by the Bishop of London on the case to which he refers as his authority appears to Digitized by Microsoft® . q, 82 AN EXPOSITION OP ENGLISH LAW ECCLESIASTICAL LAW— continued. me SO entirely mistaken that I must treat any reason founded upon that construction as no reason within the statute. — Lokd Coleridge, C.J. 6. Public WorBhip Eegulation Act, 1874. " The Queen v. Bishop op London, 24 Q. B. D. 224. It is alleged that the bishop has either exceeded his jurisdiction or declined jurisdiction. . . . The controyersy has mainly turned upon the phrase, " after considering the whole circumstances of the case." ... It is said that his power or duty of exercising a discretion is limited, and does not arise unless and until he has considered the whole circumstances of the case in the sense that, if he has failed to consider each and every circumstance of the case, his power or duty of exercising a discretion has not come into play. I think that we must in construing the section have regard to the rule of construction laid down by Lord Selborne in one of the cases cited, to the effect that it is useless to enter into an inquiry with regard to the history of an enactment and any supposed defect in the former legislation on the subject, which it was intended to cure, in cases where the words of the enactment are clear. It is only material to enter into such an inquiry where the words of an enactment are ambiguous and capable of two meanings, in order to determine which of the two meanings was intended. In the first place, therefore, we ought to look at the words of the section itself, and to read it according to the well-known canon, in order to see what the words in their ordinary grammatical sense in the English language mean as applied to such a subject-matter as that with which the section deals. — Lord Esher, M.R. ; 226. The words are, in my opinion, enabling words. They enable the bishop to go beyond a certain limit, and to go to any limit with regard to the circumstances he considers, subject only to the limitation that they must be circumstances of the case ; and, if the bishop has honestly and fairly undertaken to consider the circumstances of the case, but without wilfully or unfairly refusing to consider any such circumstance, has failed to consider some circumstances which may be shewn to have existed, and has con- sidered others, then I do not think that he has failed to undertake the duty cast upon him. He has not refused to exercise the discretion given to him, merely because he may not have con- sidered each and every circumstance of the case. Then there is the other branch of the argument — viz., that as to excess of ^Digitized by Microsoft® BY ENGLISH JUDGES. 83 ECCLESIASTICAL LATW— continued. jurisdiction. T think that the bishop would have exceeded his jurisdiction if he had considered something which was not a circumstance of the case, and had acted upon it. That he should have considered it would not, I think, be enough ; it would have to be shewn that he had acted upon it. In order, therefore, to shew a refusal of jurisdiction, it must be shewn that the bishop has refused to consider the circumstances of the case ; in order to shew an excess of jurisdiction, it must be shewn that he has con- sidered and acted on something which is not a circumstance of the case. — Lord Eshee, M.E. 228. Lord Cairns in Julius v. Bishop of Oxford has mentioned the kind of collateral circumstances which may be gone into. The bishop may bring his own knowledge of facts to bear : he may consider the expediency of the particular litigation with regard to the welfare of the Church ; he may also consider the position of a clergyman complained of, whether he is likely to repeat the matter complained of, and anything that may have happened, such as a promise made by the clergyman to himself not to repeat it. All these are obviously collateral circumstances, and not part of the facts of the controversy. The words, " the whole circum- stances of the case," therefore include all such collateral circum- stances, the only limitation being that the bishop must not go into and found his opinion upon a circumstance which cannot even collaterally be a circumstance of the case. — Lord Esher, M.R. 23 L The onus lies on those who ask for a mandamus to shew that there has been a refusal or excess of jurisdiction. I decline to enter into a minutely critical examination of the particular expressions made use of by the bishop. We must look at his reply as a whole, and consider whether, fairly interpreting it, we can see from it that he has done what is alleged. — Lord Eshee, M.R. 233. Then he goes on to make certain general statements about the evils of litigation on ecclesiastical matters. And, if he had acted on those . taken alone, it may be that he would have been wrong. — Lord Esher, M.R. 234. I think, with deference to the Lord Chief Justice, that the fear of giving too dictatorial a power to the bishops has caused him to consider this matter rather as if he were considering the propriety of the provisions of the Act than the question whether the bishop has acted within those provisions.— Lord Esher, M.R. 237. The bishopC5i!gf/&0fe@ttbJilMnt5DtoS® any law of the land at G 2 84 AN EXPOSITION OF ENGLISH LAW ECCLESIASTICAL LAW— continued. defiance, and he cannot, under cover of forming an opinion under the power conferred upon him by this section, prevent the law from being enforced against persons who persist in doing that which he knows to be plainly illegal. But what is legal or illegal with respect to images, crosses, crucifixes, and other things of the sort in churches depends on whether they do or do not, or wiU or will not, encourage or lead to idolatrous or superstitious worship in the place where they are or are to be put ; and, if in any parti- cular case the bishop is of opinion that a particular image, cross, crucifix, or other piece of sculpture, has no tendency to encourage such worship, he is, in my opinion, perfectly justified in stopping litigation on the subject. In every such case it appears to me that the bishop may properly consider what are the interests of the Church in the matter, by which I understand the advantages or disadvantages (to other persons than those complaining and com- plained of) which will result from stopping further litigation. To exclude such considerations would, in my opinion, be unduly to limit his power and duty to consider " the whole circumstances of the case." — Lindlet, L.J. 240. The only remedy is to lay before him a fresh representa- tion pointing out the supposed mistake. He could then, and, if satisfied that he ought, he, of course, would correct his mistake by not staying proceedings on the renewed representation. It would be a great mistake to suppose that the High Court has no juris- diction over bishops in such cases as those now under considera- tion. The duty of every bishop, as of every subject, is to obey the law, whether he approves it or not, and, if he fails to perform that duty, he immediately becomes amenable to the High Court. If a representation is made to a bishop under the Public Worship Regulation Act, the bishop has no right to stay proceedings upon it until he has considered the whole circumstances of the case, and come to the opinion that proceedings upon it should not be taken. — LiNDLEY, L.J. [AfBrmed [1891] A. C. 666.] 7. Parish Clmrch — Jurisdiction. Batten v. Gedye, 41 Ch. D. 507. The Ecclesiastical Court having full jurisdiction, the High Court will not exercise jurisdiction in respect of such an interference at the suit of a parishioner. The lay rector of a parish, in respect of his freehold property in the parish church and churchyard, can maintain an action in the High Court against a trespasser. Digitized by Microsoft® BY ENGLISH JUDGES. 85 ECCLESIASTICAL tkW— continued. A person not resident in a parisli but owning property within it in respect of which he pays parish rates is a " parishioner " and entitled to sue as such. 8. Eight appurtenant to House — Long User and Acts of Ownership— Presumption of Legal Origin — Faculty. Halliday V. Phillips, 23 Q. B. D. 48. Where there has been long continued enjoyment by successive owners of a house and acts inconsistent with mere possession by the permission of the churchwardens (who are the Ordinary's ofBcers to dispose of and arrange the seats) a faculty must be presumed ; the repair to a pew is evidence against the Ordinary of more than mere posses- sion ; and hsld (in case where church was restored under a faculty) that the plaintiff was entitled to have a pew on the site of the former pew. — LoED Eshee, M.K. ; Bowen and Fet, L. JJ. [See 1891, A. C. p. 228.] EFFICIENT CAUSE. See Insurance, Marine. 7. ELECTION. 1. Compensation, In re Loed Chesham. Cavendish v. Dacee, 31 Ch. D. 473. The principle upon which the doctrine of election is based is that a man shall not be allowed to approbate and reprobate. . . . Lord Eldon confines the engrafted doctrine of compensation to the case of taking against the instrument, and describes it as arising from the conduct of the person electing so to take. He says : " In our Courts we have engrafted upon this primary doctrine of election, the equity, as it may be termed of compensation. Suppose a testator gives his estate to A., and directs that the estate of A., or any part of it, should be given to . B. If the devisee will not comply with the provision of the will, the Courts of Equity hold that another condition is to be implied, as arising out of the will, and the conduct of the devisee ; that inasmuch as the testator meant that his heir-at-law should not take his estate which he gives A., in consideration of his giving his estate to B. ; if A. refuses to comply with the will, B. shall be compensated by taking the property, or the value of the property, which the testator meant for him, out of the estate devised, though he can- not have it out of the estate intended for him.^CniTTV, J. 2. Bestraint on Anticipation. In re Vaedon's Teusts, 31 <31x. D. 279. The presumption of a Digitized by Microsoft® 86 AN EXPOSITION OF ENGLISH LAW ELECTION— flonWmied. general intention in the authors of an instrument that effect shall be given to every part of it, upon which the doctrine of election rests, may be repelled by the declaration in the instrument itself of a particular intention inconsistent with the presumed and general intention. — Fey, L.J. KMPIOTERS' IIABIIITT ACT, 1880. Kellaed V. KooKE, 19 Q. B. D. 588. How can it be said that a "ganger," the foreman of a gang of labourers, who is working with his hands all the day, is a person whose sole or principal duty is superintendence, and who is not ordinarily engaged in manual labour ? It is only necessary to state the proposition, to shew that the case is not within s. 1, sub.-s. 2. — A. L. Smith, J. See Master and Servant. 5. ENDOWED SCHOOLS ACT, 1869. In re Endowed Schools Act, 1869. In re Cheist's Hospital, 15 App. Cas. 172. EQUITABLE CONVEBSION. See Vendor and Purchaser. 5. EQUITABLE MORTGAGE— Conflicting Equities- Priority. In re Eichaeds. Humbee v. Eiohaeds, 45 Ch. D. 589, See Annuitants. - Mortgage. 6. Mortgage. 7. EftTJITY. In re Lord Ohesham. Cavendish v. Dacee, 31 Ch. D. 472. A Court of Equity never decrees an act to be done which is a breach of trust, or a mere idle act which could only lead to litigation. — Chitty, J. See Common Law. 2, Law. 2. Settlement. 3. EftUITY, COTTRTS OF. Deery V. Peek, 14 App. Cas. 352. I think that in this kind of case, as in some others, Courts of Equity have made the mistake of disregarding a valuable general principle in their desire to effect what is, or is thought to be, justice in a particular instance. — LoED Bramwell. EQUITY TO A SETTLEMENT. See Executor. 8. Husband and Wife. 1. Digitized by Microsoft® BY ENGLISH JUDGES. 87 ESCBOW. Whelan v. Palmer, 39 Ch. D. 655. I have always considered it as a clear point, that if the instrument be delivered upon con- dition, that constitutes it an escrow. — Lord St. Leonards ; Kekewich, J. 656. Where, by express declaration or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some con- templated event should have happened, the deed is not a complete and perfect deed until that event has happened. — Williams, J. ; Kekewich, J. ESTOPPEL. 1. Seton v. Lapone, 19 Q. B. D. 70. An estoppel does not in itself give a cause of action ; it prevents a person from denying a certain state of facts. One ground of estoppel is where a man makes a fraudulent misrepresentation and another man acts upon it to his detriment. Another may be where a man makes a false statement negligently, though without fraud, and another person acts upon it. And there may be circumstances under which, where a misrepresentation is made without fraud and with- out negligence, there may be an estoppel. It is laid down in the judgment in Garr v. London and North Western Railway Company that " if, in the transaction itself which is in dispute, one has led another into the belief of a certain state of facts by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led the other to act by mistake upon such belief to his pre- judice, the second cannot be heard afterwards as against the first to shew that the state of facts referred to did not exist." — Lord ESHER, M.E. 2, ITegligence, action for — ^Eepresentations causing Damage, Bishop v. Balkis Consolidated Company, 25 Q. B. D. 83. Duty is essential to an action of negligence or estoppel by reason of negligence, but not to an action claiming compensation for damages sustained by acting on representations made for the purpose that they should be acted on. — Williams, J. See Brokers. Contract. 5. Shares. Digitized by Microsoft® 88 AN EXPOSITION OF ENGLISH LAW EVIDENCE, 1, Evidence abroad — Commission, CoCH V. Allcook, 21 Q. B. D. 181. A commission to take evidence abroad is a matter of judicial discretion, and ought only to be granted on reasonable grounds being shewn for its issue. — Loed ESHEE, M.E. 2. Evidence of foreign law. See Foreign Law, Evidence of. 3. Letters. See Legitimacy. 1. 4. Parish Begisters — Proceedings between Strangers, Lyell V. Kennedy, 14 App. Gas. 448. Foreign registers of baptisms and marriages, or certified extracts from them, are receivable in evidence in the Courts of this country, as to those matters which are properly and regularly recorded in them, when it sufficiently appears (in the words of Mr. Hubback's learned work on Evidence), that they have been kept under the sanction of public authority, and are recognized by the tribunals of the country (i.e. of the country where they are kept) as authentic records. 450. With respect to the proceedings in 1766, in the Sheriff's Court of Perthshire (which were produced from the proper custody), I consider them also admissible, on the same principle on which answers and decrees in Chancery have been admitted by this House in Peerage cases, as to matters of pedigree, when the facts of the pedigree were not in dispute, but only incidentally stated. ... In the Shrewsbury Peerage Case this House received an Irish answer as to matters of pedigree, though the answer was without oath or signature ; Lord Wensleydale saying : " It (the answer) must be received as the statement of the party making it, and being found on the files of the Court, it must be presumed that it got there by proper authority." To make an answer evidence, the biU to which it was an answer must always be put in ; but the bill itself is not evidence unless made so by the answer. — Eael of Selbokne. See Bankruptcy. 7. Criminal Law. 9. Cross-examination. 2. Divorce. 7. Legitimacy. 2. Probate. Trial by Jury. 2. Digitized by Microsoft® BY ENGLISH JUDGES. 89 EXCESSIVE DAMAGES. See New Trial. 2. EXCLUSIVE DEALIKG. See Conspiracy. 2. EXECUTION CEEDIXOR. Hancock v. Smith, 41 Ch. D. 461. An execution creditor can only lay hold of what is the property of his debtor. — Cotton, L.J. 462. An execution creditor can only take subject to all equities. — Fby, L.J. EXECUTOBS. 1. In re Smith. Hendeeson-Eoe v. Hitchins, 42 Ch. D. 305. The moment the executors assented to the bequest, they became trustees for their " cestuis que trustent" the £400 then ceased to be part of the testator's assets, and it became a trust fund for the benefit of the plaintiff for life, and afterwards for his children, and the executors became mere trustees for them of that fund. — Lord Eomillt, M.R. ; North, J. 2, Administrators — Advertisements for Creditors. In re Bracken. Doughty v. Townson, 43 Ch. D. 5. In this Court we never allow an estate to be distributed without notice being inserted in the London Gazette, and generally we require an advertisement to be inserted in the Times. When an estate is administered of a testator in the country, the notice is also inserted in some newspaper having a local circulation in the neighbourhood. — Lord Eomillt, M.E. 9. There must be an advertisement in the Gazette, and whether there should be other advertisements in other London papers must be decided by the circumstances of the case. — Cotton, L. J. 3. Lease — Liability. In re Bowes. Earl op Steathmore v. Vane. Noecliffe's Claim, 37 Ch. D. 133. Executor of lessee for years is, in the absence of other assets, liable de bonis propriis, for the rent reserved, to the extent to which he might, by the exercise of reasonable diligence, have derived profit from the premises. 134. Where the rent reserved exceeds the value of the premises, an executor, in the character of assignee, is liable to the extent of such value, and where the value exceeds the rent reserved, to the extent of such rent. — Maule, J. ; North, J. Digitized by Microsoft® 90 AN EXPOSITION OP ENGLISH LAW EXECUTORS— con MAXIMS. Ab inconvenienti, arguments, II App. Cas. 626. — LoED Hobhottse. Actio personalis moritur cum persona, 20 Q. B. D. 502. — Lobd Eshee. 40 Ch. D. 553.— Cotton, L.J. (Discussed.) Actus non facit reum, nisi mens sit rea, 23 Q. B. D. 172. — Wills, J. (see Mens rea). Ad medium filum, 33 Ch. D. 145. — Cotton, L.J. Autrefois acquit, plea of, 11 P. D. 57.— Loed Penzance. Brevi manu, 33 Ch. D. 119.— Peaeson, J. 33 Ch. D. 283.— Cotton, L.J. Casus omissus, 19 Q. B. D. 137.— Fey, L.J. Causa causans — the real effective cause, 17 Q. B. D. 674. — Loed Eshee, M.E. Causa proxima — the immediate cause, 17 Q. B. D. 674. Loed Eshee, M.E. Causa remota— the effective, or efiBcient, or moving cause, 17 Q. B. D. 674.— Loed Eshee, M.E. Cessante ratione cessat lex, 18 Q. B. D. 255. Lopes, L.J. Communis error facit jus, 12 App. Cas. 345.— Loed Watson. Dans locum contractui, 34 Ch. D. 6. Ei qui affirmat non ei qui negat incumbit probatio, 12 App. Cas. 45.— Loed Halsbuey, L.C. Evidentia rei, 11 App. Cas. 236.— Loed Selboene. Ex abundanti cautela, 33 Ch. D. 149. — Cotton, L.J. Ex majori cautela, 20 Q. B. D. 476. Ex mero motu, 38 Ch. D. 74 Cotton, L.J. Digitized by Microsoft® BY ENGLISH JUDQES. 119 ISQAL TEBIUS AIO) MAXIISS— continued. Expressio eorum qute tacite insunt nihil operatur, 12 App. Cas. 16. — Lord Halsbuet, L.O. 33 Ch. D. 538.— Kat, J. Expressio unius est exclusio alterius, 16 Q. B. D. 753. — Hawkins, J. 21 Q. B. D. 65.— Lopes, L.J. Falsa demonstratio non nocet, 31 Ch. D. 320. — Chitty, J. Fixatur solo, solo cedit, 33 Ch. D. 567. — Chitty, J. Fieri non debuit, factum valet, 36 Ch. D. 319. — Stirling, J. General. (1.) A man is taken to intend the natural consequence of what he does, 17 Q. B. D. 299 and 557.— Lord Eshee, M.E. (2.) A man is to be taken to know that which he wilfully abstains from knowing, or against which he wilfully shuts his eyes, 17 Q. B. D. 557.— Lord Esher, M.E. (3.) A man who states that which is in fact untrue, reckless, whether it is true or false, is to be taken to be malicious, 17 Q. B. D. 558. — Lord Esher, M.E. Generalia specialibus non derogant, 38 Ch. D. 56. — Bo wen, L.J. Id certum est quod certum reddi potest, 38 Ch. D. 133. — BOWEN, L.J. In gremio legis, 31 Ch. D. 502. — Pearson, J. In pari delicto potior est conditio defendentis, 12 App. Cas. 45. — Lord Halsbctry, L.C. In pari materia, 34 Ch. D. 39. — Bowen, L.J. Inopes consilii, 12 P. D. 125. — Butt, J. Interest reipublicae ut sit finis litium, 11 App. Cas. 664. — Lord Watson. Lex non favet delicatorum votis, 11 App. Cas. 694.— Lord Bramwell. Mala praxis, 22 Q. B. D. 534.— Fry, L.J. Malum prohibitum et malum in se, 39 Ch. D. 122. — Kay, J. Mens rea (Discussed), 23 Q. B. D. 185.— Stephen, J. Nemo debet bis vexari, 19 Q. B. D. 232.— Field, J. Nemo est heres Tiventis, 45 Ch. D. 63. — Kay, J. Non est reus, nisi mens sit rea, 23 Q. B. D. 185.— Stephen, J. Obiter dicendo, 17 Q. B. D. 597.— Bowen, L.J. 38 Ch. D. 71. — Bowen, L.J. {see Obiter dicta. 5). Omnia presumuntur rite esse acta, 31 Ch. D. 408.— Chitty, J. 14 P. D. 48.— Butt, J. 15 P. D. 179.— LiNDLEY, L.J. Digitized by Microsoft® 120 AN EXPOSITION OP ENGLISH LAW LEGAL TEBMS AND MAXlSLB—continuedi Omnis ratihabitio retrotrahitur et mandato equiparatur, 41 Ch. D. 304. — Babon Mabtin. Omnis nova constitutio futuris formam imponere debet non prse- teritis, 31 Ch. D- 408, — Bowen, L.J. Particeps criminis, 12 P. D. 76. — Lord Esheb, M.E. Per incuriam, 33 Ch. D. 104. — Cotton, L.J. 40 Ch. D. 296. — Ltndley, L.J. Portior est conditio defendentis, 17 Q. B. D. 552. — Wills, J. Prsesumitur pro negante, 16 Q. B. D. 226. — Lobd Colebidge, C.J. Praesumptio juris et de jure, 12 P. D. 180. — Butt, J. Quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest, 15 App. Cas. 540. — Lobd Moebis. Qui facit per alium facit per se, 32 Ch. D. 341. — Bowen, L.J. Qui hseret in liters, haeret in cortice, 17 Q. B. D. 186. — Manisty, J. 21 Q. B. D. 36.— Wills, J. Qui prior est tempore, potior est jure, 32 Ch. D. 178. Quia timet, 11 P. D. 13. — Sib J. Hannen. Quicquid plantatur solo, solo cedit, 33 Ch, D, 564, Ees Integra, 12 App, Cas. 267. — Loed Halsbuby, L.C. Ees judicata — 'Transit in rem judicatam,' 19 Q. B, D. 232, — Field, J, Ees nova, 19 Q, B, D, 142: — Day, J, Eestitutio in integrum, 13 P, D. 200. — Bowen, L. J. Secundum subjectam materiem, 31 Ch, D. 40, — ^Bowen, L.J. Sic utere tuo ut alienum non laedas, 18 Q. B. D. 695. — Bowen, L.J. Spes successionis, 45 Ch. D. 55. — ^Kay J. Strictissimi juris, 17 Q. B. D. 597, — Bowen, L. J. Superflua non nocent, 17 Q. B. D. 270. — Bowen, L.J. Tabula in naufragio, 12 App. Cas. 307. — Lobd Watson, Uberrima fides, 17 Q. B. D. 565.— Lobd Esheb, M.E. Uno flatu, 34 Ch. D, 115.— Bowen, L.J. 14 App. Cas. 627. — Eael Selbobne, Volenti non fit injuria, 18 Q, B. D. 695.— Bowen, L.J, (see Master and Servant 6). 14 App, Cas, 187.— Lobd Bbamwell. LEGATEES. See Annuitants. LEGITIMACY. 1, Paternity — Evidence. The Aylesfobd Peeeage, 11 App. Cas. 6. What passed at an inter- Digitized by Microsoft® BY ENGLISH JUDGES. 121 lEGITIUACT — continued. view of this kind between the wife and her mother-in-law may be important, and enable us to appreciate the bearing of her conduct. It may be that when we hear what was said we ought not to attend to some parts of it, perhaps not to any part. But I do not think you can stop the question. — Eael of Selboene. 8. These letters ought to be read. The authorities which have been referred to I assume to be still in force, that is to say, that you could not put into the witness box Lady Aylesford, or if he were still living Lord Aylesford, for the purpose of proving who the real father of the child was. But it by no means follows that you cannot prove acts and conduct of the one or the other tending, as part of a series of res gestse, to throw light upon and to lead to a just conclusion upon a question on which they could not directly be permitted to give evidence. — Earl of Selbokne. 9. It is said that a declaration bearing directly upon the point if occurring in such a letter, ought not to be received. I agree that it should not be received as direct evidence of the fact. — Eael of Selboene. 10. Those declarations are not in themselves evidence of the fact one way or the other. But I cannot hold that a letter other- wise admissible which is an important act of conduct done by the mother, is to be excluded in whole or in part (if it were possible to divide one part from the other), because it may contain such declarations. These declarations are facts as well as statements. It is a fact that for some purpose or other the mother wrote a letter containing such statements at such a time. Your Lordships will not take them as proving the fact; but the fact that the mother did write such a letter, at such a time and for such a purpose, ought not to be excluded from consideration. — Eakl of Selbobne. 11. As mere declarations by Lady Aylesford, of course the letters would not be admissible ; they are only admissible as part of the conduct — part of the res gestse — Loed Beamwell. 17. I cannot think that any presumption arises that Lord Ayles- ford had cohabitation with her. It seems to me that to say that such a presumption arises from the mere continuance of the non- dissolution, to call it so, of the matrimonial tie, under such circumstances would be putting a presumption of law very, very contrary to that of common sense ; and I do not think that any authority goes so far as to say that there should be such a pre- sumption . . . Digitized by Microsoft® 122 AN EXPOSITION OP ENGLISH LAW LEGITIMACY— confe'raueti. Morris v. Davies decides that such a presumption can be re- butted ; and it also shews that it can be rebutted by the conduct of the parties, taking the whole res gestm. — Lobd Blackburn. 2. Paternity — Fresumption of Legitimacy — Evidenoe — Admissibiiity. BuENABY V. Baillie, 42 Oh. D. 296. In my opinion the certificate is admissible, because M. Eoux proved that he had compared it with the original entry in the register, and that it is an accurate copy, and it stands in the same position as a copy made by himself to refresh his memory. I think it is also admissible as an examined copy of a French official document. The 21st of July, 1884, the day on which Mrs. Burnaby left her home, was the 279th day before the day on which that child was born. The conclusion to which I hare come upon the evidence is, that the usual period of gestation is from 273 or 274 days up to 279 or 280 days, though there is a good deal of evidence which shews that the period is sometimes longer or shorter — ^that there is sometimes a difference of eight or nine days in either direction. But, having regard to the normal or usual period of gestation, the medical evidence does not enable me to come to a positive conclusion I have to decide the question of fact which was thus stated by Lord Lyndhurst in Morris v. Davies (5 CI. & F. 216) : Whether the circumstances are such as to satisfy me that no sexual intercourse did take place between these parties, at the period to which reference is had. . . . I find as matter of fact that no sexual intercourse had taken place for some time prior to the 21st of July. — North, J. LESSOR AND LESSEE. 1. Elwes v. Bkigg Gas Company, 33 Ch. D. 569. A lease is only a contract for the possession and profits of the land [and would not pass anything else]. — Chitty, J. 2 . Agreement for lease — Usual Covenant. In re Andekton and Milneb's Contract, 45 Ch. D. 476. 3. Restrictive Covenants. Spicer V. Martin, 14 App. Cas, 23. The law on the subject has never been stated more clearly than it was by Vice-Chancellor Hall in Benals v. Cmolishaw. — Lord Macnaghten. 24. It may, I think, be considered as determined that any one who has acquired land, being one of several lots laid out for sale as building plots, where the Court is satisfied that it was the Digitized by Microsoft® BY ENGLISH JUDGES. 123 lESSOS AND ZHSSEE— continued. intention that each one of the several purchasers should be bound by and should as against the others have the benefit of the covenants entered into by each of the purchasers, is entitled to the benefit of the ^covenant ; and that this right, that is, the benefit of the covenant, enures to the assign of the first purchaser, in other words, runs with the land of such purchaser. This right exists not only where the several parties execute a mutual deed of covenant, but wherever a mutual contract can be sufficiently established. A purchaser may also be entitled to the benefit of a restrictive covenant entered into with his vendor by another or others where his vendor has contracted with him that he shall be the assign of it, that is, have the benefit of the covenant. And such covenant need not be express, but may be collected from the transaction of sale and purchase. — Hall, V.-C. ; Lord Mao- NAGHTEN. 25. The houses were to be built as private houses, and to be used for no other purpose. The houses were actually built as private houses, and offered to the public as such. Their character was unmistakeable ; and every person who took one of the houses was required to enter into the same restrictive covenant. This restriction was obviously for the benefit of all the lessees on the estate ; they all had a common interest in maintaining the restriction. This community of interest necessarily, I think, requires and imports reciprocity of obligation. As regards the appellant, the case, I think, is doubly clear. It seems to me that when Mr. Spicer put his houses in Cromwell Gardens on the market, he invited the public to come in and take a portion of an estate which was bound by one general law — a law perfectly well understood, and one calculated and intended to add to the security of the lessees, and consequently to increase the price of the houses. The benefit of that increase, whatever it was, Mr. Spicer got. Can he or his representative be permitted to destroy the value of the thing he sold by authorizing the use of part of the estate for a purpose inconsistent with the law by which he professed to bind the whole ? — Lord Macnaghten. 8ee Landlord and Tenant. LIBEL. 1, Damages — ^Privilege. Davis v. Shefstone, 11 App. Cas. 190. It is one thing to comment upon or^riticise, evea with sCTcrity, the acknowledged 124 AN EXPOSITION OP ENGLISH LAW LIBEL — continued. or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. — Lobd Heeschell, L.C. 191. As to the amount of damages; the assessment of these is peculiarly the province of the jury in an action of libel. The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to prove. — Lobd Hee- schell, L.C. 2. Fair criticiBm. Meeivale V. Caeson, 20 Q. B. D. 283. Whatever is fair, and can be reasonably said of the works of authors or of themselves, as connected with their works, is not actionable, unless it appears that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author; then it will be a libel. — Lord Tenteeden, C.J. ; Bowen, L.J. 284. There is all the difference in the world between saying that you disapprove of the character of a work, and that you think it has an evil tendency, and saying that a work treats adultery cavalierly, when in fact there is no adultery at all in the story. — Bowen, L.J. 3, Injunction to restrain, Liverpool Household Stores Association v. Smith, 37 Ch. D. 181. To justify the Court in granting an interim injunction it must come to a decision on the question of libel or no libel before the jury decided whether it was a libel or not — ^the jurisdiction, therefore, is of a delicate nature, and ought only to be exercised in the clearest cases, where any jury would say that the matter com- plained of was libellous, and where if the jury did not so find, the Court would set aside the verdict as unreasonable. In the case of an existing document brought before the Court, the Court can judge of its character; but how can the Court judge whether documents which are not yet in existence will be libellous ? In my opinion it would be very dangerous to grant an interlocutory injunction with reference to future publication unless we could lay down definitely some line which would include only the publication of what would necessarily be libellous. In my opinion it would be very unadvisable to grant any injunction which would restrain fair discussion in the newspapers of matters of importance like that of the probable success or failure of a public company. — Cotton, L.J. Digitized by Microsoft® BY ENGLISH JUDGES. 125 XIBEL — eontimied. 4. Newspaper. Emmens V. Pottle, 16 Q. B. D, 357. The proprietor of a newspaper who publishes the paper by his servants, is the publisher of it, and is liable. The printer of the paper prints it by his servants, and therefore he is liable for a libel contained in it. — Lokd ESHEE, M.E. The vendor of a newspaper is prima, facie liable for a libel contained in it, if he knows, or ought to know, that the paper is one which is likely to contain a libel. — Bowen, L.J. 5. Privilege — ^Keport of proceedings in Courts of Justice. Macdotjgall V. Knight, 14 App. Gas. 200. The ground upon which the privilege of accurately reporting what takes place in a Court of justice is based is that judicial proceedings are in this country public, and that the publication of what takes place there, even though matters defamatory to an individual may thus obtain wider circulation than they otherwise would, is allowed because such publication is merely enlarging the area of the Court, and com- municating to all that which all had the right to know. I am not prepared to admit that the judgment of a learned judge must necessarily be privileged. It is obvious that a partial account of what takes place in a Court of justice may be the exact reverse of putting the person to whom publication is made in the same position as if he were present himself. — Loed Halsbuky, L.C. 6, Publication of Judicial Proceedings. Macdougall v. Knight, 25 Q. B. D. 7. The publication without malice of an accurate report of what has been said or done in a judicial proceeding in a Court of justice is a privileged publication, although what was said or done would, but for the privilege, be libellous against an individual and actionable at his suit, and that this, is true although what is published purports to be, and is, a report not of the whole judicial proceeding, but only of a separate part of it, if the report of that part is an accurate report thereof and published without malice. — Loed Eshee, M.E. 11. I am satisfied myself that the judgment of a judge of the land is in itself an act of such a public and distinct character as to make it to the interest of the commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarized, it seems to be that the public policy requires that to be the law, and I have no hesitation in saying that I believe that tobe the law at the present day.— Bowen, L.J. ; Fey, L.J. Digitized by Microsoft® 126 AN EXPOSITION OF ENGLISH LAW LIBEL — continiied. 7_ PubUoation in Trade Newspaper of Extracts from Eegister of County Conrt judgments. Williams v. Smith, 22 Q. B. D. 134. See New Trial. 2. Law of Libel Amendment Act, 1888. LIBEL AND BEGISTKATION ACT, 1881. See Copyright. 5. LIBEL, DEFAUATOBY. See Criminal Law. 7. LIBBABIES. See Public Libraries Acts — Amendment Acts, 1887 and 1890. LICENCE, EFFECT OF, Heap v. Hartley, 42 Cli. D. 468. A dispensation or licence properly passes no interest, but only makes an action lawful which without it had been unlawful ; as a licence to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which, without licence had beem unlawful ; but a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down ; but as to carry away the deer killed and the tree cut down, they are grants. — (Tindal, C.J.). So here, a licence to enter upon a canal and take the ice is a mere licence ; and the right of carrying it away is a grant of the ice so to be carried away. — Loed Hatheeley, Cotton, L.J. 470. An exclusive licence is only a licence in one sense ; that is to say, the true nature of an exclusive licence is this. It is a leave to do a thing, and a contract not to give leave to anybody else to do the same thing. But it confers like any other licence, no interest or property in the thing. A licence may be, and often is, coupled with a grant, and that grant conveys an interest in property, but the licence pure and simple, and by itself, never conveys an interest in property. It only enables a person to do lawfully what he could not otherwise do, except unlawfully. I think, therefore, that an exclusive licencee has no title whatsoever to sue. — Fey, L.J. licensing acts. See Inn. Landlord and Tenant. 6. Digitized by Microsoft® BY ENGLISH JUDGES. 127 LIE'S. See Insurance, Life. Maritime Lien. Owner. Solicitor. 3. Solicitor. 4. Solicitor. 5. IiaHT. 1. Fiesorlptioii — Fluotnating intennption. PBESiiAND V. Bingham, 41 Ch. D. 268. The plaintiff must shew that he has enjoyed access of light for twenty years without interruption. If it should appear that there has been obstruction, he must also shew that it has not lasted for a whole year : if it appears that there has been a fluctuating obstruction, the defendant must shew that he has been obstructing for the whole space of twelve mouths, and that the plaintiff has acquiesced. — LiNDLET, L.J, 2, Anciest lights — Fresoription Act. Scott v. Pape, 31 Ch. D. 569. The question to be considered is this, whether the alteration is of such a nature as to preclude the plaintiff from alleging that he is using through the new appertures in the new wall the same cone of light, or a sub- substantial part of that cone of light, which went to the old building. — Cotton, L.J. 574. The right to these pencils of light remains, eyen though the dominant tenement may be pulled down or altered with a Tiew to being rebuilt. The structural identity of the building is not the test, but more, the measure of enjoyment is not the aperture itself, but the size and dimensions of an aperture in that position. — Bowen, L.J. 575. The word " access," as used in that section (2 & 3 Wm. IV. cap. 7, s. 8) does not refer to the access through the orifice — through the aperture or window — but to the freedom of passage over the servient tenement. — Fry, L.J, See Land Clauses Consolidation Act, 1845. 1. LIMITATIONS— Beal Property. Agency Company v. Short, 13 App. Cas. 798. If a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the Digitized by Microsoft® 128 AN EXPOSITION OF ENaLISH LAW LIMIIATIOKS — continwd. intrusion took place. There is no one against whom lie can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice, or to perform any ceremony in order to rehabilitate himself. No new departure is necessary. The possession of the intruder, in- effectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant. — Lord Macnaghten. 799. The statute applies, not to want of actual possession by the plaintiff, but to cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. — Lord Macnaghten. See Inconsistent and Contradictory Limitations. LIMITATIONS, STATUTE OF. 1. Beceipt of Bent by Agent — Agent de son tort — Batification by Owner — Tmstee. Lyell V. Kennedy, 14 App. Cas. 456. If he received on behalf of the heirs, and if they could and did adopt and ratify his agency, they were in, and never out of, possession. 460. When the true owner can and does ratify an agency under- taken on his behalf, though without his antecedent authority, the case is the same as if he had himself received the rents. — Eael of Selboene. 463. I do not hesitate to say that where the duty of persons is to receive property and to hold it for another, and to keep it until it is called for, they cannot discharge themselves from that trust by appealing to the lapse of time. They can only discharge themselves by handing over that property to somebody entitled to it. — GiPFAED, L.J. ; LoED Macnaghten. 2. Cause of Action — Action for Subsidence — ^Bes Judicata. Daeley Main Collieey Company v. Mitchell, 11 App. Cas. 132. For one cause of action you must recover all damages incident to it by law once and for ever. — Loed Halsbdet. 133. It is clear that no action would lie for the excavation. It is not, therefore, a cause of action ; that case established that it is the damage q,nd not the excavation which is the cause of action. Digitized by Microsoft® BY ENGLISH JUDGES. 129 IIMITATIONS, STATTITE OF— continued. I cannot understand why every new subsidence, although pro- ceeding from the same original act or ommission of the defendants, is not a new cause of action for which damages may be recovered. I cannot concur in the view that there is a breach of duty in the original excavation. — Loed Halsbuey. 138. Damages resulting from one and the same cause of action must be assessed and recovered once and for all. — Cookbuen,L.O.J.; LofiD Blackbuen. 140. One very important question raised in and decided by the case of Bonomi v. Backhouse was as to the rights of buildings to support, as distinguished from the rights of the natural soil to the support. — Lord Blackbuen. 144. If a man sustained two injuries from a blow, one to his person and another to his property, as, for instance, damage to a watch, there is no doubt that he could maintain two actions in respect of the one blow. — Loed Bbamwell. LIQTTISATOB. See Company. 25. LOCAI GOVEEHMENT— PUBLIC HEALTH ACT, 1875. Hopkins v. Smethwick Local Boaed op Health, 24 Q. B. D. 714. In condemning a man to have his house pulled down, a judicial act is as much implied as in fining him £5 ; and as the Local Board is the only tribunal that can make such an order its act must be a judicial act, and the party to be affected should have a notice given him ; and there is no notice, unless notice is given of time when, and place at which the party may appear and shew cause. — Wills, J. local GOVEENMENT act, 1888— Eoadside— Wastes— County Council. CuETis V. Kesteven County Council, 45 Ch. D. 509. Eoadside wastes are not vested in the County Council.— Noeth, J. See Highway. 2. County Electors Act, 1888. LOED CAMPBELL'S ACT— Measure of Damages. Geand Teunk Eailway Company op Canada v. Jennings, 13 App. Cas. 803, The right conferred by statute to recover damages in respect of death occasioned by wrongful act, neglect, or default, is restricted to the actual pecuniary loss sustained by each individual entitled to sue.— Loed Watson. 804. When a man has no means of his own, and earns nothing, Digitized by Microsoft® k 130 AN EXPOSITION OP ENGLISH LAW LOBS CAKFBEIL'S ACT^eontinued. it is obvious that his wife or children cannot be pecuniary losers by his decease. ... A very different case arises when the means of the deceased have been exclusively derived from his own exertions, whether physical or intellectual. — Lobd Watson. LOST OBANT. See Prescription. LOST WILL. &eWill. 10. LXriTACT ACT, 1890. To consolidate certain of the Enactments respecting Lunatics. LVSACY ACTS AMSNDMEXT ACT, 1839. LUNATIC. HoENE V. Fountain, 23 Q. B. D. 270, The Legislature has never shewn any intention that a lunatic should be treated differently to other persons, with respect to his debts ... a lunatic unable to pay his debts can be made a bankrupt. — Cave, J. Digitized by Microsoft® BY ENGLISH JUDGES. 131 M. HAONA CHASTA. See Mandamus. 3. MAINTENANCE. Haebis V. Bbisoo, 17 Q. B. D. 513. Charity (even thoughtless and inconsiderate) is a good defence to an 'action for maintenance, — Fey, L.J. See Accumulation. Champerty and Maintenance. Costs. 13. MALICE. See Criminal Law. 8. MALICE— General. See Criminal Law. 2. MALICIOUS PEOSECTJTION— Corporation. Abrath V. North Eastern Eailway Company, 11 App. Cas. 250. No action for a malicious prosecution will lie against a corpora- tion. — Lord Bramwell. 251. A corporation is incapable of malice or of motive. If the whole body of shareholders were to meet, and in so many words to say, " prosecute so and so, not because we believe him guilty, but because it will be for our interest to do it," no action would lie against the corporation, though it would lie against the share- holders who had given such an unbecoming order. — Lord Beam- well. MANAGES. See Company. 7. MANDAMUS. 1. Action of. The Queen v^ Lambourn Valley Eailway Co., 22 Q. B. D, 469. A mandamus should be had recourse to in preference to a preroga- tive writ. — Manisty, J. 3. Alternate Bemedy. The Queen v. Eegisteae of Joint Stock Companies, 21 Q. B. D. 136. A mandamus ought not to be granted where there is another appropriate remedv,-— WiLiS, J.. ^^ ^ Digitized by Microsoft® -^ 2 132 AN EXPOSITION OP ENGLISH LAW JBASD&.'SSVS—contimied. 3, Magna Charta. The Queen v. Bishop of London, 23 Q. B. D, 430. The manda- mus is a high prerogative writ invented for the purpose of supplying defects of justice, and by Magna Charta the Crown is bound neither to deny justice to any one, nor to delay anybody in obtain- ing justice. — Manisty, J. MARINE INSUBANCH. See Insurance, Marine. MABITIME LIEN— CoUision. The Tasmania, 13 P. D. 118. The result of the authorities cited appears to me to be this, that the maritime lien resulting from collision is not absolute. It is a prima facie liability of the ship, which may be rebutted by shewing that the injury was done by the act of some one navigating the ship not deriving his authority from the owners ; and that, by the maritime law, charterers in whom the control of the ship has been vested by the owners, are deemed to have derived their authority from the owners, so as to make the ship liable for the negligence of the charterers, who are, pro hae vice, owners. These propositions do not lead to the con- clusion that where, as between the charterers and the person injured, the charterers are not liable, the ship remains liable nevertheless. On the contrary, I draw from these premises, the conclusion that whatever is a good defence of the charterers against the claim of the injured person is a good defence for the ship, as it would have been if the same defence had arisen between the owners and the injured person. — The President (Sir James Hannen). See Ship. 16. Ship. 17. MABBIA6E. 1. la Bechuanaland according to the Customs of a Native Tribe— English Domicil. In re Bethell. Bethell v. Hilyaed, 38 Ch. D. 234. I con- ceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it be formed on the same basis as marriages throughout Christendom, and be in its essence " the voluntary union for life of one man and one woman to the exclusion of all others." — Stirling, J. Digitized by Microsoft® BY ENGLISH JUDGES. 133 HABBIAGE — contvrmeA. 2. Nullity of— DuiesB — Uental Prostration. Scott v. Sebbight, 12 P. D. 23. The Courts of law have always refused to recognise as binding contracts to which the consent of either party has been obtained by fraud or duress, and the validity of a contract of marriage must be tested and determined in precisely the same manner as that of any other contract. — Butt, J. IlASBIED WOMAK. 1, Chose in action — ^Title of husband. Smart v. Tbanteb, 43 Ch. D. 596. There is now no doubt as regards the choses in action of the wife not reduced into pos- session during the coverture, that if the husband survives he is beneficially entitled to them. If he takes out letters of administration he is entitled to them at law and in equity ; but if he does not take out letters of administration the legal personal representative of the wife is the person to get them in, but, having got them in, holds them in trust for the husband. — LiNDLET, L.J. 2, Harried Women's Property Act — Power of Appointment. In re Eopee. Eopeb v. Donoasteb, 39 Ch. D. 487. A power of appointment is not itself property. — Kay, J. 3, Bestraint on Anticipation. In re Glanvill. Ellis v. Johnson, 31 Ch. D. 539. As regards past income, I do not think that the protection extends to that, and I am of opinion that the Court can interfere with income which has accrued due before the act on which the title of the assignee depends. — Cotton, L.J. 4, Bestraint on Anticipation. In re Little. Haeeison v. Haebison, 40 Ch. D. 424. The Conveyancing and Law of Property Act, 1881, s. 39, enables the Court to modify the dispositions of settlors by dispensing with a restraint on anticipation, but this is a discretionary power which, in my opinion, ought to be exercised with extreme caution, and only where a very strong case for its exercise is made out. If we acceded to the present application I think we should be holding out encouragement to tenants for life with powers of appointment to form schemes of this kind for getting the benefit of the reversionary interests of their children.— Lopes, L.J. Digitized by Microsoft® 134 AN EXPOSITION OP ENGLISH LAW UABBIED WOTHAS—contintied. 5, Separate Estate. In re Lambert's Estate. Stanton v. Lambeet, 39 Ch. D. 633. The course of subsequent decisions has been uniformly in favour of the husband, but in more recent cases the law has been generally- stated to be that (in the absence of express provision to the con- trary) the quality of separate property ceases on the death of the married woman, and that thereupon her undisposed of property devolves just as if the separate use had never existed. Sir G. Jessel, M.E., puts it thus : " The separate use, if I may say so, is exhausted when the wife has died without making a disposition. She enjoyed the income during her life, and she has not thought fit to exercise that which was an incident of her separate estate, the right of disposing of her property. Why should equity interfere further with the devolution of the estate ? " Upon this view of the law the title of the husband is clear. So far as the property is undisposed of the quality of separate property ceases on the wife's death, and consequently the right of the husband accrues just as if the separate use had never existed. — Stieling, J. 6, Separate Property — ^Harried Women's Property Act. Pallisee V. GuENEY, 19 Q. B. D. 521. There must be separate property at the time the contract was entered into if the contract is to bind future separate property. — Lopes, L.J. 7, Separate Property — ^Power of Appointment. Eso parte Gilchrist. In re Aemstrong, 17 Q. B. D. 526. The distinction between a power of appointment over property, and property has always been recognised. — Lord Eshee, M.E. 528. It is not property at all ; it is a power and nothing more. — BOWEN, L.J. 531. No two ideas can well be more distinct ; a " power " is no more " property " than the power to write a book or sing a song. — Fey, L.J. MABKIED WOMEN'S PEOPEKTY ACT, 1882. 1. In re Jupp. Jupp v. Buckwell, 39 Ch. D. 154. In my opinion the Act was not intended to alter any rights except those of the husband and wife inter se. — Kay, J. 2. — - Scott v. Morley, 20 Q. B. D. 125. It seems to me that the Act of 1882 does not alter the legal liability of a married woman at all. It does not prevent the bringing of an action against a Digitized by Microsoft® BY ENGLISH JUDGES. 135 MAEEIED WOMEN'S PROPERTY ACT, WiZ— continued. husband and wife in respect of a contract made by the wife before marriage, and it does not affect the case of a wrongful act committed by a woman during marriage, and, where at common law a married woman was liable to be taken under a capias ad satisfaciendum, in such cases she can now be summoned under sect. 5 of the Debtors Act, 1869, and be dealt with accordingly. 126. It appears to me that sect. 5 of the Debtors Act does not apply to the judgment which can be recovered against a married woman only by virtue of the Married Women's Property Act, 1882.— Lord Eshbe, M.E. See Husband and Wife. 2. Husband and Wife. 3. Husband and Wife. 4. Husband and Wife. 5. MASTER OF SHIP. See Ship. 5. KASTER AND SERVANT, i 1. Helmore v. Smith (2), 35 Ch. D. 456. I could not sit by and allow it to go forth to the world that I countenance the doctrine that the confidential information received by a servant to advance his master's business may be used afterwards by him to advance his own business to the injury of his master's interests. It is part of the implied contract between the master and the servant that such confidential information is not to be used to the master's disadvantage. — Bowen, L.J. 2. Chisholm v. Doulton, 22 Q. B. D. 740. The general rule of law is that a master is not criminally responsible for the acts of his servants^-FiELD, J. 3. Kiddle v. Lovett, 16 Q. B. D. 611. The master is not liable to his servant unless there be negligence on the part of the master. —Lord Cairns, L.C. ; Denman, J. 4, Misconduct of Servant. ' Pearce V. Foster, 17 Q. B. D. 539. Where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. — Lord Esher, M.E. ° Digitized by Microsoft® 136 AN EXPOSITION OP ENGLISH LAW MASTER AND SERVANT— contowd. 541. He has so conducted himself as to make his interest conflict with his duty [The plaintiff had habitually conducted himself in such a manner as would injure the business of his employers if his conduct were known]. — Lindlet, L.J, 542. It is sufficient if it is conduct which is prejudical or is likely to be prejudicial to the interests or to the reputation of the master. They were entitled to the unfettered use of his mind. — Lopes, L.J. 5. Negligence — ^Employers' Liability Act, 1880. Weblin V. Ballard, 17 Q. B. D. 124. The master may (1) tra- verse negligence ; (2) plead contributory negligence ; (3) plead that servant knew of the defect in the ways, plant, or machinery, and did not communicate it to him. — A. L. Smith, J. 6. Volenti non fit injuria — Employers' Liability Act, 1880. Thomas v. Quarteemaine, 18 Q. B. D. 685. The defence arising from the maxim " volenti non fit injuria" has not been affected by the Employers' Liability Act, 1880, and applies to the present case, and there was therefore no evidence of negligence arising from a breach of duty on the part of the defendant towards the plaintiff, and the plaintiff is not entitled to recover. — Bowen and Fry, L.JJ. 698. The two defences, " volenti non fit injwria" and " contri- butory negligence," are quite different. — Bowen, L.J. See Negligence. 2. Negligence. 3. Principal and Agent. 5. Principal and Agent. 6. MAXIMS. See Legal Terms and Maxims. MAYOR'S COURT— Jurisdiction— Cause of action arising whoUy or in part within the city of London or the liberties thereof— Assignment of Debt. Bead v. Brown, 22 Q. B. D. 132. The legal right to a debt is not the same thing as the legal and other remedies for it.— Lord Eshee, M.E. medical ACT, 1858. See Judicial Inquiry. MENS REA. See Criminal Law. Digitized by Microsoft® BY ENGLISH JUDGES. 137 MXBCEANDISE MABES ACT, 1887. To consolidate and amend the Law relating to Fraudulent Marks on Merchandise. HETBOFOLIS — Management Acts — Power of Vestry — Common Law. Vestet of St. James and St. John, Cleekenwell v. Fbaet, 24 Q. B. D. 710. This is a case in which the Wandsworth District Board have taken upon themselves to pull down a house, and to saddle the owner with the expenses of demolition, without notice of any sort. There are two sorts of notice which may possibly be required, and neither of them has been given ; one, a notice of a hearing, that the party may be heard if he has any- thing to say against the demolition ; the other is a notice of the order, that he may consider whether he can mitigate tlie wrath of the Board, or in way modify the execution of the order. Here they have given him neither opportunity. It seems to me that the Board were wrong, whether they acted judicially or minis- terially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions .... establish that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature. — BtLES, J. ; LOED COLEEIDGE, O.J. UINEBALS — Beservation of. Elwes V. Beigg Gas Company, 33 Ch. D. 566. The term " minerals " includes every substance which can be got ■ from underneath the earth for the purpose of profit. — Mellish, and James, L.J J, ; Chitty, J. See Inclosure Act. Eailway Clauses Act. EaUway Company. 6. EaUway Company. 7. UINES and OTHEE DUNEBALS — Whether Clay is included in other Minerals. LoED Peovost and Magisteates of Glasgow v. Faeie, 13 App. Cas. 669. I cannot help thinking that the true test of what are mines and minerals in a grant was suggested by James, L.J., in Eext V. Gill, that a grant of " mines and minerals " is a question of fact " what these words meant in the vernacular of the mining world, the commercial world, and landowners," at the time when they were used in the instrument. — Loed Halsbury, L.O. 672. When su<^,-j^yj^ J^pJ^g^^against the owner of the 138 AN EXPOSITION OP ENGLISH LAW UINES AND OIHEB JB.nSl:E^RA^LS— continued. surface, I ask myself, Did anyone who wanted to purchase or acquire a clayfield, whether by disposition or reservation, ever bargain for it under the name of a right of working minerals ? . . . The thing to be reserved is, to my mind, essentially the same, being neither more nor less than the right to work such substances and strata as are ordinarily known by the denomination of minerals in contracts between sellers and purchasers, or superiors and feuars. — Lord Oedinakt (Lobd McLaren) ; Loed Hals- , BUBY, L.C. 675. The only principle which I can extract from these autho- rities is this : that in construing a reservation of mines or minerals, whether it occur in a private deed or in an Inclosure Act, regard must be had, not only to the words employed to describe the things reserved, but to the relative position of the parties in- terested, and to the substance of the transaction or arrangement which such deed or act embodies. Mines and minerals are not definite terms; they are susceptible of limitation or expansion, ^ according to the intention with which they are used. — Lobd Watson. 685. What valid distinction could be drawn between a seam of coal or ironstone a hundred yards beneath the surface, and one which came within two feet of it ? And if the latter would be within the reservation, how can a seam of clay similarly situated be excluded ? — Lobd Heksohell. 696. I am inclined to think that when you make the word " mines " include that which is in no sense a mine, you do some- thing more than avoid a narrow and restricted construction. — Lobd Macnaghten. MIKIST£BIAL;ACT. See Judicial Function. MISDESCKIPTION. See Specific Performance. 2. MISFBISION. See Criminal Law. 10. MISBEFBESEKIAIION. See Contract. 4. Deceit, action of. MONEY-DEALEB. See Banker. 2. Digitized by Microsoft® BY ENGLISH JUDGES. 139 MONTTUENX. See Burial, right of. Will. 1. UOBTGAGE, 1, — — CoUateral advantage. James v. Keek, 40 Ch. D. 459. A man shall not have interest for his money and a collateral advantage besides for the loan of it, or clog the redemption with any by-agreement. — Kat, J. 460. The rule that a mortgagee should not be allowed to stipulate for any collateral advantage beyond his principal and interest did not depend on the laws against usury. — Loed EoMiLLY ; Kat, J. 2. Collateral advantage. Mainland v. Upjohn, 41 Ch, D. 126. The law with regard to this is not affected by the repeal and abolition of the usury laws. 141. Upon a loan of money on a risky security it is legitimate, between mortgagor and mortgagee, to deduct from the actual amount a very considerable bonus — in that case as much as £300 out of £1000 ; and where that is deliberately done, and the parties completely understand one another, the mortgagor cannot after- wards re-open it, but is bound to let his property remain as a security, not for the money he actually received, but for the larger sum expressed to have been advanced.— Kindeesley, V.O. ; Kay, J. 144. Of course, all this is quite independent of any case of improper dealing, exorbitant amount, great oppression, dealing with an ignorant person who has not got proper advice, and so on. —Kay, J. 3. Consolidation, Gbiffith V. Pound, 45 Ch. D. 553. 4 Notice. In re Cousins, 31 Ch. D. 675. Notice must be brought home to trustees to be effectual. — Ohitty, J. g_ Policy of Insurance — Fetter on Bedemption — Fresnmption. Maequess of Noethampton V. Pollock, 45 Ch. D. 210. I need not quote authorities to shew that Courts of Equity never will allow the equity of redemption to be cut off except by force of time or by the order of the Court. The mortgagor must be fore- closed if he does not redeem. Lord Hardwicke says that, as plainly Digitized by Microsoft® 140 AN EXPOSITION OF ENGLISH LAW MORTGAGE— contiwMed. as possible, and it has always been the rule established in Courts of Equity. " This Court," says Lord Hardwicke in Toomes v. Conset, " will not suffer, in a deed of mortgage, any agreement in it to prevail, that the estate become an absolute purchase in the mortgagee upon any event whatsoever." 212. It is very true that there are cases,, as I pointed out, where the policy is affected by the mortgagee, and there it belongs to him. But here, from the way in which this was created, in my opinion, the mortgagor had just as much interest in it as if it had been a policy originally belonging to him ; by the terms of its creation the Earl had an interest in it, that is to say he had a right to get the surplus of it after paying all the moneys which he had borrowed. — Cotton, L.J. 217. A presumption is a mere inference of fact to supply the place of better information. It cannot displace express conven- tion between the parties. In the clear light of a distinct agree- ment upon the point the presumption pales its ineffectual fire and disappears. — BowEN, L.J. 6. Priority — ^Possession of Title Deeds — ^Notice — Equitable Mortgage. Union Bank of London v. Kent, 39 Ch. D. 245. It is an established rule, that as regards charges on real estate, notice is not necessary in order to complete the security. Where an equit- able charge is given on personal estate in the hands of a trustee, notice to the trustee is necessary as against subsequent incum- brancers, but not so in the case of land. — Cotton, L.J. [An equitable mortgage by deposit of a building agreement not postponed to subsequent equitable mortgage by deposit of the lease, though it would have been postponed if there had been a legal mortgage of the lease.] 7, Eedemption — ^Fledge. Bank of New South Wales v. O'Connor, 14 App. Cas. 282. If a chattel be pledged, the general property remains in the pledgor. The pledgee has only a special property. According to the doctrines of common law, that special property is determined if a proper tender is made and refused. The pledgee then becomes a wrong-doer. The pledgor can at once recover the chattel by action at law. But it is not so in the case of a mortgage where the mortgagor's estate is gone at law, nor is it so in the case of an equitable mortgage. A mortgagor coming into equity to redeem, must do equity and pay principal, interest, and costs Digitized by Microsoft® BY ENGLISH JUDGES. 141 MORTGAGE— continued. before he can recover the property which at law is not his. So it is in the case of an equitable mortgage. It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth, will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. — Lobd Macnaghten-, 8. Sale by First Mortgagee— Incorrect Particnlars— Measure of Damages. ToMLiN V. Luce, 43 Ch. D. 191. 9, Solicitor — Mortgagee — Clogging the Bedemption. Field v. Hopkins, 44 Ch. D. 530. According to the mortgage law recognised in this country, a mortgagee cannot get anything from the estate beyond his principal, interest, and costs ; therefore profit-charges, which he is not entitled to be paid, stand on the same footing as commission, which he clearly cannot charge. — Kat, J. See Equitable Mortgage. MOBTGAGSE, See Annuitants. MOBTGAGEE IS FOSSESSIOIT. 1, Account. White v. City of London Bkeweey Company, 39 Ch. D. 563. No principle is better established than the principle, that a mort- gagee shall not get any advantage out of the mortgage fund beyond his principal and interest. Between a mortgagor and mortgagee the latter, when in possession, must account for the actual rents and profits received or made by him, if these rents and profits can be actually ascertained. Where they cannot be, there must be a resort to a fair occupation rent. — Nokth, J. 2. Account. White v. City of London Bbeweey Company, 42 Ch. D. 243. Then the mortgagor commits breaches of his covenants, and the mortgagees take possession. Now they are bound to account to him after the sale — for the proceeds of the sale — for any rents which they have received, or but for their wilful neglect or default might have received, from the property while they were in possession — and for any profits which, during that period they made out of and by the mortgaged property. They have not to account for anything more, and as against that they are entitled Digitized by Microsoft® 142 AN EXPOSITION OP ENGLISH LAW UOBTGAGEE IN POSSESSION— con^mwi. to set the expenses which they have fairly incurred in consequence of having been obliged to take possession, and keep possession, and to sell. — Loed Eshbe, M.E. MORTOAGOB AND MOBTGAGEE. 1. In re Wallis. Ex parte Lickoeish, 25 Q. B. D. 180. It has been settled for many years that the rights of mortgagor and mortgagee inter se, depend upon the contract between them, and that when there is no express contract, but only the ordinary contract which arises out of the relation of mortgagor and mortgagee, the mortgagee cannot charge the mortgagor with remuneration for his own personal services in relation to the mort- gage debt or the mortgage security. This rule is not limited to solicitors, but it extends to any mortgagee who is capable of giving and who does give his own personal services in relation to the mortgage debt or security. — LoBD Eshee, M.E. 2, 3. Magnus v. Queensland National Bank, 36 Ch. D. 32. A mort- gagee after his debt is paid off, is in a fiduciary position towards the mortgagor with respect to the satisfied security. There is an implied trust to surrender the estate to the person entitled to demand it The satisfied mortgagee owes a duty to the mort- gagors. He is bound to take care that the security gets back to the mortgagors, or to some one to whom they authorize it to be conveyed. — Kay, J. KiNNAiED V. Trollope, 39 Ch. D. 642. Where a mortgagee has obtained a decree for foreclosure absolute, he may still sue the mortgagor on the covenant provided he retains the mortgaged property in his possession, but by so suing he gives the mortgagor a new right of redemption, notwithstanding the foreclosure, and the mortgagor may file a bill to redeem. If, however, the mort- gagee has sold the mortgaged property, a Court of Equity will interfere to restrain an action on the covenant. In these cases the mortgaged property had ceased to be vested in the person who insisted on his legal rights under the covenant to pay. 643. A mortgagee may pursue all his remedies at once, he may bring actions of covenant and ejectment, and at the same time proceed to foreclose the mortgage. — Stirling, J. Digitized by Microsoft® BY ENGLISH JUDGES. 143 UOBTGAGOB AND MORTGAGEE— coijimwed. 4. — — Eqiiitable mortgage by Deposit — Costs of Mortgage. National Peovincial Bank of England v. Games, 31 Ch. D. 582. A mortgagee is entitled to be allowed in account the cost of all proceedings reasonably taken by him to enforce his rights under his mortgage contract, e.g. (1) the costs of an action for the recoyery of the debt ; (2) costs of correspondence with a surety who had given a promissory note for part of the debt ; (3) all expenses properly incurred with reference to the preparation of a legal mortgage which the mortgagor refused to execute ; (4) the expense of such inspection of the title deeds as was necessary for preparing it (but not the costs of investigating the mortgagor's title) ; (5) costs of correspondence with the mortgagor as to the legal mortgage. 5. Tenant's right to redeem. Taen V. TuKNEB, 39 Ch. D. 460. Any • person entitled to an interest carved out of the fee simple is entitled to come in and redeem (subject to other equities and in his proper place). — Kekewich, J. UOBTMAIN and CHABITABLE TTSES act, 1888. MUNICIPAL ELECTION— Acceptance and Vacation of Office. The Queen v. Mayoe, &o., op Bangoe, 18 Q. B. D. 361. If a person holding one office be elected to another, and accepts that election, he thereby vacates the office he held. — Loed Eshee, M.E. Digitized by Microsoft® ]44 AN EXPOSITION OF ENGLISH LAW N. NATIONALITY— Naturalization. In re Bouegoise, 41 Ch. D. 321. The question whether these children are English or French appears to me to be one of very- great difficulty, and I do not pretend to decide it. — Lindlet, L. J. NATURALIZATION. See Nationality. NAVIGATION. ;SeeShip. 8. NECESSARIES. See Infant. 4. Ship. 17. NEGLIGENCE. 1, Contributory Negligence. Wakelin V. London and South Western Eailwat Company, 12 App. Cas. 51. Contributory negligence in such a case as the present seems to me to consist of the absence of that ordinary care which a sentient being ought reasonably to have taken for his own safety, and which, had it been exercised, would have enabled him to avoid the injury of which he complains, or the doing of some act which he ought not to have done, and but for which the calamity would not have occurred. I have used the words " ordinary care ; " extraordinary caution is not required, but if by the use of ordinary caution he might have avoided the injury, and did not, he is not entitled to recover damages. — Lord Fitz- G-EKALD. 2, Master and Servant — Conunon Employment. Johnson v. Lindsay, 23 Q. B. D. 513. We know of no case where it has been held that a man is liable for an injury caused by his servant when the man doing the injury and the injured man are to be considered as employed in the work of another, who is the common master of both. — Lopes, L.J. 517. It must be presumed that a servant takes upon himself the risk of any injury he may sustain by the negligence of another servant under the same master and in the same employment, and that such risk is part of the consideration for the wages which he is entitled to receive. — Kelly, C.B. ; Fey, L.J. Digitized by Microsoft® BY ENGLISH JUDGES, 145 NEGLIGENCE— contmued. 3. " Volenti non fit injuria." Membeby V. Geeat Western Eailwat Company, 14 App. Cas. 179. The plaintiff was also prevented from recovering because he had voluntarily done the work with full knowledge of the risk he ran. — Loed Halsbuey, L.O., and Loed Bramwell. See Estoppel. 2. Master and Servant. 5. Ship. 10. NEGOTIABLE INSTBTTUENT. See Promissory Note. 3. NEMO EST affiEES VIVENTIS. See Contingent Title. NEW TBIAL. 1. Meteopolitan Eailway Company v. Weight, 11 App. Cas. 153. It is not enough that the judge, who tried the case, might have come to a different conclusion on the evidence than the jury, or that the judges, in the Court where the new trial is moved for, might have come to a different conclusion, but there must be such a preponderance of evidence, assuming there is evidence on both sides to go to the jury, as to make it unreasonable, and almost perverse, that the jufy when instructed and assisted properly by the judge should return such a verdict. — Eael op Selboene, L.C. 154. The verdict ought not to be disturbed unless it was one which a jury, viewing the whole of the evidence reasonably, could not properly find. — Loed Heeschell, L.C. 2. Excessive Damages — Action for Libel. Peaed V. GtEAHaM, 24 Q. B. D. 55. If the Court thinks that, having regard to all the circumstances of the case, the damages are so excessive that no twelve men could reasonably have given them, then they ought to interfere with the verdict. If the authorities are looked at, that will be found to be the rule of con- duct which the judges have adopted. If the Court can see that the jury in assessing damages have been guilty of misconduct, or made some gross blunder, or have been misled by the speeches of the counsel, those are undoubtedly sufScient grounds for inter- fering with the verdict, but they come within the larger rule of conduct which I have laid down, and aje grounds which ars included in that rule. Digitized by Microsoft® h 146 AN EXPOSITION OF ENGLISH LAW NEW TMAL— continued. In actions of libel there is another rule, which is this : — the jury in assessing damages are entitled to look at the whole con- duct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial. — Lobd Eshee, M.E. NEW TBUSTEES— Their duties. Hallows v. Lloyd, 39 Ch. D. 691. What are the duties of persons becoming new trustees of a settlement ? Their duties are quite onerous enough, and I am not prepared to increase them. I think that when persons are asked to become new trustees, they are bound to enquire of what the property consists that is proposed to be handed over to them, and what are the trusts. They ought also to look into the trust documents and papers to ascertain what notices appear among them of incumbrances and other matters affecting the trust. — Kekewich, J. NEWSFAFEB, See Contempt of Court. 1. Copyright. 5. Libel. 4. NEXT rBIENS— Duties and Liabilities of, discussed. Ehodes V. SwiTHENBANK, 22 Q. B. D. 577. If the next friend does anything in the action beyond the mere conduct of it, what- ever is so done must be for the benefit of the infant, and if, in the opinion of the Court it is not so, the infant is not bound. — Loed Eshee, M:.E. 579. He is the ofScer of the Court to take all measures for the benefit of the infant in the litigation. — Bowen, L.J. A next friend has no power to enter into a compromise by which the infant gives up a right and the next friend obtains a benefit. —Fey, L.J. NOTICE. See Mortgage. 4. Mortgage. 6. Metropolis. NUISANCE— Ballway Company. Beown^;. Easteen and Midlands Eailway Company, 22 Q. B. D. 392. If a person erects on his own land anything whatever Digitized by Microsoft® BY ENGLISH JUDGES. 147 mJlSASC^—cmitinued. calculated to interfere with the convenient use of the road, he commits a nuisance. Every railway which, without express parliamentary sanction, ran by the side of a highway so as to frighten horses, &c., would be a nuisance but for the parliamentary authority under which it was made. — Stephen, J. See Injunction. 5. Digitized by Microsoft® 148 AN EXPOSITION OF ENGLISH LAW o. OATHS ACT, 1888. 1, Obiter Dicta. Mills v. Aemsteong. The Beenina, 13 App. Cas. 12. I believe that an experienced lawyer may be, as it were, instinctively right, without at the moment being able to give a good reason for his opinion. — LoED Beamwell. 2- Slatteet v. Natloe, 13 App. Cas. 451. It might be wiser, even at the expense of some inconvenience to the community, to make some concession to one of the most softening and refining of human feelings, the reverence and love that is felt for the dead, and the desire of resting in the same spot with them — Loed Hobhousb. 3, Trade diBhonesty. In re Wood's Tbade-maek. Wood v. Lambeet & Butlee, 32 Ch. D. 264. If practices of this description are as common as they are alleged to be, the name of an English manufacturer or merchant will cease to be an honourable one, and will carry with it, not notions of honesty and fair dealing, but of covin fraud and deceit. — Fey, L.J. 4. In re Dewehest's Teusts, 33 Ch. D. 419. I have known cases in which this Court has declined to be bound by previous decisions of the Court of Appeal, even when pronounced by such eminent judges as Lord Justice Knight-Bruce and Lord Justice Turner. I doubt whether Lord Justice James did decide this point ; but if he did, we must overrule his decision, so that the case may no longer be treated as an authority. — Cotton, L.J. 5. Cooke v. IJew Kivee Company, 38 Ch. D. 71. I believe that obiter dieta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the judges who have uttered them, and are a great source of embarrassment in future cases. — Bowen, L.J. 6. Evidence, Onus of. Magnus v. Queensland National Bank, 37 Ch. D. 478. The question may be decided by applying the simple principle of law Digitized by Microsoft® BY ENGLISH JUDGES. 149 OATHS ACT, 16ii— continued. that, in the absence of evidence, no illegality or irregular pro- ceeding in the transaction of business is to be presumed.— BOWEN, L.J. OFFICEE OF COUKT. Ex parte Simmonds. In re Caenac, 16 Q. B. D. 312. The Court will direct its officer to do that which any high-minded man would do, viz., not to take advantage of the mistake of law.— '' LOKD ESHEB, M,E. OFFICIAI, IIQtJIDATOE. See Company. 24. OFFICIAl EECEIVEB. See Bankruptcy. 10. OPEN COVEE. See Insurance, Marine. 5. OPEN SPACES ACT, 1887. OSSES. Bateman v. Poplab Disteict Boaed of Woeks, 33 Ch. D. 381. The existence of an order does not depend upon its being drawn up. — Cotton, L.J. See Appeal. 8. Jurisdiction. 2. OWNEE— Lien— Salvage— Eatification. Faxcke V. Scottish Impeeial Insueance Company, 34 Ch. D. 248. Work and labour done or money expended by one man to preserve or benefit the property of another do not, according to English law, create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will . . . with regard to salvage, general average, and contribution, the maritime law differs from the common law . . . With regard to ordinary goods upon which labour or money is expended with a view of saving them or benefiting the owner, there can, as it seems to me, according to the common law be only one principle upon which a claim for repayment can be based, and that is where you can find facts from which the law will imply a contract to repay or to give a lien. It is perfectly true that the inference of an understanding between the parties — which you may translate into other language by calling it an implied con- Digitized by Microsoft® 150 AN EXPOSITION OP ENGLISH LAW O'W'S'ESi— continued. tract — is an inference which will unhesitatingly be drawn in cases where the circumstances plainly lead to the conclusion that the owner of the saved property knew that the other party was laying out his money in the expectation of being repaid ... A man can ratify that which purports to be done for him, but he cannot ratify a thing which purports to be done for somebody else. — BOWEN, L.J. Digitized by Microsoft® BY ENGLISH JUDGES. 151 P. PAEENT. See Habeas Corpus. 1. FABISH SEOISTEBS, See Evidence. PAKIIAMENT— County Vote. Watson v. Black, 16 Q. B. D. 276. A oestm que trust is not entitled to a vote unless he is in actual possession or receipt of the rents or profits. PAST PERFORMANCE. See Company. 5. Illegal Contract. PARTICULARS OF DEMAND— Discovery. MiLLAB V. Haepee, 38 Ch. D. 112. It is good practice and good sense that where the defendant knows the facts and the plaintiffs do not, the defendant should give discovery before the plaintiffs deliver particulars. — Bowen, L.J. PARTNERS — Semce on. Shepheed v. Hiesch, Peitohabd and Company, 45 Ch. D. 235. Service on one partner within the jurisdiction is good service on all the partners, although the partnership is a foreign partnership, and all the partners reside and are domiciled out of the juris- diction. — Chitty J. PARTNERSHIP. 1. Expiration of Term — Continnation. Neilson V. MossEND Ieon Company, 11 App. Cas. 308. When the members of a mercantile firm continue to trade as partners after the expiry of their original contract, without making any new agreement, that contract is held in law to be prolonged or renewed, by tacit consent, or, as it is termed in the law of Scotland, by " tacit relocation." The rule obtains in the case of many contracts besides that of partnership ; and its legal effect is, that all the stipulations and conditions of the original contract remain in force, in so far as these are not inconsistent with any implied term of the renewed contract. The main distinction between the old contract and the new in the present case consists in this, that the latter is a contract determinable at will. It is an implied term of^^^l^gntji^cUha^^ch partner has the right 152 AN EXPOSITION OF ENGLISH LAW TAXnU'EB.SSIP— continued. instantly to dissolve the partnership whenever he thinks proper. The right must, of course, be exercised in bond fide, and not for the purpose of deriving an undue advantage from the state of the firm's engagements ; but no question of that kind arises here. — LoED Watson. 2, Share of Profits— Bovill's Act. Badeley v. Consolidated Bank, 38 Ch. D. 248. I think that the ratio decidendi (of Cox v. Hickman) is that the proposition laid down in Waugh v. Carver, viz., that the participation in the profits of a business, does of itself, by operation of law, constitute a partnership, is not a correct statement of the law of England (it has not been overruled, but it is qualified certainly), but that the true question is, as stated by Lord Cranworth, whether the trade is carried on, on behalf of the person sought to be charged as a partner, the participation in the profits being a most important element in determining that question, but not being in itself decisive ; the test being, in the language of Lord Wensleydale, whether it is such a participation of profits as to constitute the relation of principal and agent between the person taking the profits and those actually carrying on the business. — ^Lokd Black- burn ; Cotton, L. J. PASTNEBSHIP ACT, 1890. To declare and amend the Law of Partnership. PAETHEBSHIP DEBT— Joint and Separate Creditors— Ees judicata. In re Hodgson. Beckett v. Eamsdale, 31 Ch. D. 184. Where some members of a firm or some joint contractors are sued and judgment is obtained against them, the matter then passes into a res judicata, and is to be treated thenceforth as a debt against those persons only against whom that judgment has been reco- vered, and recourse cannot be had to a person who was not joined in that action. There is an exception to that rule, one which has long prevailed in equity, to the effect that when one member of a firm has died, though at law the debt would from that time forth be only the debt of the survivors, in equity recourse might also be had to the estate of the deceased partner.— Sie J. Hannen. 188. There is in the cases of joint contract and joint debt, as distinguished from the cases of joint and several contract and joint and several debt, only one cause of action.— Bowen, L.J. ^ASSENGES'S LITGOAOE. See Kailway Company. 8. Digitized by Microsoft® BY ENGLISH JUDGES. 153 PATENT. 1. In re Aveey's Patent, 36 Ch. D. 317. A man who, having learned abroad .... that somebody else had invented something, quietly copied the invention, and brought it over to this country, and then took out a patent .... is a first and true inventor within the statute, if the invention, being in other respects novel and useful, was not previously known in this country. — Jessel, M.B. ; Stieling, J. 2, Objections to. Badischb Anilin und Soda Fabeik v. Levinstein, 12 App. Cas. 711. Objections taken to patent : that (1) it is not new ; (2) it is not useful ; (3) the specification did not sufficiently ascertain and describe the nature of the invention.^LoED Halsbubt, L.C. 3. Provisional Specification. ViCKEES Sons & Co. v. Siddell, 15 App. Cas. 499. I think it is an essential condition of a good patent that the invention described in the provisional should be the same as that in the complete specification, and I think the 3rd sub-sect, of sect. 26 preserves this as a ground upon which an action for the infringe- ment of a patent right may be defended, and a ground upon which a patent may be revoked. — Loed Halsbuey. 4. Specification. Edison and Swan Electeic Light Company v. Woodhouse, 32 Ch. D. 524. An inventor has no right to put into his final specification as part of his invention a discovery which he had not made at the time when he filed his provisional specification. — Butt, J. PATENTS, DESIGNS AND TEADE MAKES ACT, 1888 PATEHNITY, See Legitimacy. 1. PATH. See Highway. 1. PENALTIES, PENAL AND LtftTIIDATED. LoED Elphinstone v. Monkland Ieon and Coal Company, 11 App. Cas. 332. The sum, although described in one part of the agreement, as " the penalty therein stipulated " was not a penalty ; but estimated or stipulated damages.— Loed Watson, Loed Heeschell, L.O., Lord Blaokbuen, Loed FitzGbeald, Loed Halsbuby. Digitized by Microsoft® 154 AN EXPOSITION OP ENGLISH LAW PERILS OF THE SEA. See Insurance, Marine. 6. Ship. 6. PEBPETTJITY—Eemoteness— Possibility on a possibility. Whitby v. Mitchell, 44 Ch. D. 92. The cases of a possibility upon a possibility . . . gave rise to this important rule, that, if land is limited to an unborn person during his life, a remainder cannot be limited, so as to confer an estate by purchase on that person's issue ... I have always understood that to be the settled rule of law, and I am not aware of any decision or dictum which in any way impugns it. But it is said that the old rule became obsolete, or merged or confused in the more modern law of perpetuities . . . This is a mistake. The rule against perpetuities was invented much later on account of the law of shifting uses and executory devises. When shifting uses and executory devises were invented, it became necessary to impose some limit upon them, and the doctrine of perpetuities has arisen from that necessity. The old rule against double possibilities is a rule that has not been abrogated, and it is founded on very good sense, because it is not desirable that land should be tied up to a greater extent than that allowed by the rule. So far from supporting ingenious devises for tying up land longer, the time has long gone by for that. LiNDLEY, L.J. PETITION OF EIGHT— Contract by Crown. WiNDSOE AND Annapolis Eailway Co. V. The Queen and The Western Counties Eailway Co., 11 App. Cas. 613. Whenever a valid contract has been made between the Crown and a subject, a petition of right will lie for damages resulting from a breach of that contract by the Crown. — Lord Watson. 614. The Sovereign cannot be sued in a petition of right for a wrong done by the executive. — Lord "Watson. PEWS. See Ecclesiastical Law. 8. Eent Charge. pleadings. 1, Inconsistent Pleadings. In re Morgan. Owen v. Morgan, 35 Ch. D. 500. To go the length of saying that no inconsistent pleading can be pleaded, appears to me not warranted by the rules and contrary to the established practice of the Courts. There is no difference in this respect between the practice in the Chancery Division and the Digitized by Microsoft® BY ENGLISH JUDGES. 155 ttHADISOtS— continued. practice in the Queen's Bencli Division, where, we know, ever since the Judicature Acts have passed, inconsistent defences, such as never indebted and payment, are daily pleaded, and they give rise to no trouble. They are not considered embarrassing, and if you add to them a set-off, it does not make them embarrassing. — LiNDLEY, L.J. 2. Groundless Defence. Dadswell V. Jacobs, 34 Ch. D. 284. Any pleading which dis- closes no reasonable ground of action or defence is demurrable at once, and it is something more, it is perfectly frivolous. That is the sort of thing that is struck at by Order xxv., r. 4. — LiNDLET, L.J. PLEDGE. 1. Seath v. Mooee, 11 App. Oas. 374. A pledge or security without delivery of possession is, I think, not good. — Lord Blackbubn. 2. BUI of Sale. Hilton v. Tuckek, 39 Ch. D. 673, Neither of the Bills of Sale Acts of 1878 or 1882, was intended to be applied, or is applicable to a parol contract, or to anything of the character of a pledge. 676. I must decide this question of law which has been raised, whether it is essential to a pledge, not that there should be a delivery, because that is admitted to be essential, but that delivery should be actually contemporaneous with the advance of the money. When I say actually contemporaneous, I am not pro- posing to discuss a case where delivery has followed within an hour or a day afterwards, so that in support of the honesty of the transaction one might assume them to be practically contempo- raneous, though not identical in point of time ... I am at a loss to understand why delivery should be actually contemporaneous with the advance. It seems to me that the transaction may be divided into two parts, and that though fraud may intervene in any case, however careful lawyers or actors may be, stiU remember- ing that in the meantime there is no property in the lender until he has got the goods, it seems to me a very small opening for fraud to hold that the delivery need not be actually contempora- neous with the pledge.— Kekewioh, J. ;See Bill of Sale. 12. Mortgage. 7. Digitized by Microsoft® 156 AN EXPOSITION OF ENGLISH LAW POLICY OF INSUBANCE. 8ee Mortgage. 5. FOOB LAW— Settlement. OVEBSEEES OP MANCHESTER V. GrUARDIANS OF OkMSKIBK UnION, 24 Q. B. D. 682. By this statute Parliament intervened once for all, and the interpretation placed upon the statute is that a legitimate child under the age of sixteen shall not be capable of acquiring a settlement for itself, but shall follow its parentage settlement under that age, and that an illegitimate child is to be treated as far as may be, as though it were legitimate ; it cannot of course, be in all respects so treated. — Lobd Coleeidge, C.J. FOOS-BATE— Rateable Value— Hypothetical Tenant. Smith v. Chtjechwaedens, &c., op Bibmingham, 22 Q. B. D. 219. It is to no purpose to say that such property cannot in practice be let by the year ; no more can railways, canals, docks, or gasworks- The Act of Parliament requires the assumption of a tenancy from year to year to be made, and you can no more impugn the hypo- thesis of such a tenancy in rating matters than in logic you are permitted to deny your opponent's hypothetical premiss. — Wills, J. FOSSESSION. Bygeave v. Meteopolitan Boaed op Woeks, 32 Ch. D. 152. The Court has no power to take property from the owner except under some statutory provision. A rightful owner rightfully in possession is entitled to hold the property till it is decided in due form of law that some other person is entitled to it. — Bowen, L.J. POSSIBILITY ON A POSSIBILITY. See Perpetuity. POVEETY. See Charity. 4. Costs. 13. POWEE or APPOINTMENT. 1, Fraud on Power, In re Crawshay. Ceawshay v. Cbawshay, 43 Ch. D. 625. The donee of a limited power of appointment may well execute it in favour of an object of the power, though he believes and knows that the appointee will at once dispose of the property in favour of persons who are not objects of the power. But if, besides this belief and knowledge, there is a bargain between the appointor Digitized by Microsoft® BY ENGLISH JUDGES. 157 70WES OF AYBOTSTViEST— continued. and appointee that the appointee shall make a disposition in favour of persons not objects of the power, and the just result of the evidence is, that the appointment would not have been made but for the bargain, then the appointment is bad. The question is, to which of these two classes of cases the present case belongs. — Kniqht-Bkuce, L.J. ; Noeth, J. 2. Particular Power — Excessive Execution. In re Poetee's Settlement. Poetee v. De Quetteville, 45 Ch. D. 189. I do not think it is right or possible to hold that the appointment of the life estate is warranted by that power. As I understand that power, it is a power to appoint in tail neither more nor less, among such children — of course, children only — as the appointors may select. I do not think the power of appointment warrants the power to appoint for life. — Fey, L.J. See Married Woman. 2. Married Woman. 7. POWEB OF ATTOBKEY— Xadorsement. Mutual Peovident Land Investing and Building Society v. Macmillan, 14 App. Cas. 597. A statutory declaration was, for the protection of the purchaser, endorsed on the conveyance that the attorney had not received any notice of the revocation of the power of attorney by death or otherwise. POWEES, FEATTD ITPON. Leadee v. Dupfey, 13 App. Cas. 303. A device resorted to for the purpose of enabling the tenant for life to recapture the pro- perty which he had ostensibly settled for the benefit of his family is a fraud upon the power. — LoED Halsbuey, L.C. PEACTICE. 1. Correcting Order. TucKEE V. New Beunswick Teading Company op London, 44 Ch. D. 252. If Mr. Justice Chitty had been applied to, he might have set this matter right ; for though the order had been passed and entered, he had jurisdiction to correct it as not rightly expressing the order he had made. — Cotton, L.J. 2, Jniisdiction of Uaster. Beyant V. Beading, 17 Q. B. D. 130. Order liv., r. 12, gives master authority and jurisdiction of judge, but does not make his decision that of a Court or judge (so as to preclude an appeal to a iudge at Chambers)..— Loed Bshee, M.E. •' ° Digitized by Microsoft® 158 AN EXPOSITION OP ENGLISH LAW FBEPEBEITCE SHABES. See Company. 15. PKEKOGATIVE WRIT. See Mandamus. 1. PEESCRIPTION— Lost Grant— Presumed Grant.— 2 & 3 WilL 4, c. 71. TiLBUKY V. SiLVA, 45 Ch. D. 107. Under the 4th section of the Prescription Act, evidence of user since the year 1829, interrupted four years before action brought, that interruption being acquiesced in, would not be sufficiejit to establish a prescriptive right. To prove a prescriptive right you must go back very much further. Here the only attempt to prove a prescriptive right under the Act is by evidence of user for that period of time. That seems to me of itself quite fatal to the claim of right by prescription under the statute. — Kay, J. 118. It is the principle of the English law to suppose a legal origin for long-established user, to assume that there is some justification to be found for acts of open enjoyment which have continued as long as the memory of living people extends ; we are in no way departing from or infringing this principle of law. 121. We are not now considering a case of immemorial enjoy- ment — a case of a series of acts continuing from time out of mind — for which it is the duty of the Court to strain every nerve to find a legal origin. We are examining a case of a user which must be confined to the last forty-five years. — Bo wen, L.J. See Air. Easement. 1. Light. 1. Light. 2. PEESUMPTIOir. See Legitimacy. 1. Mortgage. 5. Will. 10. PBESTIMPTION OF LAW. See Ecclesiastical Law. 8. PRINCIPAL AND AGENT. 1. Losing v. Davis, 32 Ch. D. 631. As between the principal and agent, if the instructions are ambiguous, the principal cannot turn round on the agent and say that the meaning of the instruc- tions was different. — Chitty, J. Digitized by Microsoft® BY ENGLISH JUDGES. 159 PEINCIPAI AND AGtEST— continued. If a principal gives an order to an agent in such uncertain terms as to be susceptible of two different meanings, and the agent bond fide adopts one of them and acts upon it, it is not competent to the principal to repudiate that act as unauthorized because he meant the order to be read in the other sense of which it is equally capable. — Lobd Chelmsford ; Chitty, J. 2. Blackbuen v. Vigors, 17 Q. B. D. 559. The true principle of law is a rule of right and wrong ; a man cannot, by delegating to an agent to do what he might do himself, obtain greater rights than if he did the thing himself, The alleged principle is not the law of England in any case. — Lord Esher, M.E. 3. Contract by Agent — Batification. Bolton Partners v. Lambert, 41 Ch. D. 298. Where you have a contract in letters or other such like documents, that is to say, not reduced into a document of legal form ; you are bound to look, not only at what occurred before — what led up to the contract — but also at what occurred afterwards, with regard to the contract, in order to determine the question whether there was a completed contract, or whether the parties were in truth only negotiating. 301. The doctrine of ratification is this, that when a principal on whose behalf a contract has ]been made, though it may be made in the first instance without his authority, adopts it and ratifies it, then, whether the contract is one which is for his benefit and which he is enforcing, or which is sought to be enforced against him, the ratification is referred to the date of the original contract, and the contract becomes as from its inception as binding on him as if he had been originally a party. — Kekewioh, J. 303. If an offer is made and accepted, subject to the preparation of a formal agreement, there is no contract till the formal agree- ment is signed, but the cases shew that a mere expression of an in- tention to have further documents does not prevent there being a contract. — Co:?ton, L.J. 309. The plaintiffs subsequently did adopt the contract, and thereby recognised the authority of their agent Scratchley. Directly they did so the doctrine of ratification applied and gave the same effect to the contract made by Scratchley as it would have had if Scratchley had been clothed with a precedent authority to make it. The ratification is dragged back as it were, and made equipol- Digitized by Microsoft® 160 AN EXPOSITION OF ENGLISH LAW PEINCIPAl AND AQ^TUT— continued. lent to a prior command. [Omnis raUhaUtio retrotraMtwr et man- dato equiparatur.] — Lopes, L.J. 4. Liability. British Mutual Banking Company v. Chaenwood Foeest Eail- WAY Company, 18 Q. B. D. 717. I know of no case where the em- ployer has been held liable when his servant has made statements not for his employer, but in his own interest. — Lord Esher, M.R. g_ Master and Servant — Bribes — Witness. Mayor, &c., of Borough of Salford v. Lever, 25 Q. B. D. 374. When a contractor bribes a servant in order that a servant may get for the contractor the master's orders, the master has two dis- tinct causes of action — one against the servant for the profit he has made by the bribes ; the other against the contractor and the servant jointly and severally for any loss that the master may have suffered by the joint fraud of the contractor and the servant. I agree, further, that the master, even though he takes from the servant the bribes which the servant has received from the con- tractor, is under no obligation to give credit for those bribes in reduction of the damages which the master has suffered by the joint fraud of the contractor and the servant, unless, indeed, the master knew of the servant taking the bribes and allowed him to do so. 376. An agreement to present an intended witness with moneys proportioned to the effect of his evidence is an immoral agreement and void as against public morality. — Williams, J. [Affirmed [1891] 1 Q. B. 168.] 6, Master and Servant — ^Managing Director — Profit made by Agent— Commission — Salary. Boston Deep Sea Fishing and Ice Company v. Ansell, 39 Ch. D. 357. If a servant, or a managing director, or any person who is authorized to act, and is acting, for another in the matter of any contract, receives, as regards the contract, any sum, whether by way of percentage or otherwise, from the person with whom he is dealing on behalf of his principal, he is committing a breach of duty. It is not an honest act, and, in my opinion, it is a sufficient act to shew that he cannot be trusted to perform the duties which he has undertaken as servant or agent. He puts himself in such a position that he has a temptation not faithfully to perform his duty to his employer. He has a temptation, especially where he is getting a percentage on expenditure, not to cut down the Digitized by Microsoft® BY ENGLISH JUDGES. 161 PBIHCIPAL AND AGENT—