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Appeal by the plaintiff from an order of Day, J., at chambers. The l

action was to recover damages for injury to the plaintiff's horse. The statement of claim alleged that the plaintiff delivered to the defendants his horse to be agisted, in consideration of a payment of one shilling a day, and the dfifrlldfllltfl promised to keep, agist, and take care of the horse; and that in breach of the contract the defendants negligently allowed the horse to be kept in a field where there was n. barbed wire fence concealed by long grass, whereby the horse was injured. At the trial the jury found a verdict for the plaintiff for £30. Upon the taxation of costs the master was of opinion that the action was founded upon contract, and taxed the plaintifi’s costs upon the county court scale. The learned judge aflirmed this decision.

Tr-rs Couar (A. L. Snrrrr, Rrosr, and COLLINS, L.JJ.), allowed the appeal.

A. L. SMITH, L.J., said that if the action was one in which it was necessary to prove and rely upon a contract, then the action was founded on contract within section 116 of the County Courts Act, 1888. If not, it was founded on tort. The pleadings in the action were immaterial upon this point: Taylor v. lfanchsslar, Shnjield, and Linaolnshirs Railway Co. (43 ‘V. R. 120; 1895, 1 Q. B. 134); Kelly v. llfetropolitan Railway Co. (43 W. R. -197; 1895, 1 Q. B. 944; and, in his o inion, it was immaterial how the plaintiff opened his case at the trial and) how the judge directed the jury. The question was, could this cause of action be maintained without proof of a contract? In his opinion it could. There was a bailment of the horse upon which the uty arose not to be negligent towards the animal. This was, therefore, an action of tort.

Rruav, L.J., concurred., L.J., concurred.—A bailment must arise out of some contractual relationship, if it could be so called, between the parties, some meeting of the minds; but that was not such a contract as determined whether the action was an action founded upon contract or upon tort within the meaning of this section. The contract came in after that. Having got the common law obligations arising out of the bailment, then if the plaintiff, in order to support his cause of action, must shew that the defendant ought to have done something which was not embraced in the common law obligation, and must rely u on some contract, it was an action founded on contract. If the plaintié) was not obliged to rely upon anything more than the common law obligation, it was an action founded on tort. That seemed to him to explain all the cases on the subject.—Covr<ssr., T. W. Chilly; A. Lyttallon. Soucrroas, A. Slater; Kirrg §' Burrell.

[Reported by W. F. Bsrrnr , Barrister-at-Law.]

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Appeal from a decision of Stirling, J . (reported 45 W. R. 456; 1897, 1 Ch. 888). By marriage settlement certain funds were settled, in the events which happened, upon trust for the wife for life, and after her decease upon the children of the marriage as she should by deed or will appoint. In exercise of the power of appointment she appointed (inter alia) “ that so much of the stock, funds, and securities now held by the present trustees of the said indenture of settlement upon and subject to the trusts thereof as shall be sufficient to raise the net sum of £2,000 shall . . . henceforth belong and be vested in the said Edward George Saunders, and be held in trust for him, the said Edward George Saunders, his executors, administrators, and assigns." The question raised on summons before Stirling, J , was whether the appointee was entitled to receive the sum appointed to him free from succession duty. Stirling, J ., following Banks v. Bmitliwaite (32 L. J . Ch. 35), held that the appointee took subject to payment of succession duty by him. The plaintiff, the appointee, appealed.

Tris Couar (Lruntsr, M.R , and Curr-n’ and Vauorum \, L.JJ.) allowed the appeal.

Lrsnrsr, M.R , said that, with reference to Stirling, J.’s, judgment, it appeared lo his lordship that what was given to E. G. Saunders was a net sum of £2,000 stock; and he could not follow the distinction between a net sum of stock and the stock itself ; the true intent was the appointment ofa net sum of £2,000 in a particular form; if that were so, how could it be maintained that any expenses were to come out of it? Reading it in that way apart from all authority, his lordship could not read it as a gift of a sum of £2,000 stock gross. He was not going through all the authorities, but with regard to the case pressed on Stirling, J . (Banks v. Braitllwaite, ubi supra), his lordship would not have construed the document in the same way as Kindersley, V.C., did. He should have read it as a clear yearly income of £150 to the nephew, but he could see a difference between that case and this. This was a simple appointment to E. G. Saunders, and on the true construction of this document Banks v. Braithwaite (ulai supra) did not apply. Of courso there wssa difference between legacies and appointments of funds. The case of legacies was easier, but the reasoning with regard to legacies did not apply hero. The pppsal must be allowed, and the costs must come out of the last appointed

an .


Carrrv, L.J., agreed. In the case of a pecuniary legacy given to one person only one sum of money was given so that tho legatee got a clear sum: Haynes v. Haynes (1 W. R. 20-1, 3 De G. M. & G. 590). The legatee bore none of the expenses of raising the legacy. There must be words, however, in order to free him from duty to shew that intention, and the word pointed out was “clear”; his lordship could make no distinction between a net sum and a clear sum. In ascertaining what portion was appointed, you must clear that part of all charges; it would be so much stock as would raise a clear sum of £2,000 ; that was arrived at by excluding all the trustees’ expenses and the duty. The case was not like Banks v Brailhwaile (ulli supra), where his lordship would have arrived at a. difierent conclusion. This was a question of construction, and the case was not governed by Banks v. Braitliwaiie (ubi mpra) ; here the appointed portion of the trust funds was clear of all charges.

Vsuorrsn \Vrr.r.rAus, L J .—I cannot say that I am by any means as clear as the other members of the court are as to the true construction of these words, having regard to the fact that it is merely a question of construction of particular words in a particular document ; but I am not prepared to differ from them. The question to my mind to be answered in the construction is this : Ought the word "net" to be annexed to the gift or to, what is precisely the same thing, the measure of the gift, or ought the word to be annexed not to that but to the raising of the sum ? Is the word “ net " to be treated as qualified by the quantity of the stock with which the trustees were to deal, or was it to be annexed to the gift to Edward George Saunders? Various authorities have been cited, but it seems to me to be a dangerous thing to lay down any general rule as to the meaning of words of this sort ; you must look at the whole document, and ascertain tho meaning of the words when the whole document is taken into consideration. Very often you get words which make it clear that the word “net ” qualifies the quantum of the gift, as where you have “ raise and pay ” in immediate collocation. If the will says you are to raise and pay a clear sum of so much, I think the word “ clear" applies not only to the sum raised, but also to the sum to be handed over. In the present case there are no such words. Tho word "net" seems limited in its application to the sum to be raised, to the amount of consols to be handed over, and not to the amount to be transferred. Having said this because I have a very strong feeling as to the danger of deciding the meaning of particular words in a particular document by laying down a universal rule of universal application, so far as my judgment in concerned I concur in the opinion of the court. These documents are generally drawn by professional men, but occasionally by laymen; it would be a dangerous thing to include the construction of a particular document as covered by decisions arrived at on similar words in other documents. Appeal allowed.—Cor:xssr., Uoum-Hardy, Q.C., and Hedd; Godefroi; Swinfen Eadg, Q,.C., and Pelerson ; W. A. Peck. Soucrrons, Valpy, Chaplin, Q Peck-ham ; W itkam, Roskell, Munster, ~§~ Weld ; Hasiies.

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This was an appeal from the judgment of the Divisional Court (Day and Lawrance, JJ.) reversing a judgment of the Common Serjeant, sitting at the Mayor's Court, London. The plaintiff was the owner of the ship Thea, and the defendants were the indorsees of a bill of lading for timber shipped upon the vessel at a port in Sweden for London. The ship was under charter, and by the charter-party the ship was to load a full and complete cargo of battens, including a deck cargo “at merchants’ risk, . . . and . . . proceed to London . . . and deliver the same." The timber, which was carried on deck, was shipped under bills of lading, which stated that the goods were “ shipped in good order and well conditioned, . . . and to be delivered in like good order and condition. . . . Freight and all other conditions as per charter-party." The action was brought in the Mayor's Court for freight. The defendants counter-claimed for damage to the goods. The defendants were also the indorsees of the other bil s of lading for the cargo carried. The jury found that the goods were damaged while on the voyage to the extent of £10, that the damage was not caused by the negligence of the shipowner or his servants, that the ship was seaworthy when she sailed, and that the damage was not caused by unseaworthiness. Thequestion of law, which arose upon the counter-claim, no question arising upon the claim, was whether the condition in the charter-party that the timber should be “ at merchants’ risk " was incorporated in the bills of lading. The Common Serjeant held that it was, and gave judgment for the plaintiff upon the claim and counter-claim. The Divisional Court held that the words “ at merchants’ risk” were not incorporated in the charter-party, and entered judgment for the defendants upon the counter-claim for £10. The plaintiff, by leave appealed. Judgment was reserved.

Nov. 22.—Tus Couur (A. L. Surrrr and COLLINS, L.J'J., RIGHY, L.J., dissenting) dismissed the appeal.

A. L. Sim-rr, L.J., read a judgment in the course of which he raid that they were called upon to consider the, at one time, much-debated question as to how much of a charter-party is incorporated into a bill of lading which contained the words “ he or they paying freight and all other conditions as per charter-party." The question in this case was whether the form of the charter-party as to the deck cargo being carried “at merchants’ risk ” was incorporated into the bill of lading by the words " freight and all other conditions as per charter-party,” for, if not, the plaintiff was liable under the counter-claim to the defendants. There was a body of authority which had established conclusively that the words in a bill of lading, “paying! freight for the goods and all other conditions as per charter-party,” ‘d not incorporate all the conditions of the charter- party


but only those conditions “ which would iipply to the person who has taken the bill of lading and is taking de very of the cargo, such, for instance, as payment for demurruge, the payment of freight, the manner of paying, and so on." Those were the words of Lord Blackburn in the House of Lords in Taylor v. Fem» (unreported, but cited in [1891] 1 Q. B., at_p. 29o)._ It would be a waste of time to go through all the cases upon this question, especially as this was done by Kay, L.J., in this Court in 1890 in Scrraino V. Campbell, (I891, 1 Q B. ?83), and he would Only take three _ca_ses to show whaahad been held to be incorporated in a bill of lading contammg the words paying freight and all other_conditions as per charter-party,” and what was the rule of construction to be applied thereto. Thirty-three years ago, in _the case of Russell v. 1\’ismrmn(l7 C. B. N. S. 163), Willes, J.,1gave the udgment of the Court of Common Pleas upon this point as fo ows: “{Ve now proceed to dispose of the second poiut—that is, whether the exception contained in the bill of lading is expanded by the exception in th_e_charter-party. That depends ulpon whether the w0_rds ‘ and other conditions as per charter-party ’ inc ude all the stipulatio_ns_and conditions contained in th_at instrument, or whether they_ are not limited to conditions qmsdem yfnerls with those previously mentioned—viz., payment of freight, conditions to be performed by the receiver of the nioods. It is a mere question of language and construction, and we thi it is enough to say that the latter is the construction we put upon those words." That case had never been overruled, gxéhpn the contriiry, this craurtfin) Seiiiainfi v. Campball pointed out that it een ex ress yap rove o t e ouse of Lords. In Serraino v. Cam, bell Lolzd Esher,p M.R , laidydown the rule of construction thus: “Aftcr full consideration, I think the words ought to be construed as meaning all the conditions of the charter-party which would have to be performed by the receiver_of the goods." Lopes and Kay, L JJ., arrived at the same result. Again, in Mam-healer Trmt v. Fumess, Wit/iy, §- Co. (1895, 2 Q. B. 282, 539), Mathew, J., treated this rulc of construction as tbhien W6ll.fkl1:0V£1fil1d sgttlfid ; landén thef sigma qase on appeal the present astero t e 0 ssai t att ee ecto t ereerencewastoincor crate so much of the charter-party as related to the payment of freighxt and other conditions to be performed on the delivery of the cargo, but there was no authority whatever for incorporating more than that. The rule of constriécgionhwaq thfigfqge tsetfled Ey qpnglusive authority.d Ill; WB;fllil0z insiste ytepaini awen e yiscatainsine tis ' 0 lading containing the words “freight and all gther cgndilions as per charter-party,” the word "paying" being left_out, he, by so doing, incorggratcd into the bill of_ ladmg conditions which otherwise would not have en incorporated. His lordship could not agree with the contention that the word “ freight” did not mean “ paying freight ” in this mercantile document. The words meant the same thing, If they were to accede to the plaintiffs contention, they would, in his opinion, be unsettling that which had long been settled, and upon the faith of which business had been transacted for years. In his opinion, the rule of construction above mentioned applied to all bills of lading which sought to incorporate parts of a chapter-partytby, the xvqrds gtpayéngufregght snccll all other congitions as perc arter-par y, or reig an a ot er con itionsas ..rc arterpgrty," unless there was something therein clearly shewing that the w_ellown rule was to_ be excluded: To point out that the contract of carriage contained in the bill of ladmg in the present case was absolute and without exceptions did not avail the plaintiff, for it did not, in his opinion, shew that the rule was to be excluded, it being a rule as applicable to a bill of laciing contagiglg no exgeptionz as tohorge C01il1l‘8lDl1lg pxciptiqlns. He did no ro ose ‘scusst e ues ionw et ert e term n t e c arter- art “ ingludJing_ a deck cargo d1t_merchants’ risk ” was or was not inconsgtenl with the bill of lading, which was silent as to a deck cargo, and only covered tail ciggo phiclhcwazt to beficagied gtl dB.I11pt':;;"l1t82B; riiik. I_n tips opimon e ivis ona ou were in 0 in a c c ause in e charter-party was not incorporated ingto the bill of lzading; and the appeal must be dismissed with costs.

RIGBY, L.J., read a judgment in which he said that he was unable to concur in the conclusion that the counter-claim of the defendants should succeed. The question was one of construction only, and the issues were two : (1) Whether the words “ freight and all other conditions as per charter-party ” in the bill of lading were to be construed to extend only to conditions to be performed by the holder of the bill of lading, in which case none of the terms of the charter-party relieving the shl owner from responsibility would be introduced; (2) whether the clause relied upon as a defence to the counter-claim ought not to be treated as incorporated by the general words of reference on the ground of its being repugnant to the other terms of the bill of lading. As to the first issue, the argument depended entirely upon the decisions, of which Serraino v. Campbell was a conspicuous example. He had not the slightest intention of laying down anything inconsistent with that class of case. The real question was what those cases in fact decided, and it was as important not to extend them so as to cover a case not really included as to preserve their authority with referencc to cases really covered by them. None of those cases went beyond what was laid down by Willes, J ., in Ruawll v. Niemrmn. In all of them the words were “ paying freight and all other conditions as per charter-party,” or their equivalent. \Villes, J ., held that they were limited to conditions to be performed by the receiver of the goods. That learned judge and the Court of Appeal in Serraino v. Campbell treated the matter purely as a matter of construction of the very words used, and had no intention of laying down any general rule as to the meaning of the words “ all other conditions ” independently of the introductory words “ paying freight." The Court of Ap eal in Gardener v. Trechmann (15 Q. B. D. 154) seemed to him to have geld that the words “ all other conditions as per chartegparty," when not controlled by the context, were sufficient to introduce the terms of the charter-party not repugnant to the contract contained in the bill of lading. What was the effect of “freight” pre


ceding the grehiieral words? Was it equivalent to the words “paying freight"? e word “performing” could not be brought in without first getting in “ paying. “ Freight as per charter-party ” meant freight as fixed by the charter-party, and nothing else. The phrase did not couvey the idea of payment any more than if the rate followed the word in the bill of lading itself without having to be imported from the charterparty. In each case the obligation to pay would be involved as nu implication of law. But on the question of construction it was necessary to distinguish clearly between the interpretation of the language used and the consequences arising in law from using it. In his opimon the author:ties relied upon were not applicable, and the reference could not be cut down to mean only conditions to be performed by the holder of the bill of lading. As to the second question—namely, whether the term " that a deck cargo was to be carried at merchants’ rislr" was to_ be rcjected as repugnant to the bill of lidmg—the bill of ladiug was a contract of carriage, and in so far as the charter-party might contiin terms not applicable to such a contract they wou d_not be treated as incorporated. But here the term proposed to be introduced had direct reference to the carriage of the goods. In nearly_e_very bill_ of ladiug and in nearly every charter-party there were_ provisions cutting down and limiting the absolute obligation of the shipowner to deliver. Was it more reasonable to suppose that the partiei intended the contract to be interpreted literally, and so to incorporate the terms of the charterparty, or not? In the first case the shipowner would be getting in freight a consideration commensurate with a limited obligation. In the _second he would be entering into an exceptional contract. In his opmion the literal interpretation of the contract was the most reasonable one, and therefore the correct one. _ _

COLLINS, L.J., read a judgment concurring with that delivered by Lord Justice A. L. Smith.

Appeal dismissed.-Couussi., Lawson Walton, Q.C., and E. Bray; J. A. Hamillon. SOLICITORS, Harper if Biidcock; W. A. Cramp.

[Reported by P. O. Rosissoir, Barrister-at-Law.]

High Court--Chancery Division.


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In November, 1882, the liintiff was a director of] the company, which required money to pay 0% debentures then falling due. The plaintiff found £300 of the money required, and to ik as secirity a prom’ssory note of the company for £300 at 5 per cent. interest, and an undertaking by the company at any time to issue to him debentures to a like amount of a series of debentures then being issued and forming a second charge up-on the property of the company. In 1884 the plaintiff lent a further sum upon similar terms. In 1895 judgment in the action in vghichlthelpgifiintgff claimed as holder of first debentures was rouounce . n '5 t e plaintiff claimed to be allowed to exercise hislfiption to take dtfbilniiiires instead of his romissory notes, and to be aid pari p(l85ll with t e o ers of second debelntures. Until the judgmellt interest on the promissory notes was paid at the rate of 5 per cent., the interest payable upon the debentures was 4% per cent. The claim was rejected by the mister, and now the appeal came on with the further consideration of the action.

Nonrii, J., said that Re Queensland Land and Coal Co. (I891, 3 Ch. 181) decided the question. The option to take a debenture could not be taken away. The right to a second debenture was not waived because it was not mentioned in the statement of claim. On the 7th of October, 1896, the plaintiff made aii aflldavit claiming to exercise his option to take second debentures, and in his lordship‘s opinion he was entitled so to do, as nothing had happened to deprive him of his right, although till the judgment he took interest at the higher rate payable on the promissory note. The costs must be added to the 880lll'll2_V.—-COUNSEL, Swinfen Eady, Q (J., and Ashton Urosi ; D7. Pollock," Hume l7illianis. Sociolrons, Evcrilt Q Hodgkimon ; Tamplin, ayler, §- Joseph.

[Reported by G. B. Haniiirox, Barrister-at-Law.]

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This was a summons in an action by the South African Republic to protect a fund in which the republic claimed an interest. The fund stood in the names of two trustees, one nominated by the plaintiffs and one by the defendants. The plaintiffs’ nominee died, and they brought this action for the appointment of a new trustee and the preservation of the fund. The defendants pleaded that it was inequitable that tho fund should be placed under the control of the plaintiffs, and counter-claimed for sums due to them by the plaintiffs for breaches of agreement. A part of their counter-claim asking for damages for libel had already been struck out. It was said that a counter-claim could be brought against a foreign state suing in this country.

NORTH, J .—'I'he application to strike out the counter-claim must succeed. The plaintiffs are a foreign republic, in the position of aforeigii sovereign. One of two trustees of a fund died, as to the application of which the ‘plaintiffs and defendants differ, leaving the trustee nominated by the dc endants surviving, and he proposed to deal with it in a way the defendants think right, but which the plaintiffs think wrong. Tue plaintiffs ask for the appointment of a new trustee and payment out of the fund, so that matters may go on as before the death of the trustee

_nominatcd by the plaintiffs. The funds have been paid into court. The


defendants say that the plaintiffs have acted wrongly in many respects, and after forty-two paragraphs of defence proceed to counter-claim for payment of three sums of £60,000, £1,800, and £147,000, and they also ask that the plaintiffs may be rest-rained from taking proceedings in their own courts to get the concessions granted to the defendants declared void, or in the alternative £500,000 damages. The application as to damages for libel has been struck out, but on that application I was not asked to strike out anything else. Duke of Brunswick v. Kiny of Hanover (6 Beav. 1) and Slrousberg v. Costa Rica Republic (29 W. R. 125) state the law onthe subject. It is conceded that the part of the counter-claim seeking to restrain the plaintiffs from applying to the courts of their own country cannot succeed. The claim for the three sums of money is not a claim in respect of the sum in court, but is a claim altogether outside this action. If the plaintiffs could be sued, it would be the proper subject-matter of a separate action and not of a counter-claim. I give no costs because this counter-claim might have been struck out at the same time as the counter-claim for libel.—-Coi:xsar., -S'u:in/"en Eady, Q.C., and Waygstt; Vemon Smith, Q,.C., and Whimwy. Souclrous, IIaru'oo1l Q Sl0}2h¢fll071 ; Clarke, Ifawlins, §- 00.

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This was an action for the determination of the question whether the plaintiff was entitled to be indemnified by her husband out of his property in respect of moneys raised out of her life estate in certain settled property and applied in payment of her husband's debts. The plaintiff was, under the settlement, restrained from anticipation, but on the 28th of June, 1882, and the 11th of August, 1887, Chitty, J., had made two unconditional orders under section 39 of the Conveyancing and Law of Property Act, 1881, relieving the plaintifi from the restraint in order to enable her to raise money for payment of the defendant's debts. During the course of the arguments the following cases were cited: Hudson v. Oarmicluul (1 Kay 613), Aguilar v. Aguilar (5 Mad. 414), Clinton v. Hooper (l Vesey, jun. 1724), Pawlet v. Delaval (2 Ves. sen. 662), Hilncs v. Burk (2 Ves. jun. 488), and Huntingdon v. Iluntingdm (2 Bro. P. C. 1), White and Tudor’s L. C.,6th ed., 1147.

Knxswrcu, J ., dismissed the action, basing his judgment on the broad ground that where the wife's interest had been made available for raising money for payment of her husband’s debts by means of relief from the restraint on anticipation under the sanction of the court, it was inconceivable that she intended, or that the court intended, that she should have a remedy over against him not reserved by the order giving such sanction, or that a doctrine flowing from the relations of husband and wife and called into operation by her action independently of the court should be thus extended.-—Covr¢snr., Remhaw, Q.C., Carson, Q.C., and A. (EB. Terrell; Lawson Wullm, Q,.C., Warfington, Q,.O., and J. Hcmlerson. Somcrrous, Lemon Q Co. ,' Dawes §- Sons.

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By agreement in writing of the 2nd of March, 1896, the plaintiff Todd “agreed to let to H. T. Muse" (one of the defendant firm), “ photographer, the studio, work-room, and drawing-room on the top floor of my new building and the reception-room on the second floor thereof” for one year at £35. The defendants alle ed that during the negotiations Todd represented that the defendants siould have the exclusive right to atlix sign-boards and advertize their business on the outside of the walls of the rooms let. Subsequently the plaintiff company was formed, and the rest of the house was demised by Todd to them, with an agreement that the company might put up in front of the house such signs and advertisements as they thought fit, and in particular that the words “ Silver Grill" should occupy a position over the cornice above the second floor. The plaintiff company, which carried on a restaurant in the house, put up a large sign with the words “ Eilver Grill ” upon it in letters between two and three feet in height in the position mentioned. The sign was upon the outer walls of the rooms on the top floor occupied by the defendants. The defendants objected to this si n on the ground that it prevented them putting up their own signs, and also because it was a representation making their customers and the public believe that the business of the plaintiff company, and not that of the defendants, was carried on in the rooms of the defendants, and at the trial they gave evidence in support of these allegations. The defendants requested the plaintiff company to remove the said sign, and upon their refusing they took it down in the night and placed their own signs there instead. Thereupon the plaintiffs brought this action for an injunction against the defendants interfering with the signs of the plaintiff company.

Brass, J .—The premises constitute a little dwelling by itself. It was argued that the letting did not include the outer walls, but I think that it did include them, so far as they were solely appropriate to the use of the rooms let. The present use by the dc fcndants of the walls is a reasonable one, and the signboard removed was inconsistent with such use. His lordship also found that there had been a representation at the time of the contract that the defendants should have all reasonable facilities for advertising, and that the plaintiff company had not given them these facilities. Judgment for the defendants.—Corxss1., Eu, Q.C., and

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This was an application by Mr. Tomlin under section 35 of the Companies Act, 1862, that his name might be struck off the list of contributories in the winding up. Tomlin had applied for shares in the company in the following form : “ Form of application—Thomas Edward Brinsmead & Sons (Limited). To the directors of Thomas Edward Brinsmead 8: Bone (Limited), 94, Cannon-street, London, E C. Gentlemen, [Having paid to your bankers the sum of £—, being a deposit of 10s. per share payable on application, for — shares of £5 each in] Thomas Brinsmead & Sons (Limited), I request you to allot me /ivo Iumdred pounds in [that number of one hundred shares, and I agree to accept the same, or any smaller number that may be allotted to me, upon the terms and conditions of the prospectus and memorandum and articles of association of the company. I request you to place my name on the register of members in respect of the shares so allotted to me, and I undertake to pay the further instalments upon such allotted shares as and when the same become due, provided zlu lolal numbrr of shares are applied for, and 1 undertake lo pay in full on ullalmenl. Ordinary signature, ; name (in full), George William Tomlin ; address, Dudley-slreet, Leiyhton Buzzard," description, no occupation ,' date 21th July. 1896. If you desire to pay in full on allotment sign the following: I desire to pay in full on allotment. This form is to be filled up, cut out-, and forwarded, together with cheque or cash for the amount payable on application to the bankers, &c., or to the secretary at the emcee of the company, 94, Cannon-street, London, E.C." The form was a printed one, but was altered by Tomlin by striking out the words enclosed in square brackets above and inserting the words in italics. He did not pay any money with the gpplication or at any subsequent time. The company shortly afterwa s went to allotment, and Tomlin was allotted the shares he had applied for although the total number of shares were not applied for; but no notice of such allotment was sent to him. Finding out that something was wrong with the company, he, on the 17th of August, 1896, applied, under section 35 of the Companies Act, 1862, to have his name removed from the register on the ground of misrepresentation in the prospectus. The application stood over by consent, and before it again came on for hearing a petition for winding up the com

any was presented. Tomlin gave the usual contributorief notice that he would oppose the petition and did so oppose when it was heard. A winding-up order having been made, Tomlin together with others a peeled against it, but the Court of Appeal dismissed their application. 'I€>mlin now applied again to have his name struck off the l t of contributories.

Warour, J., held that before the hearing of the winding-up petition the applicant was not in default, and that his appearing as a contributory at that hearing did not make him a shareholder if he was not one before or alter his position, and that he had done nothing to estop himself from denying that he was a shareholder, and that he was entitled to have his name taken off the list of contributories.—CousssL, Norman Craig; Hon. Frank Russell. Somcrrons, Baal! Q 00.; Day, Russell, §- U0.

[Reported by C. W. Mann, Barrister-at-Law.)

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Further consideration of an action tried before Wright, J . and a jury at the last Durham Summer Assizes. The action was brought to recover damages for injury to the plaintiff's houses alleged to have been ciused by the negligence and breach of duty on the part of the defendants in not properly maintaining and repairing a sewer which was under their control. The sewer was laid in 1866, and the houses in question were built about 1872. The pipes of the sewer were the same as those in common use at the time, but without proper flanges to prevent the escape of sewage. In 1879 the sewer was taken over by the def: ndants. Before 1892 the sewer was repaired ; and again in 1892 part of it became defective owtng to subsidence, and had to be repaired. The defendants’ surveyor ordered the pipes to be taken up for a distance often yards on each side. In 1895 the plaintiff's houses, which were lower down the strett than the place where the repairs were done, were flooded with sewage; causing the damage complained of. It was contended for the plaintiff that the defendants, having knowledge of the defective condition of the joints of the pipes, were negligent in allowing the pipes to remain in the ground. The jury the learned judge lo t the following questions to the jury: (1) \Vere the foundations of the plaintiff's houses insufficient? Answer.—No. (2) Was the defendants’ sewer badly constructed originally—that is, before their time, and, if so, in what respect? Answer.-It was badly constructed in consequence of defective joints.


(3) \Vas the defendants’ sewer improperly and negligently maintained or repaired by them, and, if so, in what respect? Answer.—The sewer was improperly and negligently maintained, because the defendants did not examine the drain the whole length of the street on the second occasion upon which they opened it out. (4) \Vas the damage caused entirely by the bad situation or bad foundation or bad construction of the houses? Answer.—No; it was caused by the water from the sewer. On these findings the defendants moved for judgment, on the ground that the damage was caused by mere nonfeasance for which an action would not lie, the proper remedy being a complaint to the Local Government Board under section 299 of the Public Health Act, 1875: Atkimon v. Newcastle and Galesbaad Waterworks Co. (2 Ex. D. 441), Leek Improvement Commissioners v. Justices of Slaford (20 Q. B. D. 794), Cowley 1. Nrwrnarket Local Board (1892, A. C. 345), and Robinson v. Workingtm Corporation (45 W. R. 453 ; 1897, 1 Q. B. 619) were cited.

Wruour, J ., said that he thought the findings of the jury were contrary to the evidence, but he could not say that they were perverse, and he must treat them as if they were correct. Assuming them to be so, there was no ground for liability except misfeasance in the sense that there was something improper or negligent in the way in which the works of maintenance or repair were done. Before 1892 there were partial and local repairs done to the sewer. In 1892 another local and partial collapse occurred. That was made good, not for the whole length, but partially. He should say that all was done that ought to have been done. The jury found otherwise; they thought it was reasonable and proper to open up the whole of the length of the sewer, and that it was negligent to do part of the work and not the whole. Upon the findings he could not do otherwise than enter judgment for the plaintiff. Stay of execution was granted pending anappeal.—Cov:\'ss1., Timial Atkimon, Q.C., and Simey ; Sfrac/mn, Q.C., and H. F. llfaniaty. Somcrroas, Hie/tens, Smith, § Capel-Cure, for Simcy Q Il§fi',Suuderland; Field, Roscoe, J Co.

[Reported by T. R. C. DILL, Barrister-at-Law.)

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Appeal from an order of Kekewich, J . The plaintiff's solicitor took out a summons in the action asking for a declaration that he was entitled to a charge on certain funds, which had been recovered in the action and paid into court, for the balance of his unpaid costs, charges, and expenses. Section 28 of the Solicitors Act, 1860, is as follows : “In every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge . . . to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made, such atto-ney or solicitor shall have a charge upon . . . the property . . . which shall have been recovered or preserved through the instrumentality of any such attorney or solicitor for the taxed costs, charges, and expenses of or in reference to such suit, mattnr, or proceeding; and it shall be lawful for such court or judge to make such order or orders for taxation of, and for raising and payment of, such costs, char-fies, and expenses out of the said property as to such court or judge sha appear just and proper . . .” Kekewich, J . , dismissed the summons, and refused to make any order. The solicitor appealed.

Tun Couar (Lmnnsr, M.R., and C1-rrrrr and Vsuonsu Wrnnraus, L JJ.) allowed the haappeal.

Lrsnnnr, B., said that their lordship: had been considering the question of costs , and although there was nothing in the Act about the costs of an appeal, yet, on principle, they ought to be included in the order. The order was, therefore, that the appellant was entitled to a charge on the fund in court for his costs, charges, and expenses of recovering and preserving the property, it being referred to the taxing-master to settle the amount, with liberty to rcview his former taxation; such costs to include, as between solicitor and client, costs in the court below and costs of the appeal. Appeal allowed.—Cov:xssr., Cozmo-Hardy, Q,.C., Warrington, Q,.C., and Ingpm,‘ Rmsbaw, Q,.C., and J. ll. Stone ; Badcock; H. L. Manby ; Herbert Jacob. Somcrrons, F. W. Bertie; Stones, rlforria, Q Stone; J . Halal! ; If. Norman ; Lickoriab 4- Co.

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This was an action to obtain a declaration that the trustees of the wilt of Hester Stokes, deceased, were, according to the true construction of two declarations of trust dated respectively the lst of January, 1877, and the 8th of October, 1886, entitled with the defendant \Vebb to be paid a sum of £3,000 and interest out of the mortgage debt and interest referred to in the said declarations of trust in priority to all claims of the defendants, the trustees of N cw, Prance, 8: Garrard, bankrupts, and of Henry Smith, dccrased, in respect of the residue of the said mortgage debt and interest, and to have the trusts declared by the said declarations of trust carried into execution, and the trust estate subject thereto administered by the court. Certain questions were raised as to the liability of solicitors to trustees who had failed in their duty to their clients in not advising

them that an investment made by them was a breach of trust. The facts i


were as follow : In 1864 two freehold farms were mortgaged to J . Bailey to secure £6,000 and interest. On the 30th of December, 1876, this mortgage was transferred to the defendants Prance and Webb for £6,000, stated in the indenture of transfer to have been paid by them out of moneys belonging to them on a joint account. As a matter of fact the £6,000 belonged as to £3,000 to the firm of New, Prance, 6: Garrard, for whom Prance and Webb were trustees, and as to the other £3,000 to the trustees of Hester Stokes. New, Prance, & Garrard acted on the occasion of the transfer as solicitors for the Stokes trustees. On the 1st of January, 1877, Prance and \Vebb executed a memorandum to the effect that of the £6,000 £3,000 belonged to the Stokes trustees and the remaining £3,000, the residue of the principal sum of £6,000, belonged to New, Prance, & Garrard. On the 2nd of January, 1877, another memorandum was executed whereby New, Prance, & Garrard, in consideration of the Stokes trustees accepting interest at 4 per cent. instead of 45» per cent. on their £3 000, guaranteed to them the repayment of their £3,000. In 1880 New, Prance, & Garrard transferred their £3,000 and interest at 4 per cent. to Messrs. Jewsbury and New and Mrs. E. Smith, the executors and trustees of the will of Henry Smith, and memoranda similar to those of the 1st and 2nd of January, 1877, were executed by them in favour of the Smith trustees. In 1886 the plaintifi Stokes and Garrard were appointed trustees of Hester Stokes’s will, and the mortgage property was vested in them and the defendant Webb. Prance was also appointed a trustee of Smith’s trust in place of Jewsbury. A memorandum of the 8th of October, 1886, almost identical with that of the 1st of January, 1877, was drawn up declaring that the £6,000 belonged as to £3,000 to Webb, Stokes, and Garrard, and as to £3,000 to the Smith trustees. The firm of New, Prance, 8.: Garrard again acted as solicitors for the trustees. On the 22nd of December, 1891, part of the £3,000 was paid to the Smith trustees. The said £3,000 was then made up of £1,630 advanced by the defendant Mrs. Valentine (formerly Smith) and of £1,370 advanced by New, Prance, & Garrard. By an indenture of this date the £3,000 was treated as if New, Prance, & Garrard were trustees thereof, and it was declared that Prance and Webb should stand possessed of the mortgage security for the benefit of the persons interested in the two moieties of £3,000 and £3,000 pnri pauu without any priority other than the priority granted by New, Prance, & Garrard in respect of the £1,630 over the remaining £1,370. On the 28th of November, 1893, New, the senior partner in the firm, died. On the 22nd of January, 1894, New, Prance, -S: Garrard were adjudicated bankrupts, and the defendant West was apipointed trustee in the bankruptcy. On the 24th of July, 1894, the plainti Whitfield was appointed a trustee of the will of Hester Stokes in the place of Garrard. The £6,000 was still owing on the mortgage security, which had not yet been realized, but was admitted by all parties to be insufficient to satisfy the debt. Brianne, J ., held that the memorandum of the 1st of January, 1877, could not be fairly read as giving priority to the £3,000, while the guarantee of the 2nd of January, 1877, was sim ly a personal contract by the firm as to which it might be right to prove i)n bankruptcy, but whic conferred no rights against the specific property in question. His lordship continued: As to the thlrd point, the argument is that a breach of trust on the part of New, Prance, & Garrard precluded them from taking any action to the prejudice of the trust estate. In my opinion the mortgage investment was a breach of trust I think that in omitting to advise their clients, the Stokes trustees, that it was so, New, Prance, & Garrard were guilty of a breach of trust towards them. For this, but for their bankruptcy, they might beanswerablc in damages, and proof may possibly be admissible for it in the bankruptcy. But under ordinary circumstances they are not responsible for a breach of trust: Bamn v. Addy (9 Ch. App. 251). It is said, however, that the law prevents them taking any benefit to the disadvantage of the Stokes trustees. Undoubtedly the law imposes considerable disabilities on solicitors in dealing with their clients: See Segrnos v. Kirwan (Beat. 157), Bulkley v. ll'ilford (2 Cl. & Fin. 102), Horan v. .l[acM'abon (17 L. R. Ir. 641), Cockburn v. Edwards (30 W. R. 446, 18 Ch. D. 449) ; Re Birt, Birt v. Burt (31 W. R. 334. 2'2 Ch. D. 604). Against those decisions there is not a word to be raid, but in each case the solicitor was claiming a benefit or advantage which the client never intended him to have. The argument in the present case seems to me to push those authorities much further than any previous decision. The transaction contemplated in 1876 was an advance of £6,000 in two sums of £3 000, one to be advanced by the Stokes trustees and the other by the solicitors, and they were to be secured on a footing of equality as to their respective advances. The instrument by which the transacti-'-n was carried into effect contained no unusual provisions to the disadvantage of the trustees, and nothing could be urged against the solicitors if their clients had not been trustees and been involved by the transaction in a breach of trust. Still, the only breach of duty on the part of the solicitors was that they permitted their clients to advance money on insufficient security. For that they are answerable in damages, but the clients are not entitled to any priority of payment out of the solicitors’ security.--Coo.\'ssr., IV00(fs, Q.C., and Eutwick ; Datmeg ,- W. C. Prance, Haatinys, Q.C , and Badcock; J. If. Brooke. Soucrroas, Blake §- Moss, for Xcvinson 5' Barlow, Great Malvern; M. H. Prance ; Crowdarr fjVizarrl ,' Burton, Yeatea, Q Hart, for Johnson, Barclay, 5- Royers, Birmingham. [Reported by J. I. Srxuuxo, Ban-ister-at-Law.)

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did not appear, but the master refused to order judgment to be entered because the sflildavit in support was made by the plaintiff's solicitors’ clerk, and he held that the clerk could not make it. The affidavit was in the ordinary form with the exception that the clerk deposed “ that he was in the employ of the plaintiff's solicitor and was duly authorized by the plaintifi to make the aflidavit."

On appeal to the judge in chambers (Day, J.) he held that the affidavit was regular and perfectly good, and ordered judgment to be entered for plaintiff.-Souc-|'rons, Aird, Hood, §~ 00.; S. G. Edridye.

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1 It would be a serious blow to the administration of justice in this country

if there should be any falling otf in the high conduct which had characterized those gentlemen in the past. Mr. Wheeler then delivered an interesting lecture on “ Contracts implied by Law.” At the conclusion of the lecture hearty votes of thanks were accorded to Lord Justice Vaughan Williams, to the lecturer, and to the Benchers of the Inn for the use of the room. Lord Justice \Villiams, in reply, said that the law of implied contracts was particularly interesting from the point of view that it was illustrative of the character of the nation. Such contracts had been forced on the law by the common sense of the people. It was really the wish of the merchants that theircommercial usages should be recognized which compelled the law to adopt the method of implying terms in cer

tain classes of contract. In foreign countries the attempt—a laudable attempt--was made to work under a hard and fast code. That system might have its advantages, but the system adopted in this country was characteristic of the nation, as shewing the strong desire and will of the people that the law should be adapted to their wants.

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The following candidates (whose names are in alphabetical order) were %uccessful at the Intermediate Examination, held on the 3rd of N ovem er, 1897 :

Addison, William

Adey, John Daniel
Ainsworth, Arthur Cheetham
Ashby, \Villiam Augustus
Austen, Charles Edward
Aviss, Samuel

Bacon, Walter Hugh

Bailey, William Henry
Baines, Alexander Talbot, B.A.
Baker, Alfred

Barnes, Robert Howarth
Bartlett, Howard John

Beet, Alfred Percy

Bennett, \Villiam Richard
Bentley, Frank
Bickerstatfe, Robert Gerrard
Bicknell, Ethrayne Adrimar, B.A.
Blaber, Arthur

Blake, Leonard Nicholson
Blunt, Leslie

Bourne, Alexander Harold
Bowen, Hugh Ince \Vebb
Bradwell, Herbert
Brandling, William Joseph
Brennand, William Arthur Bedforl
Brodie, Alexander

Brooks, William Thomas
Brown, Herbert

Brown, Herbert Croston
Brown, Sydney Herbert
Buchannan, George Herbert
Budd, William George
Bulcraig, Herbert Henry
Bullock, Albert Henry
Burley, Percy Clement
Burton, Wilfred

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Bush, Lester James

Butler, Edward Charles
Callard, Cuthbert Richard
Campbell, Alexander Boswell
Campbell, James

Candler, \Valter Howard
Carlyon, Herbert Sydney
Carr, Horace Fulton, B A.
Cartmell, Henry Studholme
Casson, John

Challinor, Leonard Arthur
Clark, Albert _

Clark, Archibald McCosh
Clewer, George John

Coales, James Henry

Coath, Howell Lang

Cohen, Charles Arthur
Collier, Oswald

Collis, Frank

Cook, Sidney Herbert Spencer
Coore, Alban, B.A.
Cornish-Bowden, Peter Churchill
Cowan, Thomas

Cox, William Henry, B.A.
Craven, James Chadwick
Crawley, George Richard Eric
Dand, Robert

Davies, David John

Davies, William Thomas
Dawson, Ernest Arthur
Dennis, Clement Charles

De Orellana, Cecil


Dodds, Thomas

Dowker, Frederick Henry
Drinkwater, George William
Dyer, Watson

Eddrup, Edward Charles Paroissien,


Edwards, Percy John
Everett, William John
Ewing, James Archibald
Firth, Henry

Fitton, Walter Stanley
Flint, Abraham Reginald
Forward, William Graham
Fowell, Arthur Duncan Andrew
Fraser, Laurence

Freeman, David

Freeman, John Arthur
Garner, James Brooke
Gledhill, John Joseph

Good, Jonas Albert Thomas
Grififiths, Thomas William
Grimwood, Francis George
Grove, Edward Dunsterville
Hadaway, Charles Stanley
Hadrill, Arthur William
Hardwick, Arthur

Harker, Thomas Rowand
Harradine, Robert

Harrison, Frederick Herman
Harrison, Henry James
Harrison, Percy Alexander
Harrison, William

Hart, George Ernest

Hazell, Ernest Hopkins
Helm, Edward

Hewitt, Edwin Williamson
Hickes, George, B.A.
Hiscock, Charles Froud
Hodder, Harley Rayner
Hodge, Reginald

Hodgson, Frederic Charles
Holland, William

Holloway, Ernest James
Holmes. Harry James Carleton
Horne, Benjamin Worthy
Hulbert, Charles Kenelm
Hunter, Trevor Havard
Hutchison, Stanley

Jacks, Philip

Jackson, Alfred Horswill
Jackson, Frederick William
Jackson, Hugh \Villan
Johnson, John Richard
Jones, Merton Addlestone
Jones, Rhys Thomas

Jones, Sydney

Jones, William Caer
Kearsley, Robert Henry
Knowles, George

Lamaison, Leonard William Henry
Lamb, Bruce

Landau, Isaac

Laws, Edward Lucien

Lea, Ernett Walter

Lester, Horace Lenton
Lewthwaite, Charles

Lloyd, Harold Montague
Lucas, Allan

McConnan, Arthur Ellis
McGowan, James, B A.
McMillin, William John
Manby, Vyvyan Benson, B.A.
Marsh, Dudley Palk
Marshall, John Stead Stanley
Massey, Hugh

Menzies, Louis Edward
Menzies, William Henry Wood,
Middlemas, Robert

Mignon. De la More, B.A.
Mileham, Edgar Charles
Milns, Harry

Modlin, Henry Frederick Jonathan
Mogford, Richard Hambrook
Morgan, Matthew Wayne

Morison, Lennox James, B.A.
Morris, William Pilgrim
Morton, William Henry
Nash, Herbert \Varren
Newman, Charles Arnold, B.A.
Nisbet, Alfred

Ogilvie, Alan Freeman Walker, B.A.
Osborne, Edward Charles Harold
Owen, John Arthur George
Parish, Charles Ernest

Parker, George Watson Trevor, B.A.
Parkes, Harry Stanley, B.A.
Parkin, Leonard Maurice, B.A.
Parry, Henry Owen

Parsons, John Robert

Parsons, \Villiam Lansbury
Pascall, Charles Montague
Payne, Horace

Payne, Robert Sidney, B.A.
Peacock, Percy James

Penoyre, Ralph Penoyre Baker


Perkins, Harold \Vootton
Perkins, James Wickstead
Pickles, John \Villiam

Piercy, George

Platts, William Henry John
Purkis, Charles Sydney

Purkis, Harry \Vakeham
Randall, Henry John
Reay-Nadin, Robert Armstrong
Reed, John James

Ridley, Thomas Matthew

Ritchie, Robert

Romney, Francis William, B.A.
Roney, Ernest

Rooks, Cecil Bradley

Seaton, George Stuart

Sells, Harold

Sharpley, Edward Burgess
Sheldon, Ernest Alfred

Sherrard, Stanley Cecil

Sidgwick, Edward Dury

Sladen, Thomas Oliver Ramsay
Slater, Gilbert

Smith, Charles Alfred

Smith, Euan Maclaurin Euan, B.A.
Smith, Wilfrid Basil Woodd, B.A.
Smitton, Herbert Allan
Somerville, Robert Baxter
Spatford, Frederic Christian
Spicer, John Wynne

Stallwood, John Charles St. Laurence
Stidston-Broadbent, Herbert Owen
Stimson, Harold George

Stott, Oswald

Stratford, Harold George
Stratton, William Robert, B.A.
Stroud, Douglas Aikenhead
Sugar, James Burt

Thew, William Ernest
Torkington, John Kerr
Townshend, Brian Chambré, B A.
Turner, Augustus, M.A.

Turner, Harry Clifford

Turner, Wilfred

Walker, Harold Felvus

Walter, George Andrew
\Valters, John Howard

Walton, Stanley

\Vatson, Douglas Statham
Waugh, Algemon

Wells, Charles Henry

Whittaker, John Henry
Williams, Alured Humphrey
Williams, Hugh Neville

\Vi1ls, Henry

\Vindcatt, John

\Vontner, Adrian Russell

\Voods, Francis Edmund
Wordsworth, Ralph

\Vright, Bernard Swanwick
\Vi-ight, Charles Reuben

Young, William Henry Valentine

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The following candidates (whose names are in alphabetical order were) successful at the Final Examination, held on the lst and 2nd of

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Dickson, \V_illiam Herbert Arnold, William Channing Barraclough, John William
Diplock, lVilllam John Hubert Baird, Sydney Malcolm Barratt, \Valter Henry
Dixon, Michael Cory Baker, Charles Morton, B.A., LL.B. Baxter, Francis William

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