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CASES OF THE WEEK.

Court of Appeal.

TURNER v. STALLIBRASS AND OTHERS. No. 1. 22nd Nov. PRACTICE-COSTS-ACTION FOUNDED ON TORT-HORSE DELIVERED TO BE AGISTED-INJURY TO HORSE-NEGLIGENCE-COUNTY COURTS ACT, 1888 (51 & 52 VICT. c. 43), s. 116.

Appeal by the plaintiff from an order of Day, J., at chambers. The 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 defendants 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 a 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 plaintiff's costs upon the county court scale. The learned judge affirmed this decision. THE COURT (A. L. SMITH, RIGBY, 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. Manchester, Sheffield, and Lincolnshire Railway Co. (43 W. R. 120; 1895, 1 Q. B. 134); Kelly v. Metropolitan Railway Co. (43 W. R. 497; 1895, 1 Q. B. 944; and, in his opinion, 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 duty arose not to be negligent towards the animal. This was, therefore, an action of tort. RIGBY, L.J., concurred.

COLLINS, 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 upon some contract, it was an action founded on contract. If the plaintiff 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.-COUNSEL, T. W. Chitty; A. Lyttelton. SOLICITORS, 4. Slater; King & Burrell. [Reported by W. F. BARRY, Barrister-at-Law.]

NET SUM-SUCCESSION DUTY.

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, bis 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. Braithwaite (32 L. J. Ch. 35), held that the appointee took subject to payment of succession duty by him. The plaintiff, the appointee, appealed.

CHITTY, L.J., agreed. In the case of a pecuniary legacy given to one person only one sum of money was given so that the legatee got a clear sum: Haynes v. Haynes (1 W. R. 204, 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 Braithwaite (ubi supra), where his lordship would have arrived at a different conclusion. This was a question of construction, and the case was not governed by Banks v. Braithwaite (ubi snpra); here the appointed portion of the trust funds was clear of all charges. VAUGHAN WILLIAMS, LJ.-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 the 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. The word "net" 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.-COUNSEL, Cozens-Hardy, Q.C., and Medd; Godefroi; Swinfen Eady, Q.C., and Peterson; W. A. Peck. SOLICITORS, Valpy, Chaplin, & Peckham; Witham, Roskell, Munster, & Weld; Hasties. [Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.] DIEDERICHSEN v. FARQUHARSON. No. 2. 5th and 22nd Nov. SHIP-BILL OF LADING-INCORPORATION OF CONDITIONS OF CHARTER-PARTY INTO BILL OF LADING.

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Re SAUNDERS, SAUNDERS v. GORE. No. 2. 17th and 18th Nov. This was an appeal from the judgment of the Divisional Court (Day and SETTLEMENT CONSTRUCTION-APPOINTMENT OF STOCK SUFFICIENT TO RAISE 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 bills 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. The question 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.

THE COURT (LINDLEY, M.R, and CHITTY and VAUGHAN WILLIAMS, L.JJ.) allowed the appeal. LINDLEY, M.R, said that, with reference to Stirling, J.'s, judgment, it appeared to 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 of a 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. Braithwaite, 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 (ubi supra) did not apply. Of courɛo there was a difference between legacies and appointments of funds. The case of legacies was easier, but the reasoning with regard to legacies did not apply here. The appeal must be allowed, and the costs must come out of the last appointed fund.

Nov. 22.-THE COURT (A. L. SMITH and COLLINS, L.JJ., RIGBy, L.J., dissenting) dismissed the appeal.

A. L. SMITH, L.J., read a judgment in the course of which he said 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," did not incorporate all the conditions of the charter-party,

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but only those conditions "which would apply to the person who has
taken the bill of lading and is taking delivery of the cargo, such, for
instance, as payment for demurrage, 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. Perrin (unreported, but cited in [1891] 1 Q. B.,
at p. 295). 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 Serraino v. Campbell, (1891, 1 Q B. 283), and he would only take
three cases to show what had been held to be incorporated in a bill of lading
containing 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. Niemann (17
C. B. N. S. 163), Willes, J., gave the judgment of the Court of Common
Pleas upon this point as follows: "We now proceed to dispose of the
second point-that is, whether the exception contained in the bill of
lading is expanded by the exception in the charter-party. That depends
upon whether the words and other conditions as per charter-party in-
clude all the stipulations and conditions contained in that instrument, or
whether they are not limited to conditions ejusdem generis with those pre-
viously mentioned-viz., payment of freight, conditions to be performed
by the receiver of the goods. It is a mere question of language and con-
struction, and we think it is enough to say that the latter is the construc-
tion we put upon those words." That case had never been overruled,
but, on the contrary, this court in Serraino v. Campbell pointed out that it
had been expressly approved of by the House of Lords. In Serraino V.
Cam, bell Lord Esher, M.R, laid down the rule of construction thus:
"After 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 Manchester Trust v. Furness, Withy, & Co.
(1895, 2 Q. B. 282, 539), Mathew, J., treated this rule of construction as
then well known and settled; and in the same case on appeal the present
Master of the Rolls said that the effect of the reference was to incorporate
so much of the charter-party as related to the payment of freight 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
construction was therefore settled by conclusive authority. It was now
insisted by the plaintiff that when he by his captain signed this bill of
lading containing the words "freight and all other conditions as per
charter-party," the word "paying being left out, he, by so doing,
incorporated into the bill of lading conditions which otherwise would not
have been 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 plaintiff's 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 charter-party by the words "paying freight and all other conditions
as per charter-party," or "freight and all other conditions as per charter-
party," unless there was something therein clearly shewing that the well-
known rule was to be excluded. To point out that the contract of carriage
contained in the bill of lading 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
lading containing no exceptions as to one containing exceptions. He did
not propose to discuss the question whether the term in the charter-party
"including a deck cargo at merchants' risk" was or was not inconsistent
with the bill of lading, which was silent as to a deck cargo, and only
covered a cargo which was to be carried at shipowners' risk. In his
opinion the Divisional Court were right in holding that the clause in the
charter-party was not incorporated into the bill of lading; and the appeal
must be dismissed with costs.

ceding the general words? Was it equivalent to the words "paying
freight"? The 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 con-
vey 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 charter-
party. In each case the obligation to pay would be involved as au im-
plication 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 opinion 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' risk" was to be re-
jected as repugnant to the bill of lading-the bill of lading was
a contract of carriage, and in so far as the charter-party might con-
tiin terms not applicable to such a contract they would not be treated
as incorporated. But here the term proposed to be introduced bad
direct reference to the carriage of the goods. In nearly every bill of
lading 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 parties intended the contract
to be interpreted literally, and so to incorporate the terms of the charter-
party, 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 opinion 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.-COUNSEL, Lawson Walton, Q.C., and E. Bray; J. 4.
Hamilton. SOLICITORS, Harper & Badcock; W. A. Crump.
[Reported by F. O. ROBINSON, Barrister-at-Law.]

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In 1896 the

required money to pay off debentures then falling due. The plaintiff
In November, 1882, the plaintiff was a director of the company, which
found £300 of the money required, and took as security a promissory 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
the property of the company. In 1884 the plaintiff lent a further sm
series of debentures then being issued and forming a second charge upon
upon similar terms. In 1895 judgment in the action in which the plaintiff
claimed as holder of first debentures was pronounced.
plaintiff claimed to be allowed to exercise his option to take debentures
instead of his promissory notes, and to be paid pari passu with the holders
of second debentures. Until the judgment interest on the promissory
notes was paid at the rate of 5 per cent., the interest payable upon the
debentures was 43 per cent. The claim was rejected by the master, and
now the appeal came on with the further consideration of the action.
decided the question. The option to take a debenture could not be
NORTH, J., said that Re Queensland Land and Coal Co. (1891, 3 Ch. 181)
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,
take second debentures, and in his lordship's opinion he was entitled so
1896, the plaintiff made an affidavit claiming to exercise his option to
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 pro-
missory note. The costs must be added to the security.-COUNSEL, Swin-
fen Eady, Q C., and Ashtm Cross; D. Pollock; Hume Williams. SOLICI-
TORS, Everitt & Hodgkinson; Tamplin, Tayler, & Joseph.

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

CHEMIN DE FER DU NORD. North, J. 24th Nov.
COUNTER-CLAIM-SUIT BY FOREIGN STATE.

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 shipowner from SOUTH AFRICAN REPUBLIC v. LA COMPAGNIE FRANCO-BElge du 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 reference to cases really covered by them. None of those cases went beyond what was laid down by Willes, J., in Russell v. Niemann. In all of them the words were "paying freight and all other conditions as per charter-party," or their equivalent. Willes, 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 NORTH, J.-The application to strike out the counter-claim must matter purely as a matter of construction of the very words used, and had no succeed. The plaintiffs are a foreign republic, in the position of a foreign intention of laying down any general rule as to the meaning of the words sovereign. One of two trustees of a fund died, as to the application of "all other conditions" independently of the introductory words "paying which the plaintiffs and defendants differ, leaving the trustee nominated freight." The Court of Appeal in Gardener v. Trechmann (15 Q. B. D. by the defendants surviving, and he proposed to deal with it in a way 154) seemed to him to have held that the words "all other conditions as the defendants think right, but which the plaintiffs think wrong. The per charter-party," when not controlled by the context, were sufficient to plaintiffs ask for the appointment of a new trustee and payment out of introduce all the terms of the charter-party not repugnant to the contract the fund, so that matters may go on as before the death of the trustee contained in the bill of lading. What was the effect of "freight" pre-nominated by the plaintiffs. The funds have been paid into court. The

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 the 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.

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 restrained 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. King of Hanover (6 Beav. 1) and Strousberg v. Costa Rica Republic (29 W. R. 125) state the law on the 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.-COUNSEL, Swinfen Eady, Q.C., and Waggett; Vernon Smith, Q.C., and Whinney. SOLICITORS, Harwood & Stephenson; Clarke, Rawlins, & Co. [Reported by G. B. HAMILTON, Barrister-at-Law.]

PAGET v. PAGET. Kekewich, J. 2nd and 16th Nov. MARRIED WOMAN-RESTRAINT ON ANTICIPATION-RELIEF-HUSBAND'S DEBTS-WIFE'S RIGHT TO INDEMNITY-CONVEYANCING AND LAW OF PROPERTY ACT, 1881 (44 & 45 VICT. c. 41), s. 39.

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 plaintiff 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. Carmichael (1 Kay 613), Aguilar v. Aguilar (5 Mad. 414), Clinton v. Hooper (1 Vesey, jun. 172a), Pawlet v. Delaval (2 Ves. sen. 662), Milnes v. Busk (2 Ves. jun. 488), and Huntingdon v. Huntingdon (2 Bro. P. C. 1), White and Tudor's L. C., 6th ed., 1147. KEKEWICH, 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.-COUNSEL, Renshaw, Q.C., Carson, Q.C., and A. àB. Lawson Walton, Q.C., Warrington, Q.C., and J. Henderson. SOLICITORS, Leman & Co.; Dawes & Sons.

Terrell;

[Reported by R. J. A. MORRISON, Barrister-at-Law.]

CARLISLE CAFE CO. AND TODD v. MUSE BROTHERS & CO. Byrne, J.
12th and 15th Nov.
LANDLORD AND TENANT-LEASE OF ROOMS-OUTER WALLS-DEROGATION
FROM GRANT-IMPLIED CONTRACT.

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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 alleged that during the negotiations Todd represented that the defendants should have the exclusive right to affix 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 "Silver 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 sign 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. BYRNE, 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 defendants 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 thesc facilities. Judgment for the defendants.-COUNSEL, Eve, Q.C., and

Wilkinson; Mulligan, Q.C., and Gurdon. SOLICITORS, Indermaur & Brown, for Blackburn & Main, Carlisle; Gray, Mounsey, & Fuller, for Wannop & Westmorland, Carlisle. [Reported by NEVILLE TEBBUTT, Barrister-at-Law.]

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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 & Sons (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 five hundred 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. request you to place my name on the register of members in respect of the such allotted shares as and when the same become due, provided the total shares so allotted to me, and I undertake to pay the further instalments upon number of shares are applied for, and I undertake to pay in full on allotment. Ordinary signature, ; name (in full), George William Tomlin; address, Dudley-street, Leighton Buzzard; description, no occupation; date 24th July. 1896. If you desire to pay in full on allotment sign the following: I This form is to be filled up, cut out, desire to pay in full on allotment. and forwarded, together with cheque or cash for the amount payable on application to the bankers, &c., or to the secretary at the offices 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 application or at any subsequent time. The company shortly afterwards 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 company was presented. Tomlin gave the usual contributories' 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 appealed against it, but the Court of Appeal dismissed their application. Tomlin now applied again to have his name struck off the list of contributories.

WRIGHT, 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.-COUNSEL, Norman Craig; Hon. Frank Russell. SOLICITORS, Beall & Co.; Day, Russell, & Co.

[Reported by C. W. MEAD, Barrister-at-Law.]

High Court-Queen's Bench Division. WHITFIELD v. BISHOP AUCKLAND URBAN DISTRICT COUNCIL. Wright, J. 20th Nov. PUBLIC HEALTH--DAMAGE CAUSED BY DEFECTIVE SEWERS-MISFEASANCE BY LOCAL AUTHORITY.

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 caused 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 defendants. Before 1892 the sewer was repaired; and again in 1892 part of it became defective owing to subsidence, and had to be repaired. The defendants' surveyor ordered the pipes to be taken up for a distance of ten yards on each side. In 1895 the plaintiff's houses, which were lower down the street 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 defectivo condition of the joints of the pipes, were negligent in allowing the pipes to remain in the ground. The jury the learned judge left the following questions to the jury: (1) Were 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) Was 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) Was 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: Atkinson v. Newcastle and Gateshead Waterworks Co. (2 Ex. D. 441), Leek Improvement Commissioners v. Justices of Stafford (20 Q. B. D. 794), Cowley v. Newmarket Local Board (1892, A. C. 345), and Robinson v. Workington Corporation (45 W. R. 453; 1897, 1 Q. B. 619) were cited. WRIGHT, 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 an appeal.-COUNSEL, Tindal Atkinson, Q.C., and Simey; Strachan, Q.C., and H. F. Manisty. SOLICITORS, Hickens, Smith, & Capel-Cure, for Simey & Iliff, Sunderland; Field, Roscoe, & Co.

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

Solicitors' Cases.

WATERLAND v. SERLE. C.A. No. 2. 24th Nov. PRACTICE-SOLICITOR-COSTS-"PROPERTY RECOVERED OR PRESERVED ". CHARGING ORDER-COSTS OF APPEAL-SOLICITORS ACT, 1860 (23 & 24 VICT. c. 127), s. 28.

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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 attorney 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, matter, 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, charges, and expenses out of the said property as to such court or judge shall appear just and proper Kekewich, J., dismissed the summons, and refused to make any order. The solicitor appealed. THE COURT (LINDLEY, M.R., and CHITTY and VAUGHAN WILLIAMS, L JJ.) allowed the appeal.

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, & 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 Webb executed a memorandum to the effect that of the £6,000 £3,000 belonged to the Stokes trustees and the remain. ing £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 4 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 Messr3. 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 plaintiff 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, & 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 pari passu 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, & Garrard were adjudicated bankrupts, and the defendant West was appointed trustee in the bankruptcy. On the 24th of July, 1894, the plaintiff Whitfield was appointed a trustee of the will of Hester Stokes in The £6,000 was still owing on the mortgage the place of Garrard. security, which had not yet been realized, but was admitted by all parties to be insufficient to satisfy the debt.

STIRLING, 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 simply a personal contract by the firm as to which it might be right to prove in bankruptcy, but which conferred no rights against the specific property in question. His lordship continued: As to the third 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 be answerable 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: Barnes 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.

Un

LINDLEY, M R., said that their lordships had been considering the ques-doubtedly the law imposes considerable disabilities on solicitors in dealing tion 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 review his former taxation; such costs to include, as between solicitor and client, costs in the court below and costs of the appeal. Appeal allowed.-COUNSEL, Cozens-Hardy, Q.C., Warrington, Q.C., and Ingpen; Renshaw, Q.C., and J. M. Stone; Badcock; H. L. Manby; Herbert Jacob. SOLICITORS, F. W. Bertie; Stones, Morris, & Stone; J. Hextall; R. Norman; Lickorish & Co.

[Reported by W. SHALLCROSS GODDARD, Barrister-at-Law.]

STOKES v. PRANCE. Stirling, J. 28th and 29th July, 3rd August,

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17th Nov.

SOLICITOR AND CLIENT MORTGAGE BREACH OF TRUSTRELATIONSHIP-GUARANTEE.

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FIDUCIARY This was an action to obtain a declaration that the trustees of the wilt of Hester Stoker, deceased, were, according to the true construction of two declarations of trust dated respectively the 1st of January, 1877, and the 8th of October, 1886, entitled with the defendant Webb 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 New, Prance, & Garrard, bankrupts, and of Henry Smith, deceased, 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

with their clients: See Segrave v. Kirwan (Beat. 157), Bulkley v. Wilford (2 Cl. & Fin. 102), Horan v. MacMahon (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. 22 Ch. D. 604). Against those decisions there is not a word to be said, 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 an advance of decision. The transaction contemplated in 1876 was £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 transaction 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.-COUNSEL, Woods, Q.C., and Eastwick; Dauney; W. C. Prance; Hastings, Q.C, and Badcock; J. R. Brooke. SOLICITORS, Blake Moss, for Nevinson & Barlow, Great Malvern; M. H. Prance; Crowders & Vizard; Burton, Yeates, & Hart, for Johnson, Barclay, & Rogers, Birmingham.

[Reported by J. I. STIRLING, Barrister-at-Law.]

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did not appear, but the master refused to order judgment to be entered because the affidavit 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 plaintiff to make the affidavit."

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.-SOLICITORS, Aird, Hood, & Cc.; S. G. Edridge.

LAW SOCIETIES.

THE SOLICITORS' MANAGING CLERKS' ASSOCIATION. On Tuesday evening Mr. T. W. Wheeler, Q.C., delivered the inaugural lecture before a large gathering of members of this association in one of the lecture rooms of the Inner Temple. The chair was taken by Lord Justice Vaughan Williams, who in a few introductory remarks dwelt upon the importance to the proper conduct of legal business that solicitors' managing clerks should be gentlemen of learning, tact, and discretion. It would be a serious blow to the administration of justice in this country if there should be any falling off 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 Williams, 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 their commercial usages should be recognized which compelled the law to adopt the method of implying terms in certain 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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Dodds, Thomas

Dowker, Frederick Henry
Drinkwater, George William
Dyer, Watson

Eddrup, Edward Charles Paroissien,
B.A.

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, Laurance
Freeman, David
Freeman, John Arthur
Garner, James Brooke
Gledhill, John Joseph
Good, Jonas Albert Thomas
Griffiths, 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 Willan
Johnson, John Richard
Jones, Merton Addlestone
Jones, Rhys Thomas
Jones, Sydney

Jones, William Caer

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Stallard

Penoyre Baker

Perkins, Harold Wootton
Perkins, James Wickstead
Pickles, John William
Piercy, George

Platts, William Henry John
Purkis, Charles Sydney
Purkis, Harry Wakeham
Randall, Henry John

Reay-Nadin, Robert Armstrong
Reed, John James

Ridley, Thomas Matthew
Ritchie, Robert

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

Rooke, 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

Spafford, 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

Lamaison, Leonard William Henry Sugar, James Burt

Lamb, Bruce

Landau, Isaac
Laws, Edward Lucien
Lea, Ernest 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
Milus, Harry

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

Torkington, John Kerr

Thew, William Ernest

Townshend, Brian Chambré, B A.

Turner, Augustus, M.A.

Turner, Harry Clifford

Turner, Wilfred

Walker, Harold Felvus

Walter, George Andrew

Walters, John Howard

Walton, Stanley

Watson, Douglas Statham
Waugh, Algernon

Wells, Charles Henry

Whittaker, John Henry

Williams, Alured Humphrey

Williams, Hugh Neville
Wills, Henry

Windeatt, John

Wontner, Adrian Russell
Woode, Francis Edmund
Wordsworth, Ralph
Wright, Bernard Swanwick
Wright, Charles Reuben
Young, William Henry Valentine

FINAL EXAMINATION.

The following candidates (whose names are in alphabetical order were) successful at the Final Examination, held on the 1st and 2nd of November, 1897 :

Arnold, William Channing Baird, Sydney Malcolm

Barraclough, John William Barratt, Walter Henry

Baker, Charles Morton, B.A., LL.B. Baxter, Francis William

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