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effect of sub-section 2 of section 25 of the Conveyancing Act, 1881, which provides that, "in any action, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the court, on the request of the mortgagee, of any person interested either in the mortgage money or in the right of redemption, and not with standing the dissent of any other person,... may, if it thinks fit, direct a sale of the mortgaged property on such terms as it thinks fit." The action was brought by one of the co-owners of land against the other co-owners for a partition or sale of the property. The plaintiff had mortgaged his interest to one of the defendants. The mortgagee contended that the plaintiff should not be allowed to enforce against her will a sale or partition until the mortgage debt had been paid. It was urged on behalf of the plaintiff that the above section of the Conveyancing Act enabled the court to direct a sale. FRY, J., said that, as a general rule, a mortgagor could have no rights against bis mortgagee unless he was prepared to redeem the mortgage. The character of the property in the mortgagee's hands ought not to be altered against his will while the mortgage was not paid off. Section 25 of the Conveyancing Aot did not empower the court to sell property which was not included in the mortgage, and that would be the effect of ordering the sale asked for. The plaintiff was entitled to a partition only on the terms of paying off the mortgage.-SOLICITORS, Hughes, Hooker, & Co.; Frior, Bigg, & Co.

COMPANY-WINDING UP-CONTRIBUTORY-DIRECTOR-COMPANIES ACT, 1862, s. 23.-In a case of In re The Electric and Magnetic Company, before Fry, J., on the 20th inst., the question arose whether a director of a company, to whom no shares had been allotted, was liable as a contributory in the winding up of the company in respect of the number of shares which, by the articles of association of the company, were the qualification of a director. The articles of association provided that the qualification of a director should be the holding of twenty-five shares. C. was elected a director at a time when he held no sbares, and he acted as such. After his election he applied to the company for an allotment of forty shares, the application stating in the usual way that the applicant agreed to accept the forty shares or any less number which might be allotted to him. After the application was sent C. continued to act as director. Before any allotment had been made the directors passed a resolution that the applications for shares in the company were not sufficient to justify any allotment being made, and that the applicants should be allowed to withdraw their applications. C. then withdrew his application. The company was ordered to be wound up, and the liquidator sought to place C. on the list of contributories in respect of twenty-five shares. It was urged that the assent of the company to C.'s acting as director after he had applied for shares amounted to an agreement to give him twenty-five shares, the qualifying number, in answer to his application. FRY, J., declined to accede to this argument. He said that the application was for an allotment of shares. An allotment meant an assignment to the applicant of a definite number of shares, and the mere permitting C. to act as a director was not an allotment. If he had applied for a large number of shares and had continued to act as director for one day afterwards, he could not, if the shares had turned out very valuable, have compelled the company to give them to him. He could not, therefore, be compelled to take the shares merely because he had acted as director.-SOLICITORS, W. T. Manning; Ashurst, Morris, & Co.

PATENT-ANTICIPATION-PUBLICATION-BOOK IN FOREIGN LANGUAGE. In a case of The United Telephone Company ▼. Harrison, before Fry, J., on the 19th inst., the question arose whether the plaintiffs' patent for telepbones had been anticipated by a previous invention of a German inventor. And this gave rise to the question whether the German invention had been sufficiently published in this country. A description of it, written in the German language, had been published in Germany, some years before the date of the plaintiffs' patent, in a scientific journal called Zeitschrift des Deutsch-Oesterreichischen Telegraphen Vereins. The description was illustrated by figures. A copy of this journal was in the library of the Patent Office in London, and another copy was in the library of the Institute of Civil Engineers in Westminster, in the catalogue of which, however, it was entered only under the head of "Journals," not under the head of "Telegraphs" or "Telephones." The institute consisted of over 3,000 members, all of whom had access to the library, and they had also the privilege of introducing friends. FRY, J., held that this amounted to a sufficient publication of the invention in England. He came to the conclusion on the whole, though not without some doubt, that the description in the Zeitschrift must be considered to have been within the knowledge of persons in this country who were skilled in such matters.-SOLICITORS, Waterhouse & Winterbotham; Davidson & Morriss.

EVIDENCE-WITNESS ABROAD-COMMISSION-Ord. 37, r. 4.—In a case of Crofton v. Crofton, before Fry, J., on the 20th inst., the question arose whether a commission ought to be issued to take the evidence of a witness who was a Frenchman, residing in France, and who declined to come to England to be examined, or to make an affidavit. The action was brought for the administration of the estate of an English lady who had died a widow and intestate in France. The proposed witness was a Frenchman, with whom she had lived as his wife, though she had not been married to him. The applicant for the commission was a person who claimed to prove against the estate of the intestate for a large sum, to which he said he was entitled, partly for his own benefit and partly as a trustee for other persons, one of whom was the proposed witness. It was asked that a commission should issue directed to the President of the Civil Tribunal of the Department of the Seine in Paris and the judges thereof. There was evidence which showed that, according to

the practice of the French court in such cases, any questions put to the witness would be put only through the judge, and that there would be no opportunity of cross-examination. FRY, J., said that the case was a suspicious one, and the proposed witness ought to be subjected to a most drastic crossexamination. Under the circumstances he declined to delegate to any other He, therefore, refused the application.-SOLICITORS, M. Abrahams & Co.; tribunal the determination of what questions ought to be put to the witness. Gregory, Rowcliffes, & Co.

the case of The Midland Electric Light and Power Company . The Brush INJUNCTION-SIMILARITY OF NAME-COMPANIES ACT, 1862, s. 20.-In Midland Electric Light and Power Company, before Chitty, J., on the 19th inst., the plaintiff's moved for an injunction to restrain the defendants from using the name of the Brush Midland Electric Light and Power Company, or any other name identical with or so nearly resembling the plaintiffs' name as to be calculated to deceive or mislead. The plaintiffs' case was that the defendants had by accident and without any fraudulent intention adopted in the first instance a name identical with that already registered by the plaintiffs, and upon the Registrar of Joint Stock Companies pointing out the identity and declining to register, the defendants added, by way of prefix, the term " Brush to that attempted to have been registered, and proceeded to registration. The plaintiffs' office was in Birmingham, and they had proposed to confine their business to the strictly Midland counties. The defendants' office was in Lombardstreet, and their prospectus set forth the intention of doing business in South Wales, &c., and in two counties only strictly describable as Midland—viz., Nottinghamshire and Leicestershire. CHITTY, J., without calling upon the defendants, said that the whole question was whether there was so near a resemblance between the two names as to be a "resemblance calculated to deceive," to use the words of the 20th section of the Companies Act, 1862, which section had been decided by the Appeal Court in Hendriks v. Montagu (L. R. 17 Ch. D. 638), to have embodied what had previously been the received ground in courts of equity for granting injunctions in cases like the present. In his lordship's opinion no person in his senses could be deceived by the defendants' use of the name. Their first and leading word was 'Brush," and with respect to their use of the word "Midland," that word was not either in law or even in geography a term of art. The plaintiffs' case failed altogether. The motion between the parties that the hearing of the motion should be treated as the must be refused with costs. After his lordship's judgment, it was agreed trial of the action.-SOLICITORS, H. Tyrrell, for H. Consett Passman, Leamington; Ingledew & Ince.

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LUNACY-ACTION BY PERSON OF UNSOUND MIND NOT SO FOUND-NEXT

FRIEND-COMMITTEE.-In the case of Powell v. Powell, before Chitty, J., on of rents of real estates in Breconshire. The action was, in substance, an action the 19th inst., a motion was made by the plaintiff for a receiver, pendente lite, eldest surviving son of the tenant for life. At the date of the writ the of ejectment, and the plaintiff claimed the estates in question as the alleged plaintiff was a lunatic not so found by inquisition, and sued by his next friend. The plaintiff having since been made a lunatic by inquisition, but the present proceedings as irregular and void. His lordship held that the no committee of his estate having been appointed, objection was taken to objection was good, and that an application must be made in lunacy for the appointment of a committee of the plaintiff's estate before the action could be validly proceeded with.-SOLICITORS, R. Carter, for Evans, Llandovery; C. St. J. Roche, for Jones, Llandovery.

PAYMENT OUT OF COURT-DISAPPEARANCE OF PARTY INTERESTED-PRESUMPTION OF DEATH AND NON-MARRIAGE.-In the case of Re James, before Chitty, J., on the 20th inst., a petition was presented for payment out of a sum paid into court by trustees and executors representing the share to which a son of the testator was entitled under a gift by the testator of residuary property to his children nominatim. The testator died in the year 1874. It was stated by the affidavits that the legatee in question went, in the year 1863, when he was twenty-three years of age, upon an exploring expedition into the interior of Australia, and, notwithstanding advertisements inserted in the Australian newspapers during the year 1866 containing offers of reward for information about him, he had never since been heard of. The court was asked to presume that he had died during his father's lifetime intestate and a bachelor. His lordship made an order upon this presumption, requiring, however, a further affidavit as to the legatee never having been married.-SOLICITORS, F. Richardson § Sadler.

SETTLED ESTATE-POWER OF SALE-SALE OF WHOLE ESTATE-INVESTMENT-PERSONALTY.-In the case of Quin v. Tyler and Quin v. Gallwey, before Chitty, J., on the 20th inst., a petition was presented by the trustees and tenant for life, without impeachment of waste, of a family estate com. prising a mansion house, for leave to sell the whole estate together with the mansion house. The tenant for life was twenty-three years of age and unmarried, and the estate was, after his death, limited to his issue in tail male, with remainder to his younger brother in strict settlement. The trustees possessed the usual powers of leasing and of sale and exchange with the consent of the tenant for life. The petitioners stated that the nominal income from the estate was some £2,800 per annum, including £500 a year for minerals, and £300 in respect of the rental of the mansion house, which was leased, together with the shootings, to a yearly tenant for the last named sum. The tenant for life had incumbered his life estate, and there were also considerable family charges on the property, and the net income derived by the tenant for life was, in fact, about £1,050 per annum, which would be liable to be reduced to £250, in the event of both the mineral income failing and the mansion house being un

tenanted.

The

SOLICITORS' CASES.

HIGH COURT OF JUSTICE-CHANCERY DIVISION.

(Before Kay, J.)

May 2, 3.-Bailey v. Barlow.

-Refusal to give conveyance-Costs.

Under these circumstances it was stated that it was impossible for the tenant for life to live at, or to take any pride or interest in, a property which, although nominally his own, was utterly useless for any residential purposes; and that as he was tenant for life without impeachment of waste, it was his fixed determination to exercise his powers in making the most out of the estate by cutting timber and opening mines, and, on the other hand, to spend nothing in repairs or re-planting, and that he had asked the trustees to Purchase of landed property-Tender of purchase-money to stop interest relieve him froin his intolerable position by selling the whole estate, and they, looking as much to the interests of the remaindermen as to those of the tenant for life, considered that family prudence would justify the sale. It was proposed, in the event of the court permitting a sale, to pay the purchasemoney into court for re-investment on the authorized securities. younger brother had been served, and made no objection to the proposed sale and re-investment. CHITTY, J., said that, notwithstanding the ruling of Lord Eldon in Mortlock v. Buller (10 Ves. 291), to the effect that the object of a sale under a power of sale contained in a settlement of a family estate must be to invest the money in the purchase of another estate, he was of opinion that he could make the order as prayed. It would be, no doubt, a beneficial order for the tenant for life, and, what was more important, for his issue if he should have any; for the income of the estate was all the property which the tenant for life would himself have to spend on them. The law since Lord Eldon's time had been, on public grounds, much altered, and if Lord Cairns' present bill should become law, there was no doubt that the tenant for life would have the power he here asked for. He, therefore, felt no hesitation, and would make this order.-SOLICITORS, Frere & Co.; Farrer, Ouvry, &

Co.

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BEFORE

LIMITED COMPANY WINDING-UP PETITION-EXAMINATION SPECIAL EXAMINER-LEAVE TO ATTEND BEFORE SPECIAL EXAMINERSHAREHOLDERS NOT RESPONDENTS TO PETITION-COMPANIES ACT, 1862, ss. 85, 86.-In the case of In re The New Callas Company (Limited), before Chitty, J., on the 22nd inst., a petition presented by a shareholder for the winding up of the company was ordered to stand over for the directors of the company, who were respondents, to file affidavits, and, such affidavits having been filed, the petitioner obtained an order for the cross-examination of the respondents before a special examiner. Upon the matter again being mentioned an application was made by shareholders who had not been served for leave to attend the cross-examination. CHITTY, J., said that the Companies Acts and the orders made thereunder were absolutely silent as to the right of the applicants to attend the proceedings. There were no reasons specially mentioned to him why he should accede to the application, and, in the absence of precedent, he should decline to do so.-SOLICITORS, Greenfield Abbott; W. L. J. Ellis; Beall; Lewis Davis.

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WILL-RESTRAINT ON ALIENATION GIFT OVER ON BANKRUPTCYREPUGNANCY-CONDITION-CONDITIONAL LIMITATION.-In the case of In re Machu's Will, before Chitty, J., on the 22nd inst., a petition was presented for the payment out of court of a sum of £6,200 paid in by a railway company in respect of the purchase-money of part of the testator's real estate, and the question arose whether a proviso against alienation by bankruptcy appended to a devise in fee could be supported, supposing that the court should construe the proviso as a conditional limitation. In the case before the court the testator by his will gave his freehold, copyhold, and leasehold estates, comprising the land purchased by the railway company, unto and to the use of his daughter, her heirs, executors, administrators, and assigns, subject, nevertheless, to the proviso hereinafter contained." The proviso, which followed, was a proviso containing a gift over in case his daughter should at any time be declared a bankrupt or liquidate with her creditors. It was submitted, on the hand, that the devise tantamount to a condition in restraint of alienation, and therefore void, as being in repugnancy to the absolute interest previously given. On the other hand, it was contended that the whole must be read together, and construed accordingly into a conditional limitation, upon the principle laid down by Lord Cottenham in Webb v. Grace (2 Pb. 701). The point was stated to be absolutely novel, there being no reported case where a proviso in the nature of a conditional limitation limiting over or making to cease an absolute interest on bankruptcy or insolvency had been upheld, notwithstanding the note on Bradley. Peixoto (Tudor's Leading Cases on Real Property, 3rd ed., p. 978), which names authorities in support of a contrary view. CHITTY, J., said he was of opinion that the testator had put in a clause which was a condition, but not a conditional limitation. There might appear to be some ground for saying that Lord Cottenbaum did not take the same view in Webb v. Grace, where he read the proviso as incorporated in the original limitation, because the limitation was made subject to the proviso hereinafter contained." He acquiesced in Lord Cottenham's view, but the question there was a question of construction on a very different instrument. There was no limitation as here to A. and his heirs, executors, administrators, and assigns. The proviso here was a clause making altogether void the previous gift, and if it were upheld there was no means of avoiding the absurd and unfair construction that, in the event of bankruptcy, the gift was void ab initio, and not merely from the date of bankruptcy. He, therefore, held the condition in question was a condition pure and simple, and as such void for repugnancy.-SOLICITORS, Turner & Low; Angell, Imbert-Terry, & Page.

The Pall Mall Gazette announces the death, on Wednesday, of Alderman Henry Ingledew, of Newcastle, said to be the oldest solicitor in the United Kingdom, aged ninety-six years. Mr. Ingledew had been a solicitor for upwards of sixty-five years, and, entering the Newcastle Town Council when he was fifty-three, he was for forty-three years a member of that body.

On the day fixed for the completion of the purchase of certain land the vendor's solicitor refused to complete, unless a collateral agreement as to the making of certain roads adjoining the property was settled. The solicitor for the purchaser then tendered to the solicitor for the vendor the purchase-money "to stop interest." The money was taken by the vendor's solicitor, but he refused to hand over the conveyance of the land in question, or to give an acknowledgment for the mouey, or to produce his authority to receive it, the agreement as to the roads being Held, that the vendor's solicitor had no right to accept the tender of the purchase-money without at the same time delivering the convey

still uncertain.

ance.

The vendor's solicitor being made a defendant, and it appearing at the trial that the vendor would have been ready to accede to the purchaser's wishes as to the agreement respecting the roads, the solicitor was ordered to pay the whole costs of the action.

Trial of action.

This was an action brought by Mr. Bailey against Mr. Barlow and against Messrs. Last & Sons, who acted as solicitors for Mr. Barlow, to enforce a contract for purchase of two pieces of land. Mr. Bailey signed a written contract, dated June 10, 1881, to purchase certain land from Mr. Barlow. There was also, subsequently, an agreement to buy a further piece of land, and the plaintiff further agreed to pay £100 towards the expenses of a road or roads to be constructed by the defendant Barlow on their completion. There was, however, a misunderstanding between the plaintiff and the defendants, Messrs. Last & Sons, who were acting on behalf of Mr. Barlow, as to whether the £100 was to be paid on the completion of one or two roads by Barlow.

plaintiff, with his solicitor, attended at the office of Messrs. Last & Sons. On November 24, 1881, the day appointed to complete the purchase, the Mr. Last refused to complete unless the plaintiff would sign a collateral agreement for the payment of the £100 on the making of one road only. The plaintiff's solicitor then said to Mr. Last, "I shall make a tender of the purchase-money to stop interest." He then offered the sum of £3,567 Os. 8d. Mr. Last took the money, but refused to give a conveyance until the agreement as to the roads should be settled. He also refused to give an acknowledgment for the money, or to show bis authority to receive it. An action was then commenced by the plaintiff, claiming an injunction to restrain the defendants Barlow and Last & Sons from parting with the deed of conveyance or the sum of £3,567 Os. 8d. Since the commencement of the action the purchase had been completed, and the agreement as to the making of the roads settled, and practically the only matter now in dispute was as to the costs of the action.

Rigby, Q.C., and Sangster Green, appeared for the plaintiff.

Higgins, Q.C., and B. B. Rogers, for the defendant, contended that where probase-money is tendered to stop interest, it is always tendered without imposing a necessity of giving a conveyance. A purchaser can at any time after the time fixed for completion of the purchase tender the money, and so stop the interest.

misunderstanding and dispute about the roads, and the vendor had a perfect KAY, J., in the course of his judgment, said:-There was a bonâ fide right to say, "Now, I am not going to convey these two pieces of land to you until we have this matter about the roads definitely settled." On the 24th of November, when the parties went to Messrs. Lasts' office to complete the purchase, Mr. Last had a right to say, "At any rate, I will see my principal, and ascertain from him whether he will accept the terms offered before he will allow this conveyance to go out of my hands." That was a most reasonable request. The other side, however, asked to have the matter settled then and there, and to allow the matter as to the roads to stand over generally. Mr. Woodward, the solicitor for the purchaser, had raised the purchase-money for the plaintiff by borrowing it from other clients, and it was a matter of considerable importance to him to have the purchase completed at once, in order that a conveyance might be got. He therefore made a tender of the purchase-money. He said, "I shall make a tender of the purchase-money to stop interest." Now, it seems to me really, that, under the circumstances which I have detailed, the meaning of that was absolutely without question. If Mr. Woodward and his client were right, and if the agreement was an agreement which they had power to enforce, then the tender of the purchase-money might have stopped the interest. But why? For this reason only, that then in that state of things, if they had a binding agreement according to their view of it, they would be entitled there and then to complete. The object of Mr. Woodward and his client was to put the defendants entirely in the wrong, by saying, "We will do everything on our part to complete this transaction, and we will make it clear that it is your fault if we are right on the only question that is now left between us." The tender of the purchase-money was, in fact, merely doing that which the purchaser considered incumbent on him to do in order to complete his part of the matter, and it is absolutely, to my mind, as clear as the sun at noon-day that everybody there understood perfectly well

Reported by A. J. SPENCER, Esq., Barrister-at-Law.

that that purchase-money was only offered as part of the completion, and
upon the usual terms that the conveyance should be given in exchange for it,
and that everybody there thoroughly understood that, unless the conveyance
was given in exchange for it, it was the duty of the defendant's solicitor to
refuse the tender and not take the money.
Mr. Last and his firm are rightly made parties to this action, because at
this interview he did not even produce his authority to receive the money,
although he was asked for it, and the plaintiff had no choice but instantly to
place a writ on the file. An arrangement has since been made which the
parties were very wise to come to. Whatever may be the case as to making
solicitors and others in a like position parties to an action merely for the sake
of praying costs against them, as to which there is very considerable authority,
it is quite clear from Heatley v. Newton (30 W. R. 72, L. R. 19 Ch. D. 326),
and other cases, that if they are made parties for any part of the relief in a
case in which it may be proper at the hearing to make them liable for costs,
the plaintiff has a right to retain them until the hearing, unless they offer to
stay the suit by paying all the costs. In this case no such offer has been made.
From the evidence of Mr. Barlow, it appears that if Mr. Last had postponed
the completion, refused the tender, and referred the matter to his client, his
client would have accepted the view which the plaintiff took, and this action
would never have been brought. I am, therefore, obliged to say that Mr.
Last must pay all the costs of this action.

Solicitors, Ravenscroft, Hills, & Woodward; Last & Sons.

COUNTY COURTS.

Bow.

(Before J. B. DASENT, Esq., Judge.)

May 19.-Franks v. Silver & Co.

Employers' Liability Act, 1880-Defective notice of injury-Section
County Court Rules, 1880, r. 3-Particulars of demand.
The plaintiff sued under the Employers' Liability Act to recover from his
employers the sum of £200, as compensation for personal injuries.
Thomas, instructed by Nazer, for the plaintiff; and

Ruegg, instructed by Watson, Sons, & Room, for the defendants.
The notice of injury required to be given by section 4 of the Act was con-
tained in a letter written by the plaintiff's solicitor to the defendants, which
merely stated that the plaintiff had been injured in consequence of being
directed to stand upon a loose board in running water."

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In the particulars of demand required by the County Court Rules of 1880, r. 3, to be attached to the summons, the plaintiff attributed his injury to "defect in the conditions of the ways, works, machinery, or plant connected with or used in the business of the employer.'

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interest of the employer as the spinner that these assistants should be competent, submissive to the control of the spinner, and that all should work in barmony together as efficiently and regularly as the mules themselves. At the appointed pay-day the practice has been for the spinaer to include the wages of the piecer and creeler as part of his wages for the week; the amount is paid to him by the employer, and out of the sum so paid he pays the wages of the piecer and creoler. This practice has been continued so long and become so general that the plaintiff insists that the piecer and creeler are entirely and exclusively his servants-that their contract of service is with him alonethat he, of his own independent authority, hired them and fixed the amount of their wages, that he is liable to them for those wages, and that he alone, independently of his emplover, can determine their contract of service; and as a consequence that the defendants, as his employers, have no control over the assistants he engages, nor are in any way concerned, or have any right to interfere, with the amount of wages to be paid or their payment. Accordingly in exercise of this right as claimed by the plaintiff, when he gave the defendants his week's notice to leave their employment, he at the same time gave a week's notice to the piecer and oreeler to leave their employment with him. This notice the piecer and creeler accepted, and they, on the 22nd of March, left the defendants' mill together with the plaintiff. No notice whatever was given by either of these workmen to the defendants. On Saturday, the 25th of March, the pay-day, the plaintiff brought in his claim for wages as usual. This amounted to £2 198. 44d., and included the wages of the piecer 17s. 6d., and the creeler 108., together £1 78. 6d.; the difference, £1 11s. 10d., being the amount due to the plaintiff for his work as spinner. This sum the defendants offered to pay him and he accepted it, but the defendant refused to pay him the £1 7s. 6d., on the ground that they had not received any notice from either the piecer or creeler; and, treating them as defendants' servants, they insisted upon their right to retain those sums, so that when applied for by the piecer and creeler for their wages the defendants could set up a cross-demand for damages for breach of contract, on having left their service without giving the notice required by the rules. After this dispute had thus arisen the plaintiff, in discharge of 4-what he considered to be his duty as the employer of the piecer and creeler, paid them their wages and they accepted them from him, as their employer, thus ignoring any contract of service with the defendants, and this action is now brought by the plaintiff for the amount so paid, £1 7s. 6d., treating that sum as representing work and labour done by him for the defendants. The question thus raised between the plaintiff and defendants is represented as being one of interest and importance as well to the employers of labour as the employed in the spinning trade, which is extensively carried on in Burnley and the adjoining district, and this action is treated as a representative action, the decision in which will determine several other actions now pending in this court against the defendants. The claim of the plaintiff involves the right to limit the exercise of control by the defendants over parties employed in their mill; in other words, it seeks to establish an imperium in imperio on authority in the mill, enabling labour to control capital to an extent which interferes with that freedom which is the equal right of capital and labour. It is little short of a claim to a proprietary right, one which in time might ripen into a right to claim compensation for disturbance, as it is easy to suppose a case in which an employer might desire to alter the arrangements of his mill in a manner which would involve the determination of a contract of service with some particular spinner against whom no fault could be alleged, and who might say, Why throw me out of employment merely to put in my place another no better than I am? I suffer loss through your act, give me compensation. Such a claim must be able to stand the test of close examination, because it interferes with that liberty which is with the relation between the parties, arising out of the contract of employthe equal right of both contracting parties, its necessary effect being to interfere ment and service, to the prejudice of one party and against his will. The claim practice, but these do not appear to me to be the proper test by which to is rested for its foundation upon the generality and long continuance of the determine the several rights and liabilities of the respective parties, in a case which originates in a simple contract of employment on the for by the terms of the contract. one hand, and service on the other, unless expressly provided It would not arise by implication, because so long as both parties are acting in harmony together, the practice is one which promotes and secures the true interests of all parties concerned. The dispute which has now occurred has disturbed this harmony and put an end to the peaceful relations which, until it arose, existed between the parties, and the dispute, having arisen out of a demand by the plaintiff which, although one he had a right to make, was also one which the defendants had an equal right to refuse to accede to, it would not be just or reasonable that either party should be allowed to obtain any advantage over the other as a consequence of arrangements which had been made and acted upon in good faith for the mutual benefit of both parties. And the respective rights and liabilities of both parties under the original contract of employ. ment and service ought in fairness to be unaffected in the future by any arrangements which have been made by mutual consent for giving effect to the contract, when those arrangements have been disturbed, and put an end to by the act of one of the parties. The defendants, as owners of the mill, are the principals, and in that character are responsible to all persons employed in their service in the business of the mill, subject to the existing rules and regulations, and that responsibility is fixed by law upon them whether the contract of service be made directly with them as principals, or through an agent duly authorized by them for the purposes of the mill. It is obvious the defendants as principals must employ agents, to whom certain limited powers and authorities are delegated, and for any acts done by such agents within the limits of their authority the defendants, as principals, are responsible, and the acts so done by their agents are as effectual as if done by the defendants themselves. Then, when the plaintiff engaged himself as spinner, and in order to enable him properly to perform his engagement, required the services of assistants, it became the duty of the defendants, arising out of their contract with the plaintiff, to supply him with such

His HONOUR held that the requirements of the Act had not been properly complied witb, and non-suited the plaintiff.

BURNLEY.

(Before W. T. S. DANIEL, Esq., Q. C., Jadge.)
May 18.- Varley v. Birley.

Sutcliffe, for the plaintiff; and Nowell, for the defendants.
His HONOUR delivered the following judgment :-
This action is brought to recover the sum of £1 78. 6d. for work and
labour done by the plaintiff for the defendants. The plaintiff was a spinner
in the employ of the defendants, who are the owners of a spinning mill at
Burnley. Up to the 15th of March last the plaintiff had been in their
employ for about eighteen months, and had been a spinner employed in
similar establishments for fourteen or fifteen years. Previous to the 15th
of March the plaintiff and the other spinners in the defendants' employ
twenty-two in number-desired to obtain from the defendants an advance of
wages and acted in concert together for that purpose, as they were entitled
to do. The defendants were not willing to give the required advance, ard in
consequence the plaintiff and the other spinners on the 15th of March gave the
defendants a proper notice in writing, in compliance with the rules of the mill,
that they would all leave the defendants' employment in seven days, expiring
on the 22nd of Marob, and on that day the plaintiff and the other spinners left,
and thus the contract of service between the plaintiff and the defendants was
duly and absolutely determined on that day. By the practice of the mill
the wages of the workmen are calculated and made up to and including the
Wednesday in each week, and are paid on the Saturday following. The
wages of the spinner are regulated by the quantity of work he can
produce from the frames under his management, and it is there-
fore the common interest of the spinner and his employer that
the quantity of work thus produced should be as large as possible.
The more the spinner can earn the better for the employer under
a normal state of things. The plaintiff was employed upon two frames or
mule, upon which there were 2,428 spindles, and in order to work these mules
properly, and so as to produce the largest quantity of good work-a result in
which he and the defendants were mutually interested-it was necessary that
the plaintiff should be provided with the assistance of at least two other work-
men, called a piecer and creeler, who, whilst the mules are in motion, must
be under the plaintiff's exclusive superintendence and control. For the com-
mon interest of the spinner and his employer it is obvious that these assistants
should be such as the spinner approves, and in whom he can have confidence.
And it has thus become the general practice for the spinner to select his assist-
ants, and further to agree with them for a fixed amount of weekly wages; and
the employer does not, as a rule, interfere either with the selection made by the
spinner or the amount of weekly wages to be paid, as it is as much for the

assistants, there not being any express contract between him and the de-
fendants that it should be his duty to provide them for himself, and at his own
risk, and on his own responsibility. When he is left by the defendants to
engage them he acts in so doing as the authorized agent of the defendants,
and thereby renders them responsible to the persons so engaged for the proper
fulfilment of the terms on which he engaged them, if not objected to or inter-
fered with by the defendants. They supply the plaintiff with the machinery,
the power required to keep it in motion, the raw material, and the services of
the assistants, as incident to the defendants' contract of employment with the
plaintiff, and be is entitled as against the defendants to claim the proper
supply of each and every one of these particulars. And as a consequence he, in
the absence of express contract, could no more claim as his own the right to
supply the services of the assistants than he could the supply of the
machinery, the power, or the raw material. The fact that the plaintiff as
spinner engages the assistants, agrees with them the amount of their wages,
receives those wages weekly from the defendants, and pays them directly to
the assistants without any actual interference on the part of the defendants,
does not, in my opinion, alter the legal character of the original relationship
between the parties arising out of the contract of employment and service.
These acts of the plaintiff are referable to his position of spinner acting
properly as the authorized agent of the defendants, for his and their mutual
interests. And, in my judgment, however long this practice may have existed,
and however general it may have become in similar establishments, the prac-
tice not having originated in any unlawful assumption of authority by the
spinner, or any neglect on the part of the employer in submitting to it, it is
not the case of a wrong converted into a right by usage and acquiescence,
however long or however general, and the defendants are not deprived of any
of their rights, nor relieved from any of their liabilities as prin-
cipals. Thus, if the spinner after he has received the wages of the
assistants should be dishonest and waste the money intrusted to him for
the purpose of paying those wages, I am of opinion that the assistants
would be entitled by law to look to the defendants for payment-as being
workmen of the defendants engaged by their authorized agent at wages
approved by them-and might treat the money paid by the defendants to the
spinner for their wages as money paid by the defendants to their agent to be
paid by him in that character to those assistants, and for which if not paid
by the plaintiff they would be entitled to look to the defendants. Again, if
either of the assistants should, without negligence on his part, sustain a
personal injury resulting from obedience to an order given by the spinner,
which it was the assistant's duty to obey, the assistant so injured would not
be left by law to obtain compensation from the spinner as his employer, but
would be entitled, under the Employers' Liability Act, 1880, to look to the
defendants for compensation, and to treat the spinner as a person intrusted
by the defendants with superintendence, and whose orders the assistant
injured, as a workman in the employ of the defendants, was bound to obey.
The claim set up by the plaintiff would have the effect of depriving workmen
of valuable rights against their employers which the law has secured to them,
and of involving liabilities from which, as it appears to me, employers if they
yielded to the claim now made by the spinner would not be allowed to escape,
thus showing that, rightly considered, the question raised in this contention is
quite as much a workman's question as an employer's, if not more. It would
not be difficult to suggest analogous cases of employment and service from
which, following out the grounds of the present claim, logically, the result
would be a reductio ad absurdum. Take, for instance, the case of the owner
of a large estate residing at a distance, employing an agent, who in his
employer's interest engages workmen under him as necessary for the proper
discharge of his duty, such as clerks in the estate office, labourers on a farm
in hand, whose wages he arranges and pays out of principal's money. A
dispute arises between the owner and his agent-the agent wants an increase
of salary, which the owner declines to give. The agent gives a proper notice
to determine the employment, which the owner accepts. And at the same
time the agent, without informing the owner, gives notice to the clerks
and labourers to leave their employment, and they leave accordingly.
The owner comes and finds the estate office closed, the clerks
gone, the labourers gone also. As a consequence the arrangements
as to tenants of the estate are unknown, and can only be ascertained by
inquiry and investigation, which, for want of explanation by the clerks,
the owner is unable to make. As to the farm, he finds it deserted, the
horses unfed, the cows not milked, the sheep without a shepherd, breaking
through fences and trespassing on the neighbours' crops, subjecting the owner
to action for damages. All these mischiefs, the consequence of the agent's
unwarrantable assumption of authority, and done to spite his principal,
because he could not increase the agent's salary. Again, take the case
owner of an extensive garden, who employs a head-gardener,
and intrusts him with the engagement of as many under-gardeners
as he requires, and leaving to him the arrangement of their work
and wages.
A dispute arises between the
and the head-
gardener about an increase of wages, and, to gain his ends, he gives notice
to his employer to leave his service, and, at the same time, behind his
employer's back, gives the under-gardeners notice to leave at the same time,
and they leave, and the employer, at the expiration of the head-gardener's
notice, comes and finds the gardens deserted, the daily and hourly attendance
to the fruit and flower houses neglected, the fruit irreparably injured, and the
plants and flowers spoiled. All this mischief is attributable to the unwarrant-
able acts of the agent, done to compel his employer to submit to his agent's
terms. Similar instances of abuse might be multiplied ad nauseam.
principle it appears to me that these supposed cases are the same as the claim
made in the present action, which is an attempt to convert an agent into a
principal by a perverse attempt to vary the terms of the original contract of
employment and service.

of an

owner

In

Judgment will therefore be entered in the action for the defendants with

costs.

If the plaintiff apply for leave to appeal by special case I grant that leave on his giving the proper and usual security for costs. I decline to give leave to appeal generally. My reason for giving only this conditional leave to appeal is principally that there will be no dispute of facts before the Court of Appeal a dispute which I believe sometimes leads to a miscarriage of justice.

OBITUARY.

SIR JOHN HOLKER.

The Right Hon. Sir John Holker, late one of the judges of the Court of Appeal, died on the 24th inst., at the age of fifty-four. Lord Justice Holker was the son of Mr. Samuel Holker, of Bury, Lancashire, and was born in 1828. He was educated at the Bury Grammar School. He was articled to the late Mr. Eastham, a solicitor at Kirkby Lonsdale, but at the end of his period of service he entered at Gray's-inn. He was called to the bar in 1854, when he joined the Northern Circuit, and for several years practised locally at Manchester with considerable success. He subsequently quitted Manchester for London, and in 1866 (when of only twelve years' standing) he was created a Queen's Counsel. He rapidly obtained a recognized position as one of the leaders of his circuit, and in 1872 he was elected M.P. for Preston, in the Conservative interest, and he retained this seat as long as he continued at the bar. In April, 1874, he was appointed Solicitor-General under Lord Beaconsfield's Government. He shortly afterwards received the honour of knighthood, and in November, 1875, he succeeded Sir Richard Baggallay as Attorney-General. He retired with his party in April, 1880. Sir J. Holker was an active law officer, and he carried the Summary Procedure Act, 1879, and the Public Prosecutors Act. He also introduced the Criminal Code Bill, which was referred to a Royal Commission, but was not passed. Although not a fluent or attractive speaker, Sir J. Holker was a sound lawyer, and a most able advocate. He was a formidable cross-examiner, and he enjoyed the reputation of a most successful verdict gainer. He had held briefs in many important cases, and among the criminal prosecutions which be conducted, Wainwright case, the Staunton case, and the great "detective case. He was a man of most kindly and modest disposition, and was greatly beloved by all his professional friends. Since his retirement from office he had enjoyed a very extensive private practice, and in January last, on the death of Sir Robert Lush, he was appointed by his political opponents a member of the to a seat in the Court of Appeal, and he was sworn Privy Council. The appointment was warmly approved by the profession, and he had already given a promise of achieving a high judicial repu tation. Sir J. Holker's health had been failing during the last few months, but it was hoped that the relief from professional work would have a beneficial effect. Last week he unfortunately caught a cold, which led to inflammation of the lungs, and he expired after a few days' illness. The deceased was a bencher of Gray's-inn, and was treasurer of that society in 1875. He had been twice married, but he leaves no family. On Wednesday morning, at the sitting of the Court of Appeal at Lincoln's-inn, the Master of the Rolls referred to the death of Lord Justice Holker. He said :-"I am very sorry to say that we have just received news of the death of our late colleague, Sir John Holker. I wish to express our deep sorrow at the event. His career as a judge was so short, and his health during that period so bad, that we can only say that the hopes of the successful prosecution of his career have been disappointed by the unfortunate break-down of his health so soon after his elevation to the bench."

MR. SAMUEL EDWARDS.

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Mr. Samuel Edwards, solicitor, of 11, Queen Victoria-street, and Lewisham, died at his residence, Sawtry Lodge, College-park, Lewisham on the 14th inst. Mr. Edwards was born in 1821. He was admitted a solicitor in 1850, and had practised for about thirty years at Lewisham, having also an office in the City of London. He had a large local business at Lewisham, and held some important appointments. Shortly after the passing of the Metropolitan Local Management Act, 1855, he was appointed clerk to the Lewisham District Board of Works, and he held the office for twenty-five years. He was also clerk to the Lewisham Board of Guardians, superintendent registrar, and vestry clerk of Lewisham parish. Mr. Edwards was buried at the Lewisham Cemetery on the 18th inst., several of the guardians and members of the vestry and district board being present at the funeral.

MR. EDWARD WOODARD.

Mr. Edward Woodard, solicitor, of 2, Ingram-court, Fenchurch-street, and Billericay, died on the 15th inst., from disease of the heart, after a few days' illness. Mr. Woodard was born in 1814, and was admitted a solicitor in 1842, and had an extensive practice both in the City and in Essex. He was clerk to the Billericay Town Hall Company and to Bayley's Charity Trustees, and for many years rendered valuable service as a guardian of the poor, and a member of the Billericay School Board. He had at one period a considerable county court practice, being a good speaker and a discreet advocate. He had also acted in several elections as local agent for the Liberal party. Mr. Woodard was a considerable landowner in Essex, and was well known as a successful agri

culturalist.

In consequence of the death of Sir John Holker, Mr. Justice Chitty has kindly undertaken to preside, in place of the late judge, at the fiftieth anniversary festival of the United Law Clerks' Society, which will take place at the Freemasons' Tavern, on Wednesday, June 7.

SOCIETIES.

LAW ASSOCIATION.

At the annual general court, held at the hall of the Incorporated Law Society, Chancery-lane, on Thursday, the 25th inst., the following being present-viz., Mr. Desborough (chairman), and Messrs. Boltor, Boodle, Burges, Collisson, Proudfoot, Tylee, Williamson, and A. B. Carpenter (secretary), the report of the directors and the treasurer's accounts for the past year were read and approved, the president and other officers of the association were elected, and the ordinary general business was transacted.

The following is the report of the board of directors.

1. Your directors have the pleasure of submitting to the members of the Law Association a report of their proceedings and the accounts for the last twelve months.

2. Your directors have considered thirty-three cases of the primary class, and have distributed amongst them the aggregate sum of £1,465.

3. They have also considered numerous applications of the secondary or nonmembers' class which have come before them, and they have distributed the sum of £150 placed at their disposal amongst sixteen cases.

4. Your directors recommend to the general court that a sum of £150 be placed at their disposal for the cases of non-members for the ensuing year.

5. Your directors have the pleasure to report that they have received towards the funds of the association donations of £10 10s. from the Honourable Society of Staple-inn; and £5 5s. from C. R. Rivington, Esq. They have also much pleasure in acknowledging the receipt of a legacy of £500 from the executors of Charles Richard Craddock, Esq., formerly of Gray's-inn-square.

6. The several investments now belonging to the association amount to £35,883 14. 11d.; on deposit at the London and Westminster Bank, £500. The dividends received last year amounted to £1,221 5s. 7d.

7. There are now 379 members of the association; 140 are life members and 239 are annual subscribers, the amount received from whom for the past year has been £471 98., which sum, added to the dividends received from the above investments, makes the income for the year £1,692 14s. 78.

8. Your directors report with regret the deaths of five members during the past year, viz :-Mr. John Murray, Mr. Frederic Ouvry, Mr. Henry Child, Mr. James Heather, and Mr. Charles Ford. During the same period eight new members have joined the association, three of whom are life members, and five are annual subscribers.

9. The names of above 4,000 solicitors appear in the Law List for 1882 as practising within the metropolitan district (where the operations of the society are carried on), but there are only 379 members of the association. Your directors feel that it only needs a little personal effort on the part of individual members in explaining the objects of the association, and in inviting professional friends and neighbours to become subscribers, to obtain a large addition to the list of members, and thus enable the directors to entertain more of the numerous applications made to them for assistance. 10. By the regulations of the association, the president, vice-president, treasurers, directors, and auditors for the ensuing year are to be elected at the present meeting.

11. Your directors, and many members of the association, are of opinion that the time has now arrived when it would be better, in every respect, that the offices of president and vice-president should be filled by members of their own branch of the profession. Accordingly, the board of directors have unanimously passed the following resolutions and bye-law-subject to the approval and confirmation of this court :-(a.) "That Laurence Desborough, Esq., be recommended at the next annual general court to fill up the vacancy in the office of president of the association caused by the death of Lord Hatherley." (b.) "That Edward Tylee, Esq., be recommended at the next annual general court as vice-president." (c.)" And that John Boodle, Esq., and Harry, Smith Styan, Esq., be recommended as treasurers of the association." Proposed bye-law :-(d.) "That the president and vice-president for the time being of the association be directors ex-officio.' The names of the above gentlemen are so well known to every member of the association that the directors confidently recommend them to be elected to fill the above offices.

99

LAW STUDENTS' JOURNAL.

UNITED LAW STUDENTS' SOCIETY.

At a meeting of this society, held at Clement's-inn Hall on Wednesday, May 17, Mr. F. O. Edlin in the chair, Mr. A. Lloyd moved, "That the aesthetic movement in art and literature has improved the national taste." The opener was supported by Messrs. Kains-Jackson and Standen, and opposed by Messrs. Williams, Spence, Broun, and Swepstone. Mr. Lloyd then replied, and the chairman put the motion to the meeting, which, upon a division, was lost by one vote.

LAW STUDENTS' DEBATING SOCIETY. Tuesday, May 28.-The society discussed the question, "That the House of Lords should be reformed by abolishing the present system of hereditary peerages," which Mr. T. B. Napier opened in the affirmative. Messrs. P. T. Rhys, Sargent, and H. Mossop supported the opener, and Messrs. Hutton, C. E. Barry, G. B. Ellis, Strickland, and Bower spoke in favour of the negative. After the opener bad replied, a division took place, which resulted in the sup. porters of the negative side having a majority of two votes.

BIRMINGHAM LAW STUDENTS' SOCIETY.

A meeting of this society was held in the Law Library on Tuesday last, Samuel Balden, Esq., in the chair. The subject for debate was, "Are the principles laid down in Ex parte Valpy and Chaplin (1872) and In re Native Iron Ore Company (1876) sound? Would those decisions be followed by the House of Lords?" The speakers on the affirmative were Messrs. Coley, Robinson, W. J. C. Hill, Aldington, Streetley, and Hyde; and, on the nega tive, Messrs. Whitaker, Stevens, F. W. White, and T. A. J. Brown. The debite was decided in favour of the affirmative.

LEGAL APPOINTMENTS.

Mr. ARTHUR HAILSTONE, solicitor, of Bradford, has been appointed a Co missioner to administer Oaths in the Supreme Court of Judicature.

Mr. DAVID ROBERT LEWIS, solicitor, of Merthyr Tydvil, Dowlais, and Aberdare, has been appointed Clerk to the County Magistrates at Merthyr Tydvil. Mr. Lewis was admitted a solicitor in 1869.

Mr. FREDERICK POLLOCK, barrister, has been appointed Professor of Jurisprudence at University College, London. Mr. Pollock is the eldest son of Sir Frederick Pollock, baronet, the Queen's Remembrancer, and he is a grandson of the late Lord Chief Baron Sir Frederick Pollock. He was born in 1845, and was educated at Eton. He was formerly fellow of Trinity College, Cambridge, where he graduated as second classic in 1867. He was called to the bar at Lincoln's-inu in Easter Term, 1871.

Mr. THOMAS PITT TASWELL LANGMEAD, barrister, has been appointed Professor of Constitutional Law and History at University College, London. Mr. Langmead is a B.C.L. of St. Mary's Hall, Oxford. He was called to the constitutional law at the Inns of Court. bar at Lincoln's-inn in Easter Term, 1863. He was for several years tutor in

Mr. WILLIAM NEILSON HANCOCK, LL.D., Q.C., of the Irish bar, has been appointed Clerk of the Crown and Hanaper in Ireland. Mr. JOHN MARSDEN, solicitor, of Wakefield, has been appointed a Magistrate for the West Riding of Yorkshire. Mr. Marsden was admitted a solicitor in 1830.

Mr. HENRY WHITE, solicitor, of Winchester, has been elected Coroner for the Winchester Division of Hampshire. Mr. White is coroner for the city of Winchester. He was admitted a solicitor in 1873, and is in partnership with Mr. Walter Bailey, town clerk of Winchester.

Mr. FRANCIS LAW LATHAM, barrister, has been appointed to officiate as a Judge of the High Court of Judicature at Bombay. Mr. Latham was formerly scholar of Brasenose College, Oxford, where he graduated first class in classics in 1860. He was called to the bar at the Inner Temple in Trinity Term, 1864.

Mr. JONES QUAIN PIGOT, barrister, has been appointed to officiate as Advocate-General at Bombay. Mr. Pigot is a graduate of Trinity College, Dublin. He was called to the bar at the Inner Temple in Michaelmas Term, 1864.

DISSOLUTIONS OF PARTNERSHIPS.

JOHN HERBERT SLATER and ERNEST WATTS (Kearsley, Slater, & Watts), solicitors, Manchester. May 13. The said Ernest Watts will in future continue to practise under the style or firm of Kearsley, Slater, & Watts, as aforesaid. [Gazette, May 19.] FREDERICK HICKSON, Petworth, solicitors. May 1. CHARLES JAMES DAINTREY, 75, Park-street, Grosvenor-square, and

WILLIAM EVANS, JAMES RICHARDSON HOLLIDAY, ARTHUR GODLEE, and JOSHUA ALFRED VARDY (Wragge, Evans, Holliday, & Co.), solicitors, Birmingham. May 11. So far as relates to the said Joshua Alfred Vardy.

Samuel Hadfield and Walter WILLIAMS (Hadfield & Williams), soli. citors, Manchester, Altrincham, and Bowdon. December 31, 1881. The said practice will be carried on by the said Walter Williams on his own account under the said style or firm of Hadfield & Williams.

GEORGE LEADBETER WINGATE and ERNEST AUGUSTUS JACKSON (Wingate & Jackson), solicitors, Angel-court, Throgmorton-street. May 12. The business will in future be carried on by George Leadbeter Wingate solely, at the offices aforesaid. [Gazette, May 23.]

COMPANIES.

WINDING-UP NOTICES. JOINT STOCK COMPANIES. LIMITED IN CHANCERY.

AMYLINE COMPANY, LIMITED.-Petition for winding up, presented May 17, directed to be heard before Chitty, J., on June 10. Foss and Legg, Abchurch lane, solicitors for petitioner AVONDALE PAPER COMPANY, LIMITED.-Petition for winding up, presented May 17, directed to be heard before Chitty, J., on June 10. White and Sons, Bedford row, solicitors for the petitioners

NINE REEFS GOLD MINING COMPANY, LIMITED.-Petition for winding up, presented May 18, directed to be heard before Chitty, J., on June 10. Greenfield and Abbott, Queen Victoria st, solicitors for the petitioner

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