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The plaintiff, Madame Philippe, a millinsr in Bond-street, London, durin the year 1884 supplied goods to the defendant, Mrs. Ricketts, to the value of £142. The efendant lived in Suffolk, and, on the 28th of March, 1895, the plaintifi wrote to the defendant in Suffolk, saying, “The favour of ac eque within a week will oblige.‘ The defendant, accordingly, on the 6|h of April, sent the plaintiff a cheque for the amount y goat. The cheque was an open one, payable to the ord_er _of the plainti . The cheque was stolen in the transit, and the plaintiff never received it, but the defendant's bankers paid it to the thief. In an action to recover the £142 for goods sold and delivered the defendant

leaded payment ; and Huddlestcn, 13., who tried the case without a_]ury, geld that the sending the cheque amounted to payment, and gave Judgment for the defendant. _

Tun Covnr or APPEAL afllrmed this decision. Lord Esi-isa,_ liI.R., said that the question was whether the plaintiffs letter was, in effect, a request to the defendant to send the money through the post. An express request was not necessary. The plaintiff in London wrote to the defendant in Sufiolk asking for a cheque. Did that letter lead the defendant to suppose, and did she suppose, that she might send the cheque by post? She could not be oxpecte to send a messenger with it orto come with it herself. Whatever the plaintiff intended by it, the only reasonable meaning to be attached to it was that she was invited to send the cheque by post. The defendant believed that she was so invited, and, therefore, the sting the letter with the cheque was payment. Lnannav and Lorss, L.J.l)3 concurred.—Coimssi., Addison, Q.C., and C’. E. E. Imlsin-1; Lumley Smith, Q.C., and Percy Gya. Soiiciroas, G. .13. B. Nomian,' G‘. S. Q H. .Brand|m.

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, Sir Richard Bulkeley accepted a bill of exchange for £2,000 dated the 19th of April, 1877, payable six months after date to the order of one Swindell. The bill accordingly fell due on the 22nd of October, 1877, when £1,800 of it was paid. On the 17th of October. 1883, Swindell issued a writ against Sir R. Bulkeley for the balance, £200, and interest, but this writ was never served, nor was any effort made to serve it. On the 27th of January, 1884, Sir R. Bulkeley died, and on the 21st of May, 1884, his will was proved. On the 9th of June Swindell sent in his claim to the executors, the resent defendants, but the claim was rejected, and on the 27th of November, 1884, he issued a new writ against them. The defendants pleaded the Statute of Limitations, the cause of action having accrued on the 2_2nd of October, 1877, and the action not having been commenced until the 27th of November, 1884. In May, 1885, Swindell died, and an order was made allowing Swindell's executors, the present plaintiffs, carry on the proceedings. Day, J ., who tried the case without a Jury, gave_ judgment for the plaintiffs on the authority of Om-lewis v. Lord Mormngton (5 W. R. 266, 7 E. & B. 283 ; in Exchequer Chamber, 6 W._ R. 682, 27 L. J . Q. B. 439), holding that, as Swindell had brought an action against Sir R. Bulkeley within the six years, and as Sir R. Bulkeley had died, Swindell could bring a new action against his executors within a reasonable time—that is, within one year from the probate of the will.

THE Covnr or Arrsm. afiirmed this decision. Lord ESHER, M.R., said that the courts, nearly 200 years ago, in the case of Kinsey v. Heyward (1 Ld. Raym. 432), had decided, by an equitable construction of section 4 of 21 Jac. 1, c. 16, that where a creditor commenced an action against his debtor within the six years, and then the debtor died, the plaintiff might commence a new action against the personal representatives within a reasonable time, and the claim would not be barred, though the second action was not commenced until after the six years had ela sed. Tl t

construction having been placed upon the section, it must bl: taken agaif that case were written into th '

_ e BQCHOD: That decision had been followed by the courts in many cases—6'urlewia v. Lord Mornington (supra); sZl¢'gi.\: v. .Darrel[ (7 \V. R. 694, 4 H. 8: N. 622; in Exchequer Chamber, 8 W. R. 653, 6 H. & N. 120). The courts could not now alter that old construction of the statute. I\or had the Common Law Procedure Act 1852 s 135 or ord. 17, r. 1 of the Rules of Court, 1883, which provided that an actiorl should not abate by the death of a party if the cauge of action survived taken away that construction, there being now two courses open—eitheito bring a new action or to continue the proceedings in the former action under ord. 17, r. 4. Further, the writ in the first action not havin been served made no difference, because by the issue of the writ the mifn was commenced. LXXDLBY, L J ., concurred. Lor-as L J also said that ghei: aptgctiop was commenced within the six yyearsqbut failed by thé

eat o e p aintiif, his re resentative ' within a reasonable time of Illld death aldldglig lfllmmence Q new “non

. _ ; d f d t d' d t plaintiff might commence a new action within a rfzasdnbllilgmtimdeof tlifi probate of the will or the grant of administration. This was an alternative

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This was an at prlrfe application for an order for the production, at the trial of an action in the Probate Division, of the original petition and other documents in a lunacy matter, which were at the Lunacy Oflloe.

Tun COL'1l'I‘(C0'1‘TON, Bowsx, and Fm", L.JJ.), following the precedent of Re Wood (12 W. R. 293, 4 De G. J. & S. 134). made an order that the pro r oflicer should attend at the trial with the documents, and that the applibants should be at liberty to inspect them at the Lunacy Oflics previously.—Couxssi., Bargmvs Deana. SOLICITORS, Prior, Oliuroli, 5' 6'0.

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This was an appeal from a decision of Bacon, V.C. (32 Ch. D. 477, 34 W. R. 430, 30 Soi.icirons' JOURNAL, 337), and an important question was raised with reference to the interpretation section (section 4) of the Bills of Sale Act, 1878, which provi es that the expression “bill of sale" shall include (inter alia) “inventories of goods with receipt thereto attached, or receipgs for purchase-moneys of goods, and other assurances of personal cha_tte , and also powers of attorney, authorities 0'1; hcences to take possession of personal chattels as security for any debt. In the present ca_se the B. Colliery Co. desired to raise £1,000, and they agreed to sell 100 railway wagons to the plaintiff company for £1,000, it being also agreed that the plaintiffs should let the wagons to the B. Co. on s hiring agreement. The hiring eement was dated the 18th of February, 1884, and by it the B. Co. agredgrto hire from the plaintiffs 100 railway coal wagons for three years, at a yearly rental of £372 10s., payable quarterly, and to deliver up the wagons at the end of the term unless purchased by them as thereinafter rovided; and it was agreed that, w eueve_r the rent should be in arrear faor seven days, it should be lawful for the plaiiitiifs immediately thereupon to distrain upon and seize the wagons ; thaiil if the tenants should not exercise the option of purchasinghat the end oft ethree years, or should art with t e possession of t e wagons without the plaintiffs’ consent,p or should suffer the plaintiffs’ nameplates tolbe remoylqd, or shoulddbecqme baiihrizpxt, the plaiiétilgdmtilggltt seize an remove ewa ous, an u an en o e agreemen ; . on payment of all the 811%“ pagablsl) for the three years according to the agreement, the tenants shoul have the option of purchasing the wagons at ls. per wagon. The wagons had originally belonged to the S. Wagon Co. to whom the B. Co. still owed £257 for the purchase of them. On the 19th of February the plaintiffs, at the request of the B. Co., posted a cheque for £257 to the S. Company, and also a che%:)o

or £743, the balance of the £1,000, to the B. Co. The B. hanliled to gm plaintiffs an invoice, dated the 18th of Februaryi tlxvqggd wit the p intiifs' name as debtors, “To 100 w ons, Nos. . £1,000; Creditor, February 19, by cheque payablfigto S. Wagon 09., £257—£743." The S. Co. sent to the plaintiffs a receipt for the £2a7. which was expressed to be “for redem tion of 100 wagons leased to the B. Co." The B. Co sent to the plaintifis a receipt for the £743, dated the 20th of February, as follows:—“Received of the North Central Wagon Co., .'cheque, {value £743, which is placed t0 Y0)" credit, with thanks." The B. Co. having made default in payment at the cguafterly payments of rent, the plaintiffs claimed the wagcplmfl

eir a so ute ro e . Nine of them ere in the ossession 0 8 defendant compgnylf vlrtgo claimed a lien onwthem for tolls under section 97 of ‘the RailwaystCli;usfis Act, 1845, and refused to deliver their}! up. excep on a men o t e tolls. s' ' b o ht thisacion W compel the defendants to deliver upqtllib lvavlagldiifs Tlieutdefendants raisfid the defence that the plaintiffs had no legal title to the wagons, because the above-stated documents constituted a bill of sale within the meallillfl of section 4 of the Act of 1878, and that they were void under section 9 °§ the Act °* 1332» 59 lwt being expressed in the statutory form. Bowl!» \_.C., held that the transaction was in substance a loan, and that the hiring agreement, the invoice, and the recei t together constituted a bill '3! 5519. which was void as not being in the statutory form' and 515° that the defendants were entitled to the lien which they claimed

Tnn Covlnr or Arraar. (Corrorr Bowiw and FRY L JJ.) reversed the decision_on the question arising lllldél‘ the Bills of, Sale Acts. Co'rr0-\‘» L.J , said that the hiring agreement could not of itself be a bill of sale. but it might be looked at in connection with the other documents to she" the nature of the transaction. The evidence shewed that on the 18th of Fel_’"1f"Y» a meeting took lace between the persons who yrepresented the P1511195 wmpany and tllose who represented the B. Co. and all agfeement was then made between the plaintiffs and the B. Co. for the purchase by the former of 100 wagons for £1 O00 and this agreemflli was afterwards recognized by the sending of the two bheques which made “P the £1,000. If this had stood alone there would have been a comlflem wlllifflct between the two companies for the sale and purchase of the Zlégplgsk There vans nothing to shew that the sending of the invoice W51 . 1_‘°“ P1609 911$, so that there shoul be n co act of sale withou :6‘; fi1“l:°t;”3Y P“'P°!'ted to be a contrgct of ;,Bl6ntrTl16 documents did

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was not necessary in o er that a document should be a bill of salfl

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equitable interest in them. But in his lordshi ’s o inion tgere was W. S. tn-in , dth b

under the circumstances, no bill df sale as betwegi thepplaiiitiifs and the the paiftt:iersh§p 3:1-ticlees 1i?:::H:!asl)g?1rl{tll.e(€0°$1lE({h8%.6a€1?.8 Islhsres Efughg B. Co. In order that either an invoice or a receipt should constitute retiring partners as they stood in September 1878 but F S and W S a bill of sale it must be “an assurance of ersonal chattels," unless it having, subsequently to the notice of retirement, acquired further shares

came within the subsequent words “ authoritigs or licences to take osses

e capital, it was held in the actions that S. was not bound to purchase

th sion of personal chattels " as to which there was no question pin the such further shares. Nothing was paid to F. S. and W S in respect of _ h . .

contract which effectually bound the two parties to the transaction, it for-med part of the assets of the business carried on by S. and L. S. In would have been an entirely diiferent matter. But the evidence shewed May, 1881, S. died, and actions were commenced for the administration

that there was a erfect contract for the purchase and sale of the wagons of his estate and also for the winding up of the firm of S. & Sons. In before either of these two documents was asked for. In Er parts Odell the partnership action the amounts due to F. S. and W. S. in res ect of

present case. If, without the invoice and the receipt, there had been no t e further shares, but the capital representing them remained in and e

(10 Ch. D. 76) and Exports Cooper (Ib., 313) the Court of Appeal came to their shares not included in the purchase by their father at the dhte oi the conclusion that without th documents which they held to be bills of their Igtiremgnt from the firm of g_ & sons was ascertained to be £4,500 in

sale, there would have been no transaction at all; and, in Woodgdla v.

Godfrey (5 Ex. D. 24), Thesiger, L J . who took art in the decision of Er

the case of F. S., and £7,200 in the case of W. S. The question was hether these sums carried interest from the date of the retirement oi

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decision in Er parts Cooper was “that, independently of the document
there was no sale of the goods.’ And Woodgota v. Godfrey itself decided
that, when there was a perfect transaction without the ocument, it could
not be held that it was a bill of sale within the Act. The Act only
invalidated bills of sale, and could not affect a title acquired antecedently
to the document which was in question. The same view was adopted by
the Court of Appeal in lfararlon v Meadows (7 Q. B. D. 80), and his lord-
ship adhered to the ppinion which he then expressed. It was unnecessary
to go int_o the question whether the transaction was one of loan. Bowsx,
L.J., said that the Act did not avoid transactions; it only avoided
documents as defined m it If, independently of the document, the
rights of the parties to it had been effectually altered or dealt with,
at law or m equity, the avoidance of the document could not afiect
that which stood prop:-io viyora independently of the document.
A long series of cases under the Act of 1854, before Coohrano v. illatlmos
(1_0 D. 80), had decided that receipts, commonly so-called, were not
withm the Act, on the ground that they were not “ assurances.” In the
three cases, Coohmne v. zlzathmui, E2: parts Odell, and E1 ports Cooper, the
courts seemed to have been im ressed with the danger of allowing the
Bills of Sale Act_to be, he would) not say evaded, but escaped from, in
cases more complicated than an ordinary sale of goods. But in all those
cases the ratio decidendi was that certain documents ought to be read
together, and that, when they were read together, they amounted to an
"assurance" of chattels. and that there was no transaction outside the
documents which afiected the rights of the parties at law or in equity or
an_i0un_ted to an "assurance." The Act of 1878 expressly mentioned
invoices"and "receipts." The draftsman seemed to have set about
mending the hole which was supposed to exist in the meshes of the law
in a most ineifioacious way. In order to sweep in “receipts” he put
them into the interpretation clause, before the words, “other assurances
of personal chattels" instead of er. If a “ receipt" was an “ assurance
of personal chattels,” it was struck at by the old Act, and, if it was not,
it was not struck at by the new Act. But the words of the Act must be
construed in the ordinary way, and it seemed to his lordship that, under
tlie Act of 1878, a "receipt" was not a “bill of sale," unless it was an
assurance of personal chattels,” or unless it could be brought within
the subsequent words as an “authority or licence to take possession of
chattelsas security for a debt." Far, L.J., said that he was unable to
agree with the view of Bacon, V.C., that the transaction in the present
case was a loan. He thought the true nature of the transaction was that
which was expressed in the documents, and no other. It was not neces-
my to_deci e whether section 9 of the Act of 1882 applied only to
filnsactions relatingto the repayment of money lent by the grantor to
um Emntee. Under the Bills of Sale Act of 1854 the inquiry always was
whether the instrument in question was, or was not, ‘ an assurance of
P61801181 chattels "—i.e., of either the le al title to, cranequitable interest
In, the chattels. The Act of 1854 and the later Acts were drawn on the
B51116 lines. The Legislature did not say that every transaction relating
§° {"17 interest in goods should reduced to writing and should be void
if It Wfifi not expressed in a particular form, but they confined themselves
t° dwhng With written documents. In all the cases which were decided
before the Act of 1878 was passed (except Cochnma v. rllalhews), it was
held that a receipt for purchase-money was not a bill of sale. Ea: pom
0""_” and Ez pm-to Cooper, though decided under the Act of 1854, were
decldfid after the passing of the Act of 1878. By that Act the Legislature
might have enacted that every receipt for the purchase-money of goods
should be a bill of sale, or they might have adopted the decision in
¢'"P/H_'1Ine v. llialliews. They toolr the latter course, and, by section 4,
Provided that, whcre a receipt for purchase-money was an assurance of
personal chattels, it should be within the scope of the Act; but otherwise
it should not be. The Act of 1878 had no wider sco e with regard to
receipts for purchase-money than the Act of 1854, though it made the
definition clearer,
Elle question whether the defendant company were entitled to the lien
°hWY claimed under section 97 of the Railways Clauses Act, 1845,
3*“ fidlolimed for further argument.—Coci<ssr., Rigby, Q.C., and Phipson
"'1'." Hm0015"’, Q-0. and 0. A. Busull. Sonicirons, Bidsdala Q Son ,-

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This was a0as_e raising the question as to the liability of continuing
rs to pay interest on the capital of retiring partners which has been

the business. It appeared that S. and his three sons, F. B., L. B.,

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that it should pass the legal title to goods; it was sufilcient it it assed an ‘ Sons. In September, 1879, the partnershi was dissolved by F. S. and

Bmyiold v. Loughborough (21 W. R. 88, 8 Ch. 1) that in taking the a counts of a partnership interest after the dissolution will not, in nersl, be allowed to the partners on their respective capitals. Such mg? however, was not applicable to the present case, which fell within the exceptions stated by Lord Selborne in his judgment. The sums were, in point of law, due in 1879 to the two retirin partners, and were, there

ore, improperly retained and used in the business. The result was that they were used for the purposes, not of the original partnership, but of a new partnership, and it was right that the new partnership should pay for their use. The claim was, therefore, 8.ll0WBd..—COUN5BL, Sir Horace Davey, Q.C., lfocnaghtm, Q.O., Whitehorse, Q.C., Rigby, Q.O., Romer, Q C., Maclean, Q.C., Seward Brice, Q.C., J. G. Lcinv, Ing/mm, and Christopher Jamar. SOLICITORS, J. J. Keily; Whites 5- Co. ,' Jame: Curtis; Van Sandau Q Co. ; Field, Roiooa, Q C0.


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In this caso a petition was presented by contribntories under the Companies Act, 1880, s. 7, sub-section 5, for the restoration of the company's name to the register of joint stock com anies. It appeared that the company was registered in 1875, and in Euly, 1885, was struck off the register, having failed to reply to notices sent by the registrar pursuant to section 7, sub-sections 1, 2, 3.

Ciiri-i-Y, J ., said that, at the date of the registrar’s striking the company ofi the register, he was of opinion that the company was carrying on business and in operation within section 7 of the Act. He should, therefore, make an order for_its restoration, upon the undertaking of the petitioners that the company make proper returns the registrar. The order would follow the form in Jfc Financial Corporation (Chadwyck Healey on the Law and Practice of Companies, 2nd ed-, p. 665).—Coiii~:ssi., F. B. .Palmor,- lngk Joyoo. Soniciroiis, Johnson 5- Wearhmill; Solicitor to the Board of Trade.

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The qiiestion in this case was whether the grandfather and grandmother of certain claimants to a fund were or were not married. It apeared that both the parties to the alleged marriage were dead. The grandylthfl‘, in 1881, made and duly executeda will, in which he described the claimants’ grandmother as his wife. He subsequently made_a draft will, which was never signed nor attested,_but was admitted to be m his handwriting. In this document he described the claimants‘ grandmother b_y her maiden name and as passing as his wife. It was objected that this document could not be received in evidence, the ground of the objection being that there was no instance of -i declaration being received as evidence in a pedigree case, if contained in a document which was incomplete for the purposes for which the document was made. _ CHITTY, J., said that, in questions of pedigree, any declarations by members of the family were admissible in evidence for what they were worth. The form of the evidence affected, not its admissibility, but_ its weight. It might be that the question now raised had never been raised before, but, ifthat were so, it was because no one had thought such a question could be usefully raised. However, in the Sims: Peerage can (ll C . & F. 35, at p. 98), an entr of the writer's marriage in a Prayer-book belonging to the writer was held to be admissible, although such entry was unsigned. He too held that the draft will in question in the present case was aiissifiie.-comm, Eustwiok ,- zzer/imam-:11. Souciron, W. H- Loom.

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m .
- 5-; carried on business in partnership under the style of S. & .

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nothing 0! the merits. All that he knew was that the shareholders "Id


creditors had appeared, as they had a right to do, in response to the statutory advertisements of the presentation of the petition. It was, therefore, wholly immaterial whether they appeared for the sake of supporting or for the sake of opposing the petition. Of that he knew nothing. The rule that there should be one set of costs only applied to cascs where the costs came out of the assets of the company.COUNSEL, Mncnagliten, Q.C. ; Romer, Q,.C. ; E. Ford; Gr-airenor Wovod-*;_ T/If Hon. R. C’. Groavenor; A. N. Cumminy; C’. C’. M. Dale, and G. 1. Millnr. Sohiciroiis, G. B. Batliursl N01-man ,' Ashui-st, Morris, Crisp, 4- Co ,' Markby, Stewart, Q U0. ,- Clarmvs Harcourt ; Jackson 5- Co.

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In this case a petition was presented by the governors of the Haberdasher’s Co. for payment out to them of £1,000 paid into court by a railway company for land belonging to the Haberdasher's Co. taken under the Lands Clauses Act, 1845. It appeared that the governors had expended £1,000 out of the income of their company in aid of the development of a building estate of which the lands taken iormed part. Such expenditure had been sanctioned by the Charity Commissioners as payment out of capital, but, whilst approving of the present petition, they declined to give any express assent, on the ground that the money was under the control of the court.

Cuirrr, J., said that under the circumstances he held that the etitioners were entitled to h

p _ ave the money paid out to them as persons “ absolutely entitled," and made the order as payed.—Counsri., Whitaker. Souciroa, 0. 0. T. Euyleton.

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- e ]ll iction of the Court of Chancery . . . to any stock . . . upon any trust it shall be lawful for the said court to make an order vesting the righ,t to transfer such stock . . . either in such person or persons so jointly entitled f 'd ' '

_ as a oresai , or in such last-mentioned person or persons together with any person or persons the said court may appoint." In the present case there were two trustees of a sum of stock. One of them absconded, nndwas, in 1881, adjudicated a bankrupt, and he had ever since remained abroad._ A new trustee was appointed in his place by the person who was entitled under the provisions of the trust deed to make the appointment, and the cestuis qua trustmt presented a petition, asking that the right to transfer the stock might be ordered to vest in the continuing trustee, in order that he might then transfer the stock into the joint names of liimself and the new trustee.

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' sets and the com an were allowed to reduce their paidiliiacglillglnlliy tbs: amlmnt of the deprleciation, they would be able, when the assets recovered their value, to divide the amount of the improvement among the shareholders as profit, and thus indirectly affect the rights of the creditors. The petition was ordered to stand over for a week,_aiid a further affidavit by the chairman was then produced, in which he said that fl valuation of the company's assets had been made for the purposes of their last report, and this valuation shewed that the sum of £22,878 had been lost a large part of which was attributable to depreciation of the value of Ithe company's patents, and since the date of that valuations further sum amounting to at least the balance of the £28,175, had been lost, or was linrepresented by available assets, owing to further depreciation in the value of some of the_company’s patents, by reason of the company being forced to discontinue the manufacture of incandescent lamps under those patents. _ _ _ _ _ _ _

Nonrii, J ., considered this evidence suflicient to Justify him 111 0011flrming the resolutlon,u:.hopg§i gm iaaid that he should have felt great difliculty in doing so wi on a evi enoe.

The company's counsel then asked that the use of the word “ reduced," as part of the name of the company, might be dispensed with. Non.-rs, J., directed that the word “reduced " should be used for one month. lie said that, though the court had power to dispense with the use of the word, it ought not to do so unless some good reason was sliewn.Covsssh, l\'a_m'¢r Higyins, Q.C., and Ruwion. Soiiclroas, Ihrkm-, Garrett, Q I’arlm'.

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The uesiion in this case was whether a piece of land, which a_testator had in his lifetime contracted by psrol to sell to P., was, after his death, to be treated as real estate, and therefore as passing uuderaresidnary devise, or was to be treated as converted into personal estate, by virtue of the testator's parol contract, though it was not a contract which could have been enforced by reason of the Statute of Frauds. The plaintifi was the residuary devisee and the administrator with the will annexed. After the testator's death the plaintiff sold and conveyed the plot of land in question to P. by a contract in writing, which provided t at the purchase-money was to be paid as follows—“ namely, the sum of £50 having been paid to the vendor s devisor by way of deposit on the 5th of itugufll» 1880, and the residue on the 12th of April next.” The question W" whether the plaintiff had adopted the testator’s contract, and there had, therefore, been a conversion in the testator's lifetime. In Frayne v. Taylor (12 W. R. 287), where an heir had adopted a parol contract for the W9 of land made by his ancestor, and in the conveyance by him there was a recital that he had adopted that contract, Kindersley, V.C., held i-hill there bad been a conversion of the land into personal estate during the intestate’: lifetime. _

Non-ri-i, J ., held that there was no evidence in the plaintiff's contract of any intention on his part to adopt the testator's parol contract. H_\s lordship thought that the plaintiff's contract was expressed exactly in the way it would have been if it had been intended that there should be a new contract, when no contract had been entered into before the test; itor‘s death. It was t-riie that there was a reference to the £s0 Pald to the testator as a deposit. But there was nothing on the face Of the contract to shew what deposit was paid, or what the purchase-mane! was, or, on the construction of the instrument, who the Dlirties wereHis lordship thought that, if it had been intended to carry out the old contract, it would have been referred to in a. different way. He tlwufllll that there was a new contract and a. conversion of the land into perflflnlilti only after the death of the testator.—0our~'sai., Comm-Hardy, Q.C-- ind Swinfen Eudy ,- Coolmm, Q,C., and Dauney ; Eva; Buckmoster. Bohiciroll-51 Field, Roscoe, if 00. ,' Kingaford, Dorman, Q (Jo. ; i$‘¢.uIby Q Faullmor.

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This case raised the question of the legal effect, as regards the liability of an executor, of a statement in a residuary account that a certain $11}! had been retained to pay an outstanding legacy, and of the MllI1l_B@l' bility of evidence to shew the incorrectness of the account inquestiom One G. died in April, 1863, having by his will bequeathed to the plaintiff, William Glover, after the death of his widow, 8 legacy of £500He appointed his wife, the plaintiif, W. Glover, and the defendant, James Prior, executrix and executors thereof. They all proved. W. Gl°'°' married the plaintiff, Fanny Glover, in 1869, on which occasion a settlement was execnted, dated June 15, 1869, by which the legacy of £500 W115 assigned to the defendant and the other plaintiff, Sidney Brewster, “P°“ trust to pay the income to Fanny Glover, with divers other firllilis °'°l" James Prior, the defendant, was a solicitor and was the acting 819°‘-Ml under the will, and acted for all arties in the preparation of the Heme‘ nient. The testator's widow die; in 1875, when tho legacy bscflme P*‘7' able; and on J uly 10, 1875 a residuary account of the testator’s estate

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pay the legacy. A declaration was claimed that the defendant was liable to pay the sum of £500, with interest thereon. It was urged for the plaintiff that there had been admissions on the part of the defendant such as to render him liable, and that, whether there had been a. mistake in the residuary account or not, he ought not to be allowed to explain it, and should be declared a trustee for the plaintifi. For the defendant it was urged that an admission of assets always is susceptible of explanation, and that evidence ought to be admitted to shew that an error had been made in the accounts.

KIKEWICR, J., said in this case one of the two trustees of the marriage settlement of June 15, 1869, together with one of the beneficiaries, sued the other trustee, who was the executor of the will of T. G., deceased. for £500, without asking for any account of the testator‘s estate. The case was put on the ground that the defendant was bound by an admission that he held the £500, and that, therefore, no account was necessary. The case was apparently based on an admission of assets The doctrine of admission of assets came to this, that the executor, having paid interest on a legacy or done other acts from which the reasonable and inevitable inference was that he had money sufiicient to pay the legacy, could not be heard io deny assets unless strong explanation was brought forward that he had not the money. It might be a matter of evidence or of inference, and where the executor could shew shat the whole case was not before the court and that the inference was not the true inference. he was allowed to bring forward evidence and his admission was susceptible of explanation. It would, however, require cogent evidence in this case to bring the court to the conclusion that a mistake had been made. Besides the original reaiduary account on the testator's death there had been a settlement, and the executor has aid interest as from an investment, and he had over and over again alluded to the legacy as paid. Therefore it would require very cogent evidence that there was a satisfactory explanation. The case went further than that: the residuary account was passed twice, ilie second time being on the death of the widow, uud the two surviving executors carried in a final residuary account, in which they stated :— “ Retained to pay outstanding 1egacies—to William Glover, £500." It was urged this was a mere statement of account, and that if the items were wrong there was no reason why the executor should be held liable ; the contention, in fact, was that the word “ re!m'm‘d" did not mean “retained” to meet any particular legacy. It would be very dangerous to allow executors to say this. The case of a s eciflc legacy in which the property passed on the executor’s assent had) been put as an illustration. If once the property passed in equity the executor could not get it back. When the executor says, " I have retained £500," it would be dangerous to allow him to go behind that and say otherwise. He could not be allowed to go behind it by giving evidence now; it was, in fact, a declaration of trust. [His lordship then adverted to the correspondence. coming to the conclusion that the other executor was not jointly liable] The defendant must pay the £500, with interest at £4 per cent-., and the costs of the action.—CouussL, Barber, Q.C., and Underhill; Wnrmingtan, Q 0., and W. D. Rawlins. Souci-roiis, Wainwright 4* Baillie, for Gould 4'» Elcook; J. Q W. Hands

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In' this case the local board of a district, since incorporated in the city of Manchester, served notices on the defendant and others, the owners of land adjoining a new street, under section 150 of the Public Health Act, 1875 ; which notices included certain work—-viz., a sewer- for which the owners could not properly be charged under that section. A summons against the defendant for the recovery of £650, the amount apportioned upon him, was dismissed by the magistrates, though it was not clear on what ground they decided. The local board then made a second apportionment, deducting the expense of the sewer, in which the amount charged to the defendant was £579. The plaintiffs brought this action under section 257, to establish a charge on the defendant's property for £579, or, in the altemative, for £650. Grantham, J ., nonsuited the plaintiffs on the ground that the matter had been decided by the magistrates, and that the local board had no werto make a second apportionment (30 s0l.l(T1'ORS' Jovnmin, 504). Thepflintifis appealed. It wasargued in support of the appeal, that the board had a right to make a second apportionment ; or, ii they had not, they could fallback on the first, and though as to that it was rnjmiimto, so far as the summary remedy was concerned, the plaintiffs were entitled to ask that the property be charged with the amount. On behalf of the defendant it was argued that the plaintiffs were not entitled to proceed by action after a summary proceeding had been dismissed. Section 257 only gave a charge where the owner was liable; and here it had been decided that the defendant was not liable. There was no power to make a second apportionment.

_ Tin Counr allowed the a peal, setting aside the nonsuit, and giving Judgment in favour of the pi)aintifis for a charge upon the premises for the sum of £5579. Hnnonssrox, B., said that the question whether the previous adjudication of the magistrates was a defence to the action depended on the i entity of the subject-matter of the demand. If the magistrates had decided on the ground that the street was a highway repairable by the inhabitants at large, Reg. v. Hulcbinya (27 W. R 724, 6 Q. B. D. 300) showed that they had gone beyond their jurisdiction. But even if the Efound of their decision was the irregularity in the apportionment, it would not operate as an estoppel to this action. It had been decided that a “"89 might be established under section 257, even although the local

authority had omitted to proceed to recover the expenses before the magistrates: Corporation of Sumierland v. Alene/~' (30 W. R. G55), Tatlm/mm Local Board v. Rowell (29 W. R. 36, 15 Ch. D. 378), Corporation of Birmingham v. Baker (17 Ch. D. 782). The corporation, after the decision of the magistrates,

had recognized that the apportionment was invalid, and directed a new apportionment, omitting the charge for the sewer. It was argued that this could not properly befdone, as new plans. sections, and estimates had not been deposited. But Cook v. Ipswich Board (19 W. R. 1079, 6 Q. B. 451) shewed that these matters were not conditions precedent. That case and Slumklin Local Board v. Jilillar (29 W. R. 63, 5 C. P. D. 272) and Wake v. Corporation of Shrfield (12 Q, B. D. 142), showed that the plaintiffs were justified in making the second apportionment. Marzisrr, J., said the substance of the case was that the original notice, though erroneous, was not void. The corporation might have proceeded for the smaller amount on the first apportionment. They had, however, treated that as void, and it was clear that they had power to make a second apportion

ment; and section 257 enacted that until recovery the amount should be a charge upon the premises. He differed however from Huddleston, B., in thinking that the provisions as to depositing plans, sections, and estimates were merely directory; they were conditions precedent.—0oimsrr., Am//rose, Q.C., and Heywood ,- Taylor, Q (J., and Sutton. Souciross,

R. Freer Austin, for Talbot, Manchester; Grrgory, Rowalhfn, Q Co.

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In this case the question arose whether the assignee of a judgment debt is entitled to a rnishee order. Pollock, B., at chambers, discharged the order min‘, hofiing that R. S. C., 1883, XLV., 1, did not apply to such a case, but only to that of a person who, in the words of the rule, has “ obtained " the judgment. The assignee of the debt appealed.

Tun Cornr (Hunmnsron, B., and M/iuisrv, J.), allowed the appeal. 1'I'.‘l)Dl.ES'1‘OY, B., said that it was necessary to read the Judicature Act, 1873, s. 25, sub-section 6, in connection with the rules. That section gave the same rights and remedies to the assignee of a debt as his msignor had, and the rules had been framed to carry out that provision. There was no necessity i.u the case of this order to construe the words strictly as if it were a penal enactment. Unless the right to issue gamishee proceedings belongedto the assignee of a judgment debt, the discovery in aid of execution to which he was undoubtedly entitled would be of little use, Mauisrr, J., concurred.-—Gouxss1., Dickens; A. T. Lowrance. Sonicflons Spyrr Q Son; I’. G. Robinson.

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This was an application for an interim injunction to restrain the defendant from taking possession or remaining in possession of a house and remises which he had mortgaged to the plaintiff. The mortgagor had become bankrupt, but had been allowed by the mortgagee to remain_ in possession. The mortgagee, being desirous of entering on the premises for the purpose of doing some repairs, gave notice to the mortgagor to vacate. The mortgagor refusing to do so, on the 22nd of September, 1886, the mortgagee, with nine other men, went to the premises, and, by the use of force, turned the mortgagor out of possession and removed the furniture. On the 29th of September, some builders engaged by the mortgagee having taken possession of the premises for the purpose of doing the repairs, the mortgagor effected an entrance and resumed possession. The mortgagee then brought this action for damages and an injunction. The plaintiff obtained an interim injunction ezparte; and Grantham, J., refused an application on the part of the defendant to dissolve it. The defendant obeyed the order of (_}rautham, J ., by going out of possession, and appealed. It was argued in support of the appeal that the plaintiff had made a forcible entry, and that there _was no precedent for granting an injunction to quiet a man in a possession obtained by an illegal act. The defendant was in rightful possession on the 22nd of September, if not by virtue of his owu title, at any rate by the leave and license of the plaintiff, and he ought to be allowed to retain possession till the tria of the action. At least, after the defendant had gone out of possession, the plaintiff was not entitled to the special remedy of an injurction. Edwin]: v. Howl-es (29 \V. R. 913, 18 Ch. D. 199) and Bnldall v. Jlaitlarid (29 W. R. 484, 17 Oh. D. 174) were referred to.

Tns Cons-r (Cars and Wraps, JJ.) dismissed the appeal. _The general rule was that where there was ii bomi/ids dispute the party in possession should be kept in possession till the dispute was settled by legal means; and if the other party sought to take possession by force he ought to be restrained. But here the defendant had no right whatever to be in possession and he could not and did not deny that the plaintiff was entitled to possession. All he could urge was that the plaintiff ought to have obtained possession by peaceable means, and that, as the plaintifi had now got all he sought for this ap lication ought to be dismissed B8 vexatious But if the court were to ifissolve the injunction lt would be encouraging the defendant to try to resume possession. And it would be monstrous to say that though he admitted he had no right to possessionand though he admittedly had given up po-session- 7" h° Wto be retained in ssession till the trial of the action. The order appealed from was fight and must be l1pi161d.—COUNBBL, Oswald; Clay. Souurous,

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