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No. 1, 15th December.
WAGGETT, Barrister-at-Law. Butterworths.

CARRIAGB-RAILWAY AND CANAL TRAFFIC Act, 1854 (17 & 18 Vict. c. 31),

s. 7.
At first sight the subject-matter of this treatise may appear to be
hardly sufficiently extensive to justify its being treated separately.

This was an action to recover damages for injuries to a dog whilst in Hitherto information on the subject has had to be derived from the the custody of the defendants from London tů Newcastle. The deable to spare for it. Now we bave before us a work of some seventy required by the defendants to be signed by all persons sending dogs, few pages which authors of works on patents generally have been fendants paid £2 into court. The plaintiff's servant, at the time of

delivering the dog to the defendants, signed a printed ticket in the form octavo pages, with a number of appendices, entirely devoted to the containing the following condition : “ Notice is hereby given that the subject of prolongation. We think that if this is an innovation it is company are not and will not be common carriers of dogs, nor will they a good one. The number of persons interested in the working of the receive dogs for conveyance, except on the terms that they shall not be patent law, whether as inventors, as patentees, as patent agents, or responsible for any amount of damages for the loss thereof, or for injury as patent lawyers, is rapidly increasing from year to year, and one thereto, beyond the sum of £2, unless a higher value be declared at the of the most important topics which can possibly have to be considered time of delivery to the company, and a percentage of £5 per cent. paid by them is the question whether an extension of the term of a patent upon the excess of value beyond the £2 so declared." The sum of 68., can or cannot be obtained. Moreover, this question stands on a

the ordinary rate of carriage for a dog from London to Newcastle, was distinctly different footing from any others arising out of the law of paid, and no declaration of value made. The dog was of the value of

£60. patents.

The dog was injured at Newcastle, before being delivered to the Ever since the first Act of Parliament by which provision was

owner, by a porter negligently running á loaded barrow over its tail. made for extension of the terms of patents

The judge of the Newcastle County Court held that the ticket did not

that of 1835 - the afford a bonâ fide option to send dogs at reasonable alternative rates; and application for extension has bad to be subunitted to a tribunal dis, that, even if there was such option, the charge of £5 per cent. on the tinct from those before which ordinary actions for infringement and excess of value over £2, irrespective of distance, was excessive; and on these other questions relating to patents have had to be brought; and, in grounds he held that the terms of the ticket were unreasonable and bad the course of the fifty years which have since elapsed, a whole system in law, and gave judgment for the plaintiff for £25. The Divisional of judicial committee practice and procedure has grown up. The Court having reversed this judgment (34 W. R. 457), the plaintiff object of the present treatise is to set forth this system of practice appealed. The Court of Appeal, having taken time to consider, now and procedure. It is written in a clear and attractive style; it gives delivered judgment, reversing the judgment of the Divisional Court. all the information which an inquirer can reasonably expect to find; railway companies were not common carriers of dogs; but that, under and we can have no doubt that it will be regarded as a very section 2 of the Railway and Canal Traffic Act, 1854, they were bound to acceptable, and withal inexpensive, addition to the already somewhat afford reasonable facilities for the receiving, forwarding, and delivery of long list of works on patents. The work is divided into seven chap- traffic (which included animals) upon their railways; and that, under ters, of which the first contains a general introduction to the subject, section 7, the companies might make reasonable conditions as to receiving, and those which follow deal with th case for extension, the petition, forwarding, and delivering animals. The condition here did not afford & the accounts, practice and costs, opposition, and the new grant and real alternative to the plaintiff sending the dog at his own risk beyond £2. conditions. Some useful forms are given in an appendix ; and we

The condition must be looked at with reference to the public generally, would draw special attention to the very valuable specimen set of and for all distances, and not with reference to this particular case only; accounts, which, if duly studied by intending applicants for exten- and, when so looked at, the charge appeared so exorbitant that no one sion, together with the excellent remarks on the same subject in would submit to it. The charge was altogether impracticable, and the con. the body of the work, may save them from falling into the insidious ment for the £25.-COUNSEL, J. Lawson Walton and A. 4. Baker ; Cyril pitfalls which have already proved fatal to so many. The table of cases contains a useful epitome of the date, subject, Nelson, Barr, $ Nelson.

Dodd. SOLICITORS, W. J. Tibley, for Dix g Warlow, Newcastle-upon-Tyne ;
and result of each application recorded, with a list of references,
which, however, does not appear in all cases to be quite complete. For
instance, the recent case of Re Brandon is cited only from the Patent

THE LVDUS.-C. A. No. 1., 14th December.
Office Reports. On the other hand, references are given to such

works as Iron and the Engineer, in which alone, inleed, some of the
cases are to be found. We are inclined to think that, for facility of Divorce, and Admiralty Division. It appeared that about midnight on

This was an appeal from a decision of the President of the Probate, reference, it would have been more convenient if the earlier statutes the 20th of June, 1884, the lightship Girdler was lying at anchor with and the Privy Council Rules had been placed in an appendix instead her lights in proper order in the Thames, when she was run down and of in the introduction, which need only bave contained a brief sunk by the steamship Indus. The Corporation of Trinity House, to whom summary of their provisions; but this may, perbaps, be regarded as the lightship belonged, brought an action against the owners of The a matter of taste, and, in any case, it does not interfere with the Indus for the collision, and the defence of compulsory pilotage was set value of the work, which must be considerable to all who have to deal up. The evidence shewed that the Indus was proceeding down stream

on the night in question and was under the directions of a Trinity House pilot. The lightship was duly reported, but The Indus kept on her course, heading straight for the lightship, until about half a mile from

her, when the pilot gave the order to put the helm hard-a-starboard. The CORRESPONDENCE.

master and second officer were called to prove that this order was

obeyed, but admitted that the vessel's course remained unchanged until THE LORDS' ACT (?)

it was on the point of colliding with The Girdler. It was also proved that

two of the crew had in the course of the same evening, while at the [To the Editor of the Solicitors' Journal.]

helm, not obeyed the pilot's orders, being ignorant and unable to steer. Sir.--In the case of Burton and others v. Issitt (5 B. & Ald. 267), The steering machinery of The Indus was apparently in perfect order, and mention is made of a note delivered to the defendant “for the pay

had never failed either before or since the accident. The look-out man ment of the sixpences under the Lords’ Act.” It appears that and the man who was actually steering at the time the collision took judgment had been previously obtained against the defendant, and place were not called. The learned president held that the plaintiffs he was in custody, and had obtained a rule nisi for his discharge, on

had failed to make out their case, and without saying whether be conthe ground of an informality in the note mentioned. The date of had failed to act, gave judgment for the defendants, with costs.

sidered the pilot in fault, or whether he thought the steering machinery the case is 1821. Can anyone tell me what Act is here referred to The Court (Lord Esher, M.R., LINDLEY and Lopes, L.JJ.), now reversed as “The Lords' Act?”


this decision and allowed the appeal. They said that the fact thata ship lying [The Act is apparently 32 Geo. 2, c. 28. See Statute Index, tit. at anchorand with the proper lights was run down by a ship in motion raised Lords' Act.- En. S. J.]

a primâ facie case of negligence against the latter. That case could be rebutted in two ways, either by shewing that the collision was brought cbout by inevitable accident, as for instance that some unforeseen acci.

dent had happened wh had prevented the machinery from acting On the 11th inst. Mr. Justice Stirling stated, that with reference to the properly, or by proving that the vessel was at the time under compulsory should adopt the rule which had been laid down and followed in other machinery, and, in order to set up the defence of compulsory pilotage, it settlement or other instrument under which the moneys were derived of a compulsory pilot, but that the orders given by him were obeyed, should be set out in inverted commas, so that the attention of the court They considered that the fact that the vessel's course was not altered might be drawn to them, and that this rule would take effect from the after the order to put the helm hard-a-starboard was given was concommencement of the Hilary Sittings.

clusive proof, in the absence of any evidence of defective machinery,

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that that order had not been obeyed. Therefore they considered the remedy to that provided by ord. 17, r. 4.–Counsel, Lumley Smith, Q.C., primâ facie case set up by the plaintiffs had not been met since the and Muir Mackenzie ; Channell, Q.C., and Jason Smith. Solicitors, Oliver defence of compulsory pilotage failed.-COUNSEL, Sir R. E. Webster, A.G., Richards; R. S. Taylor, Son, & Humbert. and Buoknill, Q.C. ; Sir Walter Phillimore, Q.C., and W. R. Kennedy, Q.O. SOLICITORS, Sandilands, Humphrey, s Armstrong; Thomas Cooper

Re SHEARWOOD-C. A. No. 2, 15th December, & Co.


This was an ex parte application for an order for the production, at the NORMAN AND ANOTHER v. RICKETTS-0. A. No. 1, 9th December. CONTRACT-DEBTOR AND CREDITOR_PAYMENT-Sending CHEQUE BY Post- trial of an action in the Probate Division, of the original petition and other

documents in a lunacy matter, which were at the Lunacy Office. AUTHORITY TO DO SO.

The Court (COTTON, Bowen, and Fry, L.JJ.), following the precedent The plaintiff, Madame Philippe, a milliner in Bond-street, London, of Re Wood (12 W. R. 293, 4 De G. J. & S. 134), made an order that the during the year 1884 supplied goods to the defendant, Mrs. Ricketts, to proper officer should attend at the trial with the doouments, and that the the value of £142. The defendant lived in Suffolk, and, on the 28th of applicants should be at liberty to inspect them at the Lunacy Office March, 1895, the plaintiff wrote to the defendant in Suffolk, saying, previously.-Counsel, Bargrave Deane. SOLICITORS, Prior, Churoh, & Co. The favour of a cheque within a week will oblige.” The defendant, accordingly, on the bih of April, sent the plaintiff a cheque for the THE NORTH CENTRAL WAGON CO. . THE MANCHESTER, amount by post. The cheque was an open one, payable to the order of

SHEFFIELD, AND LINCOLNSHIRE RAILWAY CO.-C. A. No. 2, the plaintiff. The cheque was stolen in the transit, and the plaintiff

15th December. 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 Bill of Sale-VALIDITY-HIRING AGREEMENT-Invoice-Receipt for Pur

CHASE-Moneys of Goons-Bills OF SALE Act, 1878, s. 4-BILLS OF pleaded payment; and Huddleston, B., who tried the case without a jury, held that the sending the cheque amounted to payment, and gave judg

Sale Act, 1882, s. 7. ment for the defendant.

This was an appeal from a decision of Bacon, V.C. (32 Ch. D, 477, 34 THE COURT OF APPEAL affirmed this decision. Lord Eszer, M.R., said W. R. 430, 30 SOLICITORS' Journal, 337), and an important question was that the question was whether the plaintiff's letter was, in effect, a raised with reference to the interpretation section (section 4) of the Bills request to the defendant to send the money through the post. An express of Sale Act, 1878, which provides that the expression “bill of sale" request was not necessary. The plaintiff in London wrote to the defend. shall include (inter alia) inventories of goods with receipt thereto ant in Suffolk asking for a cheque. Did that letter lead the defendant to attached, or receipts for purchase-moneys of goods, and other assurances suppose, and did she suppose, that she might send the cheque by post? of personal chattels, and also powers of attorney, authorities or licences She could not be expected to send a messenger with it or to come with to take possession of personal chattels as security for any debt.” In the it herself. Whatever the plaintiff intended by it, the only reasonable present case the B. Colliery Co. desired to raise £1,000, and they agreed to meaning to be attached to it was that she was invited to send the cheque sell 100 railway wagons to the plaintiff company for £1,000, it being also by post. The defendant believed that she was so invited, and, therefore, agreed that the plaintiffs should let the wagons to the B. Co. on a the posting the letter with the cheque was payment. _ LINDLEY and Lopes, hiring agreement. The hiring agreement was dated the 18th of February, L.JJ., concurred.—COUNSEL, Addison, Q.C., and C. E. E. Jenkins ; Lumley 1884, and by it the B. Co. agreed to hire from the plaintiffs 100 railway Smith, Q.C., and Percy Gye. SOLICITORS, G. B. B. Norman ; G. S. $ H. coal wagons for three years, at a yearly rental of £372 10s., payable quarBrandon.

terly, and to deliver up the wagons at the end of the term unless pur.

chased by them as thereinafter provided ; and it was agreed that, when. SWINDELL AND ANOTHER v. BULKELEY AND ANOTHER— ever the rent should be in arrear for seven days, it should be lawful for the C. A. No. 1, 9th December.

plaintiffs immediately thereupon to distrain upon and seize the wagons ; STATUTE OF LIMITATIONS (21 JAc. 1, c. 16), ss. 3, 4—ACTION of Debt- that if the tenants should not exercise the option of purchasing at the end ACTION COMMENCED WITHIN Sıx YEARS-DEATH OF DEFENDANT AFTER

of the three years, or should part with the possession of the wagons THE SIX YEARS-RIGHT OF PLAINTIFF TO COMMENCE A New ACTION.

without the plaintiffs' consent, or should suffer the plaintiffs' name.

plates to be removed, or should become bankrupt, the plaintiffs might Sir Richard Bulkeley accepted a bill of exchange for £2,000 dated seize and remove the wagons, and put an end to the agreement; and that, the 19th of April, 1877, payable six months after date to the order on payment of all the sums payable for the three years according to the of one Swindell. The bill accordingly fell due on the 22nd of October, agreement, the tenants should have the option of purchasing the wagons 1877, when £1,800 of it was paid. On the 17th of October, 1883, Swindell at 1s. per wagon. The wagons had originally belonged to the S. Wagon issued a writ against Sir R. Bulkeley for the balance, £200, and interest, Co. to whom the B. Co. still owed £257 for the purchase of them. but this writ was never served, nor was any effort made to serve it. On On the 19th of February the plaintiffs, at the request of the B. Co., the 27th of January, 1884, Sir R. Bulkeley died, and on the 21st of May, posted a cheque for £257 to the S. Company, and also a cheque 1884, his will was proved. On the 9th of June Swindell sent in his claim for £743, the balance of the £1,000, to the B. Co. The B. Co. to the executors, the present defendants, but the claim was rejected, and handed to the plaintiffs an invoice, dated the 18th of February, headed on the 27th of November, 1884, he issued a new writ against them. The with the plaintiffsname as debtors, “Tu 100 wagons, Nos. 1 to 100, defendants pleaded the Statute of Limitations, the cause of action having £1,000; Creditor, February 19, by cheque payable to s. Wagon Co., accrued on the 22nd of October, 1877, and the action not having been £257— £743." commenced until the 27th of November, 1884. In May, 1885, Swindell which was expressed to be “for redemption of 100 wagons leased to

The S. Co. sent to the plaintiffs a receipt for the £257, died, and an order was made allowing Swindell's executors, the present the B. Co." The B. Co sent to the plaintiffs a receipt for the $743, plaintiffs, to carry on the proceedings. Day, J., who tried the case dated the 20th of February, as follows:-“Received of the North without a jury, gave judgment for the plaintiffs on the authority of Central Wagon Co., .cheque, value £743, which is placed to your Curlewis v. Lord Mornington (5 W. R. 266, 7 E. & B. 283 ; in Exchequer credit, with thanks. Chamber, 6 W. R. 682, 27 L. J. Q. B. 439), holding that, as Swindell had

The B. Co. having made default in payment brought an action against Sir R. Bulkeley within the six years, and as Sir their absolute property. Nine of them were in the possession of the

of the quarterly paymente of rent, the plaintiffs claimed the wagons as R. Bulkeley had died, Swindell could bring a new action against his defendant company, who claimed a lien on them for toils under section executors within a reasonable time—that is, within one year from the 97 of the Railways Clauses Act, 1845, and refused to deliver them up, probate of the will. The Court of Appeal affirmed this decision. Lord Esher, M.R., said compel the defendants to deliver up the wagons. The defendants raised

except on payment of the tolls. The plaintiffs brought this action to that the courts, nearly 200 years ago, in the case of Kinsey v. Heyward (1 the defence that the plaintiffs had no legal title to the wagons, because Ld. Raym. 432), had decided, by an equitable construction of section 4 of the above-stated documents constituted a bill of sale within the meaning 21 Jac. 1, c. 16, that where a creditor commenced an action against his of section 4 of the Act of 1878, and that they were void under section 9 debtor within the six years, and then the debtor died, the plaintiff might of the Act of 1882, as not being expressed in the statutory form. Bacon, commence a new action against the personal representatives within a v.o., held that the transaction was in substance a loan, and that the reasonable time, and the claim would not be barred, though the second hiring agreement, the invoice, and the receipt together constituted a bill action was not commenced until after the six years had elapsed. That of sale, which was void as not being in the statutory form ; and also construction having been placed upon the section, it must be taken as if that the defendants were entitled to the lien which they claimed. that case were written into the section. That decision had been followed by the courts in many cases - Curlewis y. Lord Mornington (supra); Surgis decision on the question arising under the Bills of Sale Acts. COTTON,

The Court of APPEAL (Cotton, Bowen, and Fry, L JJ.) reversed the v. Darrell (7 W. R. 694, 4 H. & N. 622 ; in Exchequer Chamber, 8 W. R. L.J., said that the hiring agreement could not of itself be a bill of sale, 653, 6 H. & N. 120). The courts could not now alter that old construction but it might be looked at in connection with the other documents to shew of the statute. Nor had the Common Law Procedure Act, 1852, s. 135, the nature of the transaction. or ord. 17, 1. 1 of the Rules of Court, 1883, which provided that an action February, a meeting took place between the persons who represented the

The evidence shewed that, on the 18th of taken away that construction, there being now two courses open-either agreement was then made between the plaintiffs and the B. Co. for to 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 having been

the purchase by the former of 100 wagons for £1,000, and this agreement served made no difference, because by the issue of the writ the action was up the £1,000. If this had stood alone, there would have been a complete

was afterwards recognized by the sending of the two cheques which made commenced. Lindley, LJ., concurred. Lopes, L.J., also said that, contract between the two companies for the sale and purchase of the where an action was commenced within the six years, but failed by the wagons. There was nothing to shew that the sending of the invoice was death of the plaintiff, his representative might corimence a new action within a reasonable time of his death ; and, if the defendant died, the it. It in no way purported to be a contract of sale. The documents did

a condition precedent, so that there should be no contract of sale without plaintiff might commence a new action within a reasonable time of the not, as a matter of construction, purport to be a contract of purchase and probate of the will or the grant of administration. This was an alternative sale. It was not necessary in order that a document should be a bill of sale

Smith, QC


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125 that it should pass the legal title to goods; it was sufficient if it passed an Sons. In September, 1879, the partnership was dissolved by F. S. and equitable interest in them. But, in his lordship's opinion, there was, W. S. retiring, and the business was carried on by S. and L. S. Uuder under the circumstances, no bill of sale as between the plaintiffs and the the partnership articles S. became bound to purchase the shares of the 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 personal chattels," unless it having, subsequently to the notice of retirement, acquired further shares in came within the subsequent words "authorities or licences to take posses- the capital, it was held in the actions that S. was not bound to purchase sion of personal chattels,” as to which there was no question in the such further shares. Nothing was paid to F. S. and W. 8. in respect of present case. If, without the invoice and the receipt, there had been no the further shares, but the capital representing them remained in and contract which effectually bound the two parties to the transaction, it formed part of the assets of the business carried on by S. and L. S. In would have been an entirely different matter. But the evidence shewed May, 1881, S. died, and actions were commenced for the administration that there was a perfect 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 Ex parte Odell the partnership action the amounts due to F. S. and W. S. in respect of (10 Ch. D. 76) and Ex parte Cooper (Ib., 313) the Court of Appeal came to their shares not included in the purchase by their father at the date of the conclusion that, without the documents which they held to be bills of their retirement from the firm of S. & Sons was ascertained to be £4,500 in sale, there would have been no transaction at all; and, in Woodgate v. the case of F. S., and £7,200 in the case of W. S. The question was Godfrey (5 Ex. D. 24), Thesiger, L.J., who took part in the decision of Ex whether these sums carried interest from the date of the retirement of parte Cooper, explained that this was the ground of that decision. And, F. S. and w. s. in Woodgate v. Godfrey, Jessel, M.R., said that the principle of the CHITTY, J., said that the rule was laid down by Lord Selborne in decision in Ex parte Cooper was “that, independently of the document, Barfield v. Loughborough (21 W. R. 86, 8 Ch. .1) that in taking the there was no sale of the goods.” And Woodgate v. Godfrey itself decided accounts of a partnership interest after the dissolution will not, in general, that, when there was a perfect transaction without the document, it could be allowed to the partners on their respective capitals. Such rule, how. not be held that it was a bill of sale within the Act. The Act only ever, was not applicable to the present case, which fell within the invalidated bills of sale, and could not affect a title acquired antecedently exceptions stated by Lord Selborne in his judgment. The sums were, in to the document which was in question. The same view was adopted by point of law, due in 1879 to the two retiring partners, and were, there. the Court of Appeal in Marsden 7. Meadows (7 6. B. D. 80), and his lord- fore, improperly retained and used in the business. The result was that ship adhered to the opinion which he then expressed. It was innecessary they were used for the purposes, not of the original partnership, but of to go into the question whether the transaction was one of loan. Bowen, a new partnership, and it was right that the new partnership should pay L.J., said that the Act did not avoid transactions ; it only avoided for their use. The claim was, therefore, allowed.-COUNSEL, Sir Horace documents as defined in it. If, independently of the document, the Davey, Q.C., Macnaghten, Q.C., Whitehorne, Q.O., Rigby, Q.O., Romer, rights of the parties to it had been effectually altered or dealt with, Q.C., Maclean, Q.O., Seward Brice, Q.C., J. G. Laing, Ingham, and Chris. at law or in equity, the avoidance of the document could not affect topher Jamos. SOLICITORS, J. J. Keily; Whites f Ço.; James Curtis ; Van that which stood proprio vigore independently of the document. Sandau & Co.; Field, Ros006, & Co. A long series of cases under the Act of 1854, before Cochrane v. Mathews (10 Ch. D. 80), had decided that receipts, commonly so-called, were not within the Act, on the ground that they were not " assurances.' In the

Re THE HOLLINGWOOD ESTATE 00. (LIM.)-Chitty, J., 15th

December. three cases, Cochrane v. Mathews, Ex parte Odell, and Ex parte Cooper, the courts seemed to have been impressed with the danger of allowing the COMPANIES Act, 1880, s. 7—COMPANY STRUCK OFF REGISTER A8 DEFUNCTBills of Sale Act to be, he would not say evaded, but escaped from, in

RESTORATION ORDER. cases more complicated than an ordinary sale of goods. But in all those

In this caso a petition was presented by contributories uuder the Com. cases the ratio decidendi was that certain documents ought to be read panies Act, 1880, s. 7, sub-section 5, for the restoration of the company's together, and that, when they were read together, they amounted to an

name to the register of joint stock companies. It appeared that the assurance” of chattels, and that there was no transaction outside the company was registered in 1875, and in July, 1885, was struck off the documents which affected the rights of the parties at law or in equity or register, having failed to reply to notices sent by the registrar pursuant amounted to an assurance. The Act of 1878 expressly mentioned to section 7, sub-sections 1, 2, 3. "invoices" and "receipts." The draftsman seemed to have set about CHITTY, J., said that, at the date of the registrar's striking the company mending the hole which was supposed to exist in the meshes of the law off the register, he was of opinion that the company was carrying on in a most inefficacious way. In order to sweep in " receipts ” he put business and in operation within section 7 of the act. He should, there, them into the interpretation clause, before the words, “other assurances fore, make an order for its restoration, upon the undertaking of the of personal chattels'' instead of after. If a "receipt” was an “assurance petitioners that the company make proper returns to the registrar. The of personal chattels," it was struck at by the old Act, and, if it was not, I order would follow the form in Re Financial Corporation (Chadwyck Healey it was not struck at by the new Act. But the words of the Act must be on the Law and Practice of Companies, 2nd ed., p. 665). --COUNSEL, construed in the ordinary way, and it seemed to his lordship that, under F. B. Palmer ; Ingle Joyce. SOLICITORS, Johnson & Weatherall ; Solicitor to the Act of 1878, a "receipt" was not a “bill of sale," unless it was an the Board of Trade.

assurance of personal chattels," or unless it could be brought within the subsequent words as an "authority or licence to take possession of chattels as security for a debt.'

Re LAMBERT (DECEASED)-Chitty, J., 14th December. Fry, L.J., said that he was unable to agree with the view of Bacon, V.C., that the transaction in the present EvIDENCE-ADMISSIBILITY - PEDIGREE CASE — DECLARATION IN UNSIGNED case was a loan. He thought the true nature of the transaction was that

DoctMENT. which was expressed in the documents, and no other. It was not neces The question in this case was whether the grandfather and grandsary to decide whether section 9 of the Act of 1882 applied only to mother of certain claimants to a fund were or were not married. It ap. transactions relating to the repayment of money lent by the grantor to peared that both the parties to the alleged marriage were dead. The grand. the grantee. Under the Bills of Sale Act of 1854 the inquiry always was father, iv 1881, made and duly executed a will, in which he described the whether the instrument in question was, or was not, "an assurance of claimants' grandmother as his wife. He subsequently made a draft will, personal chattels"--i.e., of either the legal title to, or an equitable interest which was never signed nor attested, but was admitted to be in his handin, the chattels. The Act of 1854 and the later Acts were drawn on the writing. In this document he described the claimants' grandmother by same lines. The Legislature did not say that every transaction relating her maiden name and as passing as his wife. It was objected that this to any interest in goods should be reluced to writing and should be void document could not be received in evidence, the ground of the objection before the Act of 1878 was passed (except Cochrane v. Mathews), it was for the purposes for which the document was made. bet otel ing with written documents. In a11 the cases which selbene being that there was no instance of declaration being received "As cevia

dence in a pedigree case, if contained in a document which was incomplete held that a receipt for purchase-money was not a bill of sale. Ex parte CHITTY, J., said that, in questions of pedigree, any declarations by

members of the family were admissible in evidence for what they were worth.
decided after the passing of the Act of 1878. By that Act the Legislature The form of the evidence affected, not its admissibility, but its weight.
might have enacted that every receipt for the purchase-money of goods It might be that the question now raised had never been raised before,
Cochrane . Mathews. They took the latter course, and, by section 4, could be usefully raised. However, in the Sussex Peerage case (11 ct. & F.
provided that, where a receipt for purchase-money was an assurance of 85, at p. 98), an entry of the writer's marriage in a Prayer-book belonging
personal chattels, it should be within the scope of tắe Act; but otherwise to the writer was held to be admissible, although such entry was unsigned.
receipts for purchase-money than the Act of 1854, though it made the admissible.-COUNSEL, Eastwiok ; Richard Nevill. SOLICITOR, W. H. Lammin.
definition clearer.
which they claimed under section 9900f the Railways entitled toch ein R. THE NORTH BRAZILIAN SUGAR FACTORIES (LIM.) –

Chitty, J., 14th December.
Bcale Henn Collins, Q.O., and C. A. Russell. SOLICITORS, Ridsdale & Son; COMPANY-WINDING UP-Dismissal of PETITION ON APPLICATION OF
Cunliffes & Davenport.

KEILY v. STEVENS-Chitty, J., 13th December.

In this case a shareholder, having presented a petition for winding up

the company, applied at the hearing for an order that the petition be PARTNERSHIP_INTEREST AFTER DISSOLUTION.

dismissed, with costs. Shareholders who appeared separately asked for This was a case raising the question as to the liability of continuing separate sets of costs, and creditors appearing separately also asked partners to pay interest on the capital of retiring partners which has been for separate sets of costs. and W. s., carried on business in partnerships under the style of s. . nothing of the merits. "Ali that he knew was that the shareholders and

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creditors had appeared, as they had a right to do, in response to the of a company's assets, and the company were allowed to reduce their paid. statutory advertisements of the presentation of the petition. It was, up capital by the amount of the depreciation, they would be able, when therefore, wholly immaterial whether they appeared for the sake of the assets recovered their value, to divide the amount of the improvement supporting or for the sake of opposing the petition. Of that he knew among the shareholders as profit, and thus indirectly affect the rights of nothing. The rule that there should be one set of costs only applied the creditors. The petition was ordered to stand over for a week, and a to cases where the costs came out of the assets of the company. further affidavit by the chairman was then produced, in which he said that Counsel, Macnaghten, Q.C. ; Romer, Q.C.; E. Ford; Grosvenor Woods ; The a valuation of the company's assets had been made for the purposes of Hon. R. C. Grosvenor; A. N. Cumming ; C. C. M. Dale, and G. T. Millar. their last report, and this valuation shewed that the sum of £22,878 had SOLICITORS, G. B. Bathurst Norman ; Ashurst, Morris, Crisp, & Co; Markby, been lost, a large part of which was attributable to depreciation of the Stewart, Co.; Clarence Harcourt; Jackson g Co.

value of the company's patents, and since the date of that valuation a

further sum, amounting to at least the balance of the £28,175, had been SHEPHEARD «. SMITH-Chitty, J., 10th December. lost, or was unrepresented by available assets, owing to further deprecia.

tion in the value of some of the company's patents, by reason of the PRACTICE-FORECLOSURE ABSOLUTE-DISCHARGE OF Receiver. In this case the plaintiffs moved for foreclosure absolute and discharge company being forced to discontinue the manufacture of incandescent

lamps under those patents. of a receiver of the mortgaged property without passing his accounts.

NORTH, J., considered this evidence sufficient to justify him in con It appeared that the receiver was one of the plaintiffs, and had been firming the resolution, though he said that he should have felt great appointed by consent of the plaintiffs and defendant, and without salary difficulty in doing so without that evidence. or remuneration, and that he had received some £464 from the property

The company's counsel then asked that the use of the word "reduced," and expended on it some £600, leaving a balance due to him.

as part of the name of the company, might be dispensed with. North, J., CHITTY, J., made an order as asked. --Counsel, W. E. Lemon. Solici- directed that the word "reduced should be used for one month. He TORS, Shepheards.

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 shewn.Ex parte THE HABERDASHER'S CO.- Chitty, J., 11th December.

Counsel, Napier Higgins, Q.C., and Rawson. SOLICITORS, Parker, Garrett, PRACTICE-PAYMENT OUT-LANDS CLAUSES Act, 1845— Persons ABSOLUTELY $ Parker.

ENTITLED. In this case a petition was presented by the governors of the Haber Re HARRISON, PARRY v. SPENCER-North, J., 9th December. dasher's Co. for payment out to them of £1,000 paid into court by a Real Estate-CONVERSION CONTRACT FOR SALE OF LAND BY TESTATOR IN railway company for land belonging to the Haberdasher's Co. taken under

HIS LIFETIME-ADOPTION BY RESIDUARY DEVISEE AFTER TEstator's the Lands Clauses Act, 1845. It appeared that the governors had ex. Death. pended £1,000 out of the income of their company in aid of the development of a building estate of which the lands taken formed part. Such expendi.

The question in this case was whether a piece of land, which a testator ture had been sanctioned by the Charity Commissioners as payment out had in his lifetime contracted by parol to sell to P., was, after his death, of capital, but, whilst approving of the present petition, they declined to to be treated as real estate, and therefore as passing under a residuary give any express assent, on the ground that the money was under the devise, or was to be treated as converted into personal estate, by virtue control of the court.

of the testator's parol contract, though it was not a contract which could CHITTY, J., said that under the circumstances he held that the have been enforced by reason of the Statute of Frauds. The plaintiff petitioners were entitled to have the money paid out to them as persons

was the residuary devisee and the administrator with the will annexed. "absolutely entitled," and made the order as payed.-COUNSEL, After the testator's death the plaintiff sold and conveyed the plot of land Whitaker. SOLICITOR, 0. C. T. Eagleton.

in question to P. by a contract in writing, which provided that the pur.

chase-money was to be paid as follows—" namely, the sum of $50 having Re BLAINE'S TRUST-North, J., 11th December.

been paid to the vendor's devisor by way of deposit on the 5th of August, Trustee of Srock Out of JURISDICTION—Vesting Right to Transfer, whether the plaintiff had adopted the testator's contract, and there had,

1880, and the residue on the 12th of April next.” The question was “ PERSON WHOM COURT MAY APPOINT "-TRUSTEE Act, 1850, s. 22. therefore, been a conversion in the testator's lifetime. In Frayne v. Taylor In this case a question arose as to the construction of section 22 of the (12 W. R. 287), where an heir had adopted a parol contract for the sale Trustee Act, 1850, which provides that, "when any person or persons of land made by his ancestor, and in the conveyance by him there was shall be jointly entitled with any person out of the jurisdiction of the recital that he had adopted that contract, Kindersley, V.C., held that Court of Chancery

to any stock shall be lawful for the said court to make an order vesting the right to

upon any trust, it there bad been a conversion of the land into personal estate during the

intestate's lifetime. transfer such stock

either in such person or persons so jointly NORTH, J., held that there was no evidence in the plaintiff's contract entitled as aforesaid, or in such last-mentioned person or persons together of any intention on his part to adopt the testator's parol contract. His with any person or persons the said court may appoint." In the present lordship thought that the plaintiff's contract was expressed exactly in case there were two trustees of a sum of stock. One of them absconded, the way it would have been if it had been intended that there should be And was, in 1881, adjudicated a bankrupt, and he had ever since remained a new contract, when no contract had been entered into before the abroad.. A new trustee was appointed in his place by the person who testator's death. It was true that there was a reference to the £50 paid was entitled under the provisions of the trust deed to make the appoint- to the testator as a deposit. But there was nothing on the face of the ment, and the cestuis que trustent presented a petition, asking that the right contract to shew what deposit was paid, or what the purchase-money to transfer the stock might be ordered to vest in the continuing trustee, was, or, on the construction of the instrument, who the parties were: in order that he might then transfer the stock into the joint pames of His lordship thought that, if it had been intended to carry out the old Juimself and the new trustee.

contract, it would have been referred to in a different way. He thought NORTH, J., thought that the words—"any person or persons the said that there was a new contract and a conversion of the land into personalty court may appoint"—in section 22 meant appoint, not as trustee or only after the death of the testator. Counsel, Cozens-Hardy, Q.C., and trustees, but for the purpose of vesting the right to transfer, and that the Swinfen Eady; Cookson, Q.C., and Dauney; Eve ;' Buckmaster. SOLICITORS, proper course was to vest the right to transfer the stock in the continuing Field, Roscoe, & Co.; Kingsford, Dorman, $ Co.; Saxelby & Faulkner. trustee and the new trustee.

The petition had been served only on the continuing trustee, but NORTH, J., said that it must be served also on the new trustee.-Counsel,

BREWSTER v. PRIOR-Kekewich, J., 13th December. A. Young ; Tremlett. SOLICITORS, Kearsey, Hawes, & Walsh.


DECLARATION OF TRUST. Re PILSEN JOEL AND GENERAL ELECTRIC LIGHT CO.-North, J., This case raised the question of the legal effect, as regards the liability 11th December.

of an executor, of a statement in a residuary account that a certain sum COMPANY-REDUCTION OF CAPITAL-CANCELLATION OF PAID-UP CAPITAL had been retained to pay an outstanding legacy, and of the admissi

** CAPITAL LOST OR UNREPRESENTED BY AVAILABLE Assets"-CONFIRMA-bility of evidence to shew the incorrectness of the account in question. TION BY COURT-EVIDENCE-USE OF WORD "REDUCED"-COMPANIES

One T. G. died in April, 1863, having by his will bequeathed to the Act, 1877, ss. 3, 4.

plaintiff, William Glover, 'after the death of his widow, a legacy of £500. question arose in this case as to the evidence which should be Prior, executrix and executors thereof. They all proved. W. Glover adduced to justify the court in confirming resolutions passed by a company married the plaintiff, Fanny Glover, in 1869, on which occasion & settlers for the reduction of its capital by the cancellation of paid-up capital, on the ground that the capital which it was proposed to cancel has been lost assigned to the defendant and the other plaintiff, Sidney Brewster, upor.

ment was executed, dated June 15, 1869, by which the legacy of £500 was resolution to reduce its capital, by cancelling paid-up capital to the James Prior, the defendant, was a solicitor, and was the acting executer the court stated that capital to that extent had, previously to the passing ment. The testator's widow died in 1875, when the legacy became one of the of the resolution, been lost or was unrepresented by available assets. The able; and on July 10, 1875, a residuary account of the testator's estate only evidence adduced in the first instance was an affidavit by the chair. man of the company, to the effect that the statements in the petition were

was prepared by James Prior, and signed by him and William North, J., thought that this evidence was not sufficient proof of the

Glover. Under the heading "Deductions from Residue” occurred company could not be affected by the reduction, because the liability of 1884," regularly paid the plaintiff, Fanny Glover, interest in the

this item, “ Retained to pay outstanding legacies—to William Glover,

the widow's death till Cbristmas, North, J., said that, if there were only a temporary depreciation of the value wrote to her alleging that the testator did not leave sufficient assets to

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pay the legacy. A declaration was claimed that the defendant was liable authority had omitted to proceed to recover the expenses before the magis. to pay the sum of £500, with interest thereop. It was urged for the trates: Corporation of Sunderland v. Alcock (30 W. R. 655), Tottenham Local Board plaintiff that there had been admissions on the part of the defendant such v. Rowell (29 W. R. 36, 15 Ch. D. 378), Corporation of Birmingham v. Baker as to render him liable, and that, whether there had been a mistake in the (17 Ch. D. 782). The corporation, after the decision of the magistrates, residuary account or not, he ought not to be allowed to explain it, and had recognized that the apportionment was invalid, and directed a new should be declared a trustee for the plaintiff. For the defendant it was apportionment, omitting the charge for the sewer. It was argued that urged that an admission of assets always is susceptible of explanation, this could not properly be done, as new plans, sections, and estimates and that evidence ought to be admitted to shew that an error had been had not been deposited. But Cook v. Ipswich Board (19 W. R. 1079, 6 made in the accounts.

Q. B.451) shewed that these matters were not conditions precedent. That KBKEWICH, J., said in this case one of the two trustees of the marriage

case and Shanklin Local Board v. Millar (29 W. R. 63, 5 C. P. D. 272) and settlement of June 15, 1869, together with one of the beneficiaries, sued

Wake v. Corporation of Sheffield (12 Q. B. D. 142), shewed that the plaintiffs the other trustee, who was the executor of the will of T. G., deceased, for

were justified in making the second apportionment. MANISTY, J., said £500, without asking for any account of the testator's estate. The case

the substance of the case was that the original notice, though erroneous, was put on the ground that the defendant was bound by an admission amount on the first apportionment. They had, however, treated that as

was not void. The corporation might have proceeded for the smaller that he held the £500, and that, therefore, no account was necessary. The case was apparently based on an admission of assets

void, and it was clear that they had power to make a second apportion:

The doctrine of admission of assets came to this, that the executor, having paid interest be a charge upon the premises. He differed however from Huddleston,

ment; and section 257 enacted that until recovery the amount should on a legacy or done other acts from which the reasonable and inevitable inference was that he had money suficient to pay the legacy, could not be estimates were merely directory; they were conditions precedent.-- COUNSEL,

B., in thinking that the provisions as to depositing plans, sections, and heard to deny assets unless strong explanation was brought forward that Ambrose, Q.C., and Heywood; Taylor, Q.C., and Sutton. he had not the money. It might be a matter of evidence or of inference, R. Freer Austin, for Talbot, Manchester; Gregory, Rowcliffes, & Co.

SOLICITORS, 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. GOODMAN v. ROBINSON; BROWN, JANSON, & CO. (Garnishees) It would, however, require cogent evidence in this case to bring the court

Q. B. Div., 14th December. to the conclusion that a mistake had been made. Besides the original

ATTACHMENT Of Debts-Right Op ASSIGNEE OF JUDGMENT DEBT TO residuary account on the testator's death there had been a settlement,

GARNISHEE ORDER. and the execntor has paid interest as from an investment, and he had over and over again alluded to the legacy as paid. Therefore it would require In this case the question arose whether the assignee of a judgment debt very cogent evidence that there was a satisfactory explanation. The case is entitled to a garnishee order. Pollock, B., at chambers, discharged went further than that; the residuary account was passed twice, the the order nisi, holding that R.S. C., 1883, XLV., 1, did not apply to such second time being on the death of the widow, and the two surviving a case, but only to that of a person who, in the words of the rule, has executors carried in a final residuary account, in which they stated : “obtained "the judgment. The assignee of the debt appealed. “Retained to pay outstanding legacies—to William Glover, £500." It was

The Court (HUDDLESTON, B., and Manisty, J.), allowed the appeal. 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 ; 1873, s. 25, sub-section 6, in connection with the rules. That section gave

HUDDLESTON, B., said that it was necessary to read the Judicature Act, the contention, in fact, was that the word "retained" did not mean "retained" to meet any particular legacy. It would be very dangerous and the rules had been framed to carry out that provision. There was no

the same rights and remedies to the assignee of a debt as his assignor had, to allow executors to say this. The case of a specific legacy in which necessity in the case of this order to construo the words strictly as if it the property passed on the executor's assent had been put as an illus

were a penal enactment. Unless the right to issue garnishee proceedings tration. If once the property passed in equity the executor could not get belonged to the assignee of a judgment debt, the discovery in aid of 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

execution to which he was undoubtedly entitled would be of little u89, not be allowed to go behind it by giving evidence now; it was, in fact, a

MANISTY, J., concurred.-COUNSEL, Dickens ; 4. T. Lawrance. SOLICITORS declaration of trust. [Bis lordship then adverted to the correspondence. Spyer & Son ; P. G. Robinson. 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 EDWARDS v. STEPHENS-Q: B. Div., 10th December. costs of the action. ---Counsel, Barber, Q.C., and Underhill; Warmington; MORTGAGOR AND MORTGAGBE-Right to Possession—INTERIM INJUNCTION. Q.C., and W. D. Rawlins. SOLICITORS, Wainwright & Baillie, for Gould $ Elcock ; J. & W. Maude

This was an application for an interim injunction to restrain the defend.

ant from taking possession or remaining in possession of a house and CORPORATION OF MANCHESTER v. HAMPSON-Q. B. Div., 9th premises which he had mortgaged to the plaintiff. The mortgagor had December.

become bankrupt, but had been allowed by the mortgagee to remain in

possession. The mortgagee, being desirous of entering on the premises Public Health Act, 1875, s. 150–IRREGULAR NOTICE-SECOND APPORTION for the purpose of doing some repairs, gave notice to the mortgagor to MENT-RES JUDICATA.

vacate. The mortgagor refusing to do so, on the 22nd of September, In this case the local board of a district, since incorporated in the city of the use of force, turned the mortgagor out of possession and removed the

1886, the mortgagee, with nine other men, went to the premises, and, by Manchester, served notices on the defendant and others, the owners of

furniture. On the 29th of September, some builders engaged by the land adjoining a new street, under section 150 of the Public Health Act, mortgagee having taken possession of the premises for the purpose of 1875 ; which notices included certain work-viz., a sewer- for which doing the repairs, the mortgagor effected an entrance and resumed the owners could not properly be charged under that section. A summons

possession. The mortgagee then brought this action for damages and an against the defendant for the recovery of £650, the amount apportioned injunction. The plaintiff obtained an interim injunction ex parte ; and upon him, was dismissed by the magistrates, though it was not clear on Grantham, J., refused an application on the part of the defendant to what ground they decided. The local board then made a second ap. dissolve it. The defendant obeyed the order of Grantham, J., by going portionment, deducting the expense of the sewer, in which the amount charged to the defendant was £579. The plaintiffs brought this action

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 preunder section 257, to establish a charge on the defendant's property for cedent for granting an injunction to quiet a man in a possession obtained £579, or, in the alternative, for £650. Grantham, J., nonsuited the plain by an illegal act. The defendant was in rightful possession on the 22nd tiffs on the ground that the matter had been decided by the magistrates, of September, if not by virtue of his own title, at any rate by the leave and that the local board had no power to make a second apportionment (30 and license of the plaintiff, and he ought to be allowed to retain of the appeal, that the board had a right to make a second apportionment; possession till the trial of the action. At least, after the defendant had that it was res judicata, so far as the summary remedy was concerned, the remedy of an injur ction, Edwick v. Hawkes (29 W. R. 913, 18 Ch. D. plaintiffs were entitled to ask that the property be charged with the 199) and Beddali v. Maitland (29 W. R. 484, 17 Ch. D. 174) were referred

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

The Court (Cave and WILLS, JJ.) dismissed the appeal. The general dismissed. Section 257 only gave a charge where the owner was liable; rule was that where there was a bonâ fide dispute the party in possession and here it had been decided that the defendant was not liable. There should be kept in possession till the dispute was settled by legal means ; was no power to make a second apportionment.

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 The Court allowed the appeal, setting aside the nonguit, and giving possession, and he could not and did not deny that the plaintiff was judgment in favour of the plaintiffs for a charge upon the premises for the entitled to possession. All he could urge was that the plaintiff ought to sum of £579. HUDDLESTON, B., said that the question whether the pre have obtained possession by peaceable means, and that, as the plaintiff vious adjudication of the magistrates was a defence the action

pended had now got all he sought for, this application ought to be dismissed as on the identity of the subject-matter of the demand. If the magistrates vexatious. But if the court were to dissolve the injunction it would be had decided on the ground that the street was a highway repairable by encouraging the defendant to try to resume possession. And it would be the inhabitants at large, Reg. v. Hutchings (27 W. R 724, 6 Q. B. D. 300) monstrous to say that, though he admitted he had no right to possession, showed that they had gone beyond their juriediction. But even if the and though he admittedly had given up possession, yet he was to be ground of their decision was the irregularity in the apportionment, it would retained in possession till the trial of the action. not operate as an estoppel to this action. It had been decided that a from was right and must be upheld.—COUNSEL, Oswald; Clay. SOLICITORS, charge might be established under section 257, even although the local George Johnson ; Mason $ Edwards.

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