Page images
PDF
EPUB

tween the two cases is technical and unsubstantial. The real issue was determined when it was settled (and this

CAN THERE BE A CONTRACT OF THE EXIST. appears from Vice-Chancellor Kindersley's observations

ENCE OF WHICH ONE OF THE SUPPOSED in Vaughan v. Vanderstegen to have been settled some

CONTRACTING PARTIES NEITHER KNOWS what silently) that the equity in question applied in the

NOR IS BOUND TO KNOW ? case of a man although his power was only testa

I. mentary.

The case of The Household Fire Insurance Company v.

Grant (27 W. R. 858, L. R. 4 Ex. D. 216) raised a point THE CHANCERY VACATION BUSINESS grows with great

of great importance with regard to the principle inrapidity. In the year 1870 the vacation orders made by

volved. Somewhat similar questions have at various the Court of Chancery numbered about 117. During the

times come before the courts, and we doubt whether the vacation of 1879 the Chancery Division made about 850

law on the subject can even now be considered as orders, or more than seven times as many as were made

definitely settled, the more so that Bramwell, L.J., ten years ago. The number of these orders bas been

dissented from the opinion of the court. We must gradually increasing from year to year, and one great

confess to entertaining a very strong opinion that, whatcause of this increase lies in the fact that the books of the

ever the law may be, the common sense of the matter is Chancery Paymaster are now open all the year round,

clear, and that the view expressed by Bramwell, L.J., is and there is no interval of time when an order may not

consistent with reason and justice. The majority of the be carried into his office.

court (Baggallay and Thesiger, L.JJ.) seem to have considered the matter concluded by authority.

The point was briefly this. The defendant applied for

shares in the plaintiff company. The company allotted The ATTORNEY-GENERAL, Sir John Holker, M.P., owing the shares to the defendant and duly addressed to him, to the pressure of important official work, has decided to

and posted, a letter containing the notice of allotment, limit his private practice these sittings, and has been

but the letter never was received by him. It was held obliged to return some briefs.

by the majority of the Court of Appeal that the defendant was a shareholder, overruling British and American Telegraph Company v. Colson (L. R. 6 Ex. 108). The

case which was considered to be a conclusive authority Twenty gentlemen were called to the bar on Monday in on the point was Dunlop v. Higgins (1 H. L. C. 381). Dublin, the largest number at one call for many years. There has been a good deal of discussion in this class of It is stated that, in consequence of the advocates in the

cases as to when the contract, if any, is concluded, and at Italian town of Cagliari having declined to accept any longer

what period the aggregatio mentium is complete. It has the rate of emolument hitherto prevailing, judicial business

been said, if the contract is not complete upon the letter has been brought for a time to a standstill, and the Minister of accepting the offer being despatched, when is it com. Justice has decided to remove the cases at present pending in plete ? If knowledge by the offeror of the acceptance of the Cagliari courts to the Roman tribunals.

the offer is necessary to complete the contract, it would At the Nottingham Assizes, on the 7th inst., before Mr.

follow that knowledge by the acceptor of the fact that Justice Lubb, Philip Charles Daff was charged with having

the acceptance has been communicated to the offeror may indorged false statements on a number of county court be necessary, and so on ad infinitum, so that there never gommonses. Prisoner had been employed as a bailiff at can be an aggregatio mentium, the parties being apart the Nottingbam County Court, and had been intrusted and not being capable of simultaneous expression of with a large number of copies of summonses to serve upon agreement. Such is the argument employed in Dunlop the persons against whom they were issued. He after v. Higgins. wards indorsed the original summonses which were kept We cannot help thinking that, under cover of loose in the office of the court, to the effect that the copies had metaphysical expressions and ideas such as aggregatio been so served. On the cases being called before the mentium," a good deal of unnecessary perplexity is somecoart the defendants did not appear, and judgment was times introduced. It seems to us that there may be & given against them. It was then discovered that they lurking fallacy in the notion that an aggregatio mentium had never received the summonses, and the prisoner, on being questioned by the high bailiff, admitted that his

necessarily constitutes a contract in the legal sense of indorsements were untrue. He had failed to deliver as

the term, arising from an absence of distinct idea of the many as sixty-three sommonses, the originals of wbich

meaning in which the term aggregatio mentium is used. he had indorsed as served. He pleaded guilty, and was

It is generally necessary to a contract, no doubt; but“ consentenced to twelve months imprisonment.

used in this relation means obligation

binding in law. There is sometimes a contract withIn opening the Commission for the Winter Assize County No. 7, wbich comprises the counties of Norfolk and Suffolk

out any aggregatio mentium at all. One party may and the city of Norwich, the Lord Chief Justice, in the

not have meant the same as the other all along ; course of his charge to the grand jury, animadverted upon

and yet there may be a contract. The real question the fact that many of the cases could have been tried at

is, When does the contract become legally obliquarter sessions, and pointed out the inconvenience which gatory on the party sought to be charged ?-not cild arose from thus withdrawing the judges from their important

then does it become a contract in any efficient legal duties in town for the trial of such cases. The grand jury, at sense of the term. It seems to us possible that the the close of their labours, made a presentment on the sub aggregatio mentium may in some cases be antece.. ject :-"The grand jury concur in his lordship’s remarks dent to the time when the contract becomes binding on that the calendar bas been unnecessarily incumbered with the offeror, though, of course, this depends somewhat oncases which ought to have been reserved for trial at quarter what is meant by aggregatio mentium. We should say sessions." The Lord Chief Justice said he was glad to have the concurrence of gentlemen so familiar with the adminis.

the only practical meaning of the term is assent of two tration of criminal justice in the remarks which he had made

minds to the same terms. Of course, if it is merely the on the subject. While it was desirable, as he concurred in

Latin for “contract” the whole question is begged. thinking it was, that prisoners should not be kept for trial

In this point of view we do not see any such very great longer than was consistent with public convenience, yet, on

difficulty as has been suggested in supposing that the the other hand, as to cases of such a character that they

contract by the offeror does not arise until the acceptance could be well disposed of at quarter sessions, the judges

has been communicated to him. The party accepting ought not to have their time taken up in the trial of knows that he has accepted and has taken steps to comsuch cases, being thus withdrawn from their important duties municate his acceptance ; it may be said that, therefore, in town, and thus delaying the general administration of he ought to be bound unless and until he ascertains that justice.

the mode of communication he took failed; he is

tract "

as

8o.

not entitled to say that there is no contract until the risk of his failure. Why should I be placed in a the other party has received the communication. He different position because, for my own convenience, I knows of the aggregatio mentium; the other party by employ the public message carrier ? The case of notice hypothesis does not. The question really seems to resolve of dishonour of negotiable instruments does not seem to itself into this : can a party be bound by a contract of us conclusive, or, indeed, in reality, at all analogous. which he does not know, and ex hypothesi may be un The true rule on that subject may be, not that the holder able to know, the existence ? In other words, can a man is bound to give notice of dishonour in the sense that the have promised in the legal sense without knowing that notice must reach the prior indorser, but that he ought he has promised ? If it be correct that the contract is to take reasonable means to inform him of the dishonour, completely binding directly the letter of acceptance is which reasonable means, by usage of trade, are so-anddespatched, then, assuming some cause that should abso It is obvious that this question is wholly different lutely prevent the delivery of the letter, the contract from the question whether a man can be bound by a nevertheless is good. One cannot understand any prin- contract which, ex hypothesi, he cannot know to exist. ciple on which a person ignorant of the existence of the It seems to us, as we have before said, that a fallacy aggregatio mentium is to be affected by the same legal may have crept in in this way, viz., that it has been asobligation as if he knew of it, except on the ground of sumed that the contract is necessarily complete in the laches on his part or that of his agent.

sense that there must be a contract legally binding both And here comes in a very remarkable point in the parties directly the aggregatio mentium (by which we discussion. There seems to have been some such train mean merely the agreement of the two minds as to terms) of reasoning present to the minds of the judges in the is complete. If aggregatio mentium constitutes a convarious cases; and those who maintain the view of the tract, and merely means the assent of two minds to majority in the case we are discussing seek to make the certain terms evidenced by overt acts on both sides, post office the agent of the party to whom the letter is clearly it would be sufficient if the party to whom the sent. We cannot understand this as a plain matter of offer was made wrote an assent and never sent it at all, fact. It is the plain truth that the post office is the but, intending to post it, dropped it into some hole which agent of the sender, so far as it is agent of either party, was not a letter-box by mistake. This shows either that and it seems to us the extreme of far-fetched theory to aggregatio mentium is not complete without communicatreat the postman as a messenger sent by the offeror of tion of it, or that aggregatio mentium alone will not conthe proposal to bring back the answer. There was some stitute a contract. This is in effect what Bramwell, L.J., talk in Dunlop v. Higgins of the usage of trade, and of says when he lays down the proposition that assent to implied authority to return an answer by post when the the proposal or acceptance is not enough, but there offeror must have contemplated an answer by post. With must be communication of the assent to the proposer. all respect for the eminent persons who used these This being so, in order to make the posting of the letter expressions, if we must call a spade a spade, we should such a communication, you must make the post office not call them good sense. People communicate by post the agent of the offeror, which, for the reasons above because it is convenient in all the relations of life. given, seems to us contrary to plain facts and justice. There is no usage of trade that if a person replies by We feel doubtful whether the best expression of the post it shall be sufficient acceptance, nor is there any rule is as the Lord Justice lays it down, though, for the implied authority in the matter. Any implied authority purpose for which lie used it, the definition was sound in the sense of the term "implied” for which we have enough. It does not seem to us clear that the contract always strenuously contended-viz., any such authority does not arise until the communication of the acceptance actually in the necessary contemplation of the parties of the proposition reaches the offeror. Suppose the minds—there clearly is not. Can any sane person letter came to the address he gave, but he had gone out suppose that a person writing for an allotment of shares of town without making provision for having his letters really means in his own mind that he is making the post forwarded ? It seems to us that if the offer is accepted office his agent in the sense that delivery of an answer the contract becomes binding on the offeror if the to the post office is delivery of an answer to him ? Surely acceptance would have been communicated to him but not. We are confident that if the case were put in any for his own default, assuming, of course, that the comcompany there would not be a single person, not a lawyer, munication would have been in time. We believe that who would not exclaim at the injustice of making a on a thorough analysis it would appear that the true person a shareholder in a company without his know- question in these cases is—assuming that there would ledge because a letter had been posted which had never have been a contract if the acceptance of the proposal reached him.

had been known to the proposer-Whose fault is it that Then, with regard to implication of authority by law, he did not know? We doubt whether it can be solved such an implication may be made when natural justice by a general rule. It seems to us that the circumstances or convenience dictates it ; as when of two parties, both might vary greatly, and in some cases there might be innocent and unfortunate, one has conduced to the mis- suficient to make it the offeror's duty to inquire further chief more than the other, for instance where a person held as to the fate of his proposal; but generally it would lie out as a general agent has exceeded his actual authority. on the acceptor of it to insure his acceptance being But we want to know why the offeror is to be held to made known. We propose on a future occasion to make take upon himself the risks of the post office? We should a few observations with regard to the authorities on this have thought it a truism to say that that person must subject, and also as to the supposed difficulties that bear the risks of the post for whose convenience it would arise from holding that the contract is not comhas been employed. I receive an offer of a contract : plete till the offeror knows or ought to know of it. assume it to have come by post. The party sending it would have suffered if the post had failed, so far as the offer not reaching me is concerned, because the means of communication he employed would have failed. It is

The Scottish Journal of Jurisprudence records the death just as if he had shouted to me from a distance, but the of Mr. James Maidment, the oldest member of the Faculty distance being too great, or his voice being weak, the

of Advocates. He was called to the Scottish bar in 1817, parport of what he said had never reached me. Why his death he is said to have taken the position of being the

and was an intimate friend of the late Mr. Riddell, and after should there be any difference in this respect with regard first advocate in Scotland in cases involving genealogical to the answer ? But assuming, in some way or other, an offer to have inquiries. He published in 1840 "Reports of Claims pre

ferred to the House of Lords in the Cases of Cassilis, Suthercome to me; it is immaterial how. I have to accept the land, Spynie, and Glencairn Peerages," and at a later contract if I wish to do so, and notify my acceptance. period took a specially prominent position in the Mar Poerage If I gent a messenger of my own, clearly I should take

lane (sic), fit to be sown with wheat in the next year after FARM LEASES.

tbe end of the term hereby granted”; to inbarn all

corn, hay, &c., on the premises ; to expend dung on the Among the results of the “ agricultural depression” not demised lands and not elsewhere; to leave the dung on the least noticeable is the change in the terms of farm the land at the end of the term, and to pay an increased rent leases. After remaining almost wholly unaffected by for every acre of meadow ploughed up. And in Shepthe progress of agricultural science, these contracts have pard's " President of Presidents" (3rd ed., published in suddenly yielded to the pressure of hard times. Re 1704), there is, at p. 153, a form of agricultural lease, strictions formerly deemed essential to the protection of which, besides several of the above-mentioned covenants, land from deterioration are now not unfrequently provides that the tenant may “plough any of the omitted, and in some cases the whole structure of the arable land on the demised premises two years to. tenant's covenants is changed. It may be anticipated that gether and not above, and after that shall let before long the common forms of farm leases, thumbed the same be one year fallow.” But this provision does by a long succession of articled clerks in solicitors' not appear in other precedents of the period ; and conparoffices, and the printed agreements for particular estates ing the forms in these collections with those contained handed down from one agent to another, will have to be

| ir. “The Modern Conveyancer"-a work of about the remodelled. It may be useful to review the process by

Tseful to review the process by same date-it would appear that the ordinary farm lease which these forms have been built up, and afterwards to at the beginning of the eighteenth century restricted the consider the direction which the impending changes are

removal of straw and dung from the demised premises ; likely to take.

imposed increased rent on ploughing meadow land, and The early English farm lease was remarkable for the sometimes gave the landlord the right to enter on the absence of covenants relating to the mode of cultivation. | farm during the last year of the term in order to plough In one of the earliest forms given in Madox * it is and prepare for the next year's crop. It appears from simply provided that the landlord or his heirs shall Cullum (p. 249) that about the middle of the last receive back the land at the end of the term in the same

century leases were granted requiring the tenant to leave state, or a better state, than that in which the tenant

one-third of the arable land ploughed and fallowed for took it, and a like covenant is to be found in another lease wheat, the out-going tenant to be paid for the labour made in the reign of Henry II.t A somewhat similar according to the custom of the country. provision occurs in a lease dated 1410, given in Cullum's

We come now to the end of the last century, when History of Hawstead, p. 225, where the tenant covenants

“Wood's Conveyancing "was in vogue. This work contains to leave at the end of the lease as many acres as well

| a wonderful variety of precedents of leases ; and as by ploughed, sowed, and manured, as he received at the

1793 it had reached a 5th edition, it may be taken as beginning of the lease.

affording an accurate idea of the prevalent farm lease. But by the time of Henry VIII, even this provision At page 88 of vol. 2 there is the form of lease of a farm seems to have disappeared; for in a lease made by that “with a variety of good covenants.” We find the old monarch, under the seal of the Court of Wards, of

covenants as to the expenditure of hay, straw, and dung - divers messuages and lands of one of the King's

on the premises, and the increased rent on ploughing Wards," the lessee simply covenants that he “nor his meadow land; but in addition to these there are, for the assigns shall do, nor suffer to be doon, any voluntary

first time inserted, provisions binding the tenant to sow waste or spoyle of the said messuages, howses, or other

a certain number of acres with clover every year; to the premises . . . and if any wilful waste be doon leave every year half of the arable land unsown or encroachment of any landes be made, to the preju

as a summer fallow, and not to mow certain dyce of the inheritance of the said heyre, that then the

specified land. In another collection of precedents said Llessee] and his assyns as moche as in him and of about the same date (Newnam's Complete Conveyancer) them lyeth shall withstande and defende the same."

we find (p. 133) a covenant that the tenant shall use In a lease dated 1572, given by Cullum (p. 230), it is the land “ according to the order and course of good provided that the tenant may put into tillage all husbandry," and after every second and third crops of the pasture-grounds except the borders, where the corn sow the same with grass, clover, or turnip seed. timber grew, but he must lay all the arable land to And from the other precedents of farm leases contained in pasture one whole year before the end of the lease. At

these volumes, it may be gathered that at the beginning this time the scarcity of timber led to stringent restric

of the present century the ordinary farm lease, in tions in farm leases as to felling or lopping trees.

addition to the older restrictions, bound the tenant after In the beginning of the seventeenth century we find

a second corn crop either to leave the land in fallow specific provisions made as to the mode of cultivation.

or to lay it down with grass. As regards the terms of In a form of farm lease for twenty-one years given in quitting, the provisions vary. In some leases the tenant West's Symboleography (part 2, section 432), published

is allowed to hold the arable land, or a part of it, until in 1606, the tenant covenants not during the term to after the harvest following the end of the term, and the "harry or break up any part or parcel" of certain lands barns for a year after the end of the term; but in other without consent, and to bestow thedung yearly on the arable

leases the tenant is bound at the end of the term to land, and it is provided that he and his executors and as

have certain parts of the land sown with wheat, the signs “shall and may sow any of the said arable land be

landlord providing the seed only. Provisions for comlonging to the said premises two years together during

pensation or allowances to the outgoing tenant do not the said term, and not above, and after that let the same

appear in these leases. lands lie one year fallow.” Fifty years later these covenants seem to have been disregarded, for a lease of lands, given in a book of precedents published in 1655, con

Most cotton trade-mark owners, says the London correstains no covenants as to cultivation.

pondent of the Manchester Guardian, especially those who

A usual covenant in farm leases throughout this century imposed a restric

produce for the Eastern markets, have for some time past

been anxious that the exclusive right to protection in this tion on the kind of cattle to be turned out to graze in

country which they acquire under the new Act should be tvoodlands.

extended to the Indian Empire. The Bombay Chamber of By the end of the seventeenth century we find Commerce having given their co-operation to the furtherance -covenants as to cultivation in ordinary use. The of this project, the Government of Bombay have drawn up Scriveners' Guide, published in 1695, gives, in the a Bill to cover the whole of British India, and which will, general form of lease of a farm," covenants by the if passed, come into effect on the 1st day of January next. .tenant to leave “ 20 acres of the arable land in a wheat The Bill establishes a registry of trade-marks for the em.

pire, and in nearly every respect corresponds, mutatis mutan. * Formulare Anglicanum, 135.

+ Ib., 141. | dis, with the Act which was lately passed for the mother The Perfect Conveyancer, p. 322.

country.

Kecent Decisions.

General Correspondence. BENEFIT OF RESTRICTIVE COVENANTS.

To CORRESPONDENTS.- Al letters intended for publica (Renals v. Cowlishaw, C.A., 28 W. R. 9.)

tion in the Solicitors' Journalmust be authentiThe law as to the devolution of the burden of re.

cated by the name of the writer. The Editor cannot

rundertake to return MSS. forwarded to him. strictive covenants is, of course, clearly settled. All who take under the original covenantor with notice of the covenant are bound by it, for “ if an equity is attached AFFIDAVITS OF SERVICE IN DISTRICT to property by the owner, no one purchasing with notice

REGISTRIES. of that equity can stand in a different situation from the [To the Editor of the Solicitors' Journal.] person from whom he purchased."

Sir,--It having come to the notice of various members But the law as to the devolution of the benefit of a

of our local law society that differences existed in the restrictive covenant has been left in a less certain condi

district registries respecting affidavits of service, and that tion. The authorities, however, before Renals v. Cowli

certain forms that were satisfactory in some registries shaw, pointed at the doctrine that the assign of the

were rejected in others, I was directed, as secretary, to covenantee could not enforce a restrictive covenant un

make inquiries in the different registries on the point, less he had either expressly stipulated for the benefit of

and the following four questions were put to each the covenant, or had contracted under such circum

registry:stances that he must be deemed to have so stipulated.

1. How is the description of the solicitor's clerk who That is to say, as Mr. Dart has put it, restrictive cove

serves a writ inserted in the affidavits passed in your nants are not in the nature of a reservation to the vendor,

registry? Is it sufficient to describe him as “A. B., devolving on his subsequent purchasers as attached to

clerk with Messrs. C. D., of Sheffield, solicitors ” ? the property, but when enforceable in equity by an

1 2. In what way is the service on one of the partners assign they are so enforceable as depending entirely on

of a firm sued as, e.g., C. Smith & Co.," shown on an the contractand intention of the parties. In order to

affidavit accepted in your registry ? enable the assign of the covenantee to enforce

3. The like question when the writ is served on a suck covenants there must be either an agreement

manager. between vendor and new purchaser, giving to the latter

4. Do you consider it necessary to insert the words the benefit of the covenant, or some kind of representa

| “ within the jurisdiction " when the action is brought in tion by the vendor to the new purchaser that the latter

the usual way, not under the Bills Act? should have the benefit of the covenant. The question

The circular was sent to seventy-one registries, and as to representation usually arises on the sale of an

answers were received from forty. It was found from estate laid out under a building scheme. In this case a

these answers that hardly any one of the registries representation or intention that each purchaser should

agreed with any other registry in giving the same be bound by certain covenants, and should have the

answers to the circular. The method in which the benefit of such covenants against other purchasers, is

Sheffield Registry would require the affidavit to be worded easily made out; and it may probably be said that prac

was shown on the circular, and appears below, and the tically in these cases, although all the covenants are made

answers showed that with the vendor, one covenantor may obtain the benefit

On question 1, eighteen registries agreed with, twentyof them as against another covenantor.

two differed from, Sheffield; In Renals v. Cowlishaw there was no circumstance of

On question 2, twenty-eight agreed with, six differed this kind, but it was contended that, inasmuch as the

from, Sheffield; intention of the parties is the test, a restrictive covenant

1 On question 3, twenty-seven agreed with, five differed taken by the owner of a residential estate from a pur

from, Sheffield;

from chaser from him of lands adjacent to the residential

And on question 4, eight agreed with, thirty-two estate must be deemed to have been taken for the benefit

differed from, Sheffield. of the residential estate, so as to enable an assign of part

As the matter is of considerable importance, affidavits of that estate to maintain an action on the covenant.

being often only filed on the last day, and alterations But the answer to this contention was furnished by Lord

requiring some two days to effect, the committee Justice Bramwell, when he said, in Master v. Hansard

sanctioned my laying this matter before the legal public (25 W. R. 570, L. R. 4 Ch. D. 718), that the covenant

in the shape of a letter inviting any correspondence on was " put in, not for the benefit of the particular prop

the subject. In order to put this more clearly, I have erty, but for the benefit of the [owners), to enable them

added at the foot a form of affidavit of service, showing to make the most of the property which they retained ;”

the parts in which all are agreed, and in italics the and both Hall, V.C., and the Court of Appeal held that

portions in which disagreements occur, but, as put before the purchaser of part of the residential estate could not

you, the affidavit is in such a form as would be accepted maintain an action to restrain the breach of the restric- |

in the Sheffield Registry. tive covenant. The practical lesson of the case is the

HERBERT BRAMLEY, desirability in all cases where there is ground for think

Hon. Sec. Sheffield District Incorporated ing that in former dealings restrictive covenants were

Law Society. taken of including in the conveyance the benefit of any

Sheffield, Nov., 1879. restrictive covenants with reference to the use of adjacent

The method in which the above questions are an. lands.

swered in the Sheffield Registry : “1. I, A. B., of, &c., clerk to Mr. , of the same place, solicitor. 2. A. B.,

one of the partners in the firm of C. Smith & Co., the The benchers of the Middle Temple have appropriated a set of chambers under the library to be used as a sub

above-named defendants. 3. At (place of service), being

the principal place of business of the partnership of O. scription common room. There will be reading, writing, and smoking rooms, and newspapers, magazines, and books

Smith & Co., personally served A, B., the person having of reference will be supplied.

at the time of such service the control and management Persons connected with the Temple, the new Law Courts,

of the partnership there." 4. The words “within the and in the neighbourhood generally, will be interested to

jurisdiction” are here inserted. learn that the premises No. 43, Fleet-street, opposite Fetter.

In the High Court of Justice, Queen's Bench Division, lane, lately occupied by Messrs. Eyre & Spottiswoode, are in Sheffield District Registry.-Between John Jones, plain. course of reconstruction as a branch post-office on a consider. | tiff, and C. Smith & Co., defendants.-I, A. B., of, &c. ble scale.

(full address), clerk to Mr. - , of the same place solicitor, make oath and say: First, that I did on Monday, authority to the contrary. The court (JAMES, BAGGALLAT; the first day of September, in the year of our Lord and THESIGER, L.JJ.) held that the application was pro1879, at , being the principal place of business of perly made to the Court of Appeal. And they made the

of napebinar o somith & Co the above-named asual order staying proceedings, except that the costs defendants, within the jurisdiction of this honourable

were to be taxed and paid to the respondent's solioitor, he court, personally serve C. D., the person having, at the

undertaking to refund them in case the decision shonld be time of such service, the control and management of the

reversed. partnership business there (or personally serve C. Smith, one of the partners of the firm of C. Smith & Co., the PATENT_SPECIFICATION-SUFFICIENCY.-In a case of above-named defendants), with a true copy of a writ of Wegmann v. Concoran, before the Court of Appeal on the summons which appeared to me to have been regularly 10th inst., the decision of Fry, J. (27 W. R. 357, 23 SOL[issued out of and under the seal of the district registry | CITORS' JOURNAL, 121), was affirmed. The action was brought in Sheffield of Her Majesty's High Court of Justice at to restrain an alleged infringement of the plaintiff's pathe suit of the above-named plaintiff against the above- tent, and Fry, J., dismissed it, on the ground that the spenamed defendant, and dated 29th day of August, 1879,

cification was insufficient. The patent was for “ the inven

tion of an improved machine or apparatus for treating or and marked 1879, H., No. 2666, to which said writ and

preparing meal.” The invention consisted mainly in passcopy a memorandum was subscribed and due indorse.

ing the meal (produced by the ordinary process of grinding ments were made thereon pursuant to the statute in that

wheat between two grindstones) between a pair of squeeze case made and provided. Secondly, and I further say

saying rollers, in contact with each other, and made to rotate that I did afterwards, on the 2nd day of September,

in opposite directiong. The specification stated that "the 1879, indorse on the said writ the day of the week and

squeezing rollers are to have a surface consisting of matemonth of such service according to the statute in that

rial containing so much silica as not to colour the meal or case made and provided. Sworn, &c.

flour. I prefer to make them of iron coated with china, and finely turned with diamond tools.” The evidence showed that the material which the plaintiff actually used

for his rollers, and the only one which, so far as he knew, Cases of the va eek.

would answer his purpose, was a very hard kind of porcelain, not manufactured and known in England, but made

for him in Italy. This porcelain contained 73 per cent. of BILL OF SALE-ACT OF BANKRUPTCY-ASSIGNMENT OF

silica, which is a much larger proportion than is contained in WHOLE PROPERTY TO SECURE ANTECEDENT DEBT —

what is now commonly manufactured in England as chiar AGREEMENT AT TIME OF LOAN-EXCEPTION OF BOOK

(which contains only 40 per cent. of silica), and is about DEBTS.-In a case of Ex parte Burton, before the Court of

the same proportion as is contained in oriental china. Appeal on the 6th inst., the question was whether a bill of

What the specification described as a roller made of iron sale, executed by a liquidating debtor shortly before he filed

coated with china consisted, in fact, of a very thick, his liquidation petition, was void against the trustee in the

hollow porcelain cylinder, with an iron spindle liquidation as an act of bankruptcy. The bill of sale con.

passing through the centre of it, and forming its axis. If prised all the property of the debtor (who was a small retail |

the porcelain cylinder fitted close to the iron spindle, it was trader) except his book debts, and it was given in considera

liable to crack when the iron became hot, by reason of its tion of, and to secure, a loan of £200 made to him by the

unequal expansion as compared with that of the iron. The grantee sometime previously. In the debtor's statement of

plaintiff in practice interposed between the porcelain and the affairs presented to his creditors he stated that his book

| iron a bedding of sulphur cement, which became soft when debts amounted to £363, and he estimated them as likely to

the iron became hot, and thus prevented the cracking. This produce £150. Upon this it was urged that they formed a |

fact, however, was not stated in the specification. It also substantial exception from the security. It was also alleged |

appeared that, in order that the surface of the rollers should that, at the time when the loan was made, there was an

not disintegrate in the process of squeezing, and thus disagreement to give a bill of sale to secure it. Upon the

colour the meal by the fine particles given off, it was necesevidence the court (JAMES, BAGGALLAY, and THESIGER, L.JJ.), came to the conclusion that the agreement really

sary that the material of which they were made should was that the bill of sale was not to be given until the lender

possess the quality of toughness as well as that of hardness, “ lost confidence" in the borrower, and that, therefore, the

and that the toughness of the material employed by the principle of the decision in Ex parte Fisher (20 W. R. 849,

plaintiff was due to the presence in it of a larger proportion

of alumina than is contained in china. This fact also was L. R. 7 Ch. 636) applied. The agreement was in effect to

not stated in the specification. Fry, J., held that the give the security only when the borrower should be on the

machine could not be constructed by a workman of ordinary verge of bankruptcy, and such an agreement could not sup- skill with the aid of the specification alone, but that further port the deed. And, though it has been sometimes doubted whether book debts could form

experiments would be necessary, and, consequently, that the a valid exception for this

specification was bad. And this decision was affirmed by purpose, this doubt being partly founded on the decision in Ex parte Foxley (16 W. R. 831, 'L. R. 3 Ch. 515), the court

the Court of Appeal (JAMES, BAGGALLAY, and THESIGER,

L.JJ.) on the same ground. expressed an opinion that book debts, if of sufficient value, might well form a valid exception, illustrating this by the case of a banker whose assets consist to a great extent of TRUSTEE Act, 1850, S. 32—"New" TRUSTEES-REbook debts. But, upon the evidence, the court held that in APPOINTMENT OF THREE ORIGINAL TRUSTEES IN PLACE the case before them the book debts did not form an avail. OF FOUR.--In a case of In re Harford's Trusts, before able asset, and, consequently, that the deed was void as the Master of the Rolls on the 8th inst., a petition was against the trustee.

presented asking that three out of four original trustees

might be appointed new trustees of a will, the fourth trustee PRACTICE-STAYING EXECUTION PENDING APPEAL-PRO

having absconded. JESSEL, M.R., although bo felt somePER COURT TO APPLY TO-ACTION IN ADMIRALTY DIVISION

doubt as to whether the court could make an order for ORD. 58, R. 16.-In a case of The Khedive, before the Court

the re-appointment of the three trustees, as section 32 of of Appeal on the 8th inst., an application was made to

the Trustee Act, 1850, required that “new” trustees should stay the proceedings ander a judgment of the Court of

be appointed, ultimately made the order, following In re Appeal, pending an appeal to the House of Lords. The

Stokes (L. R. 13 Eq. 333). question was raised whether the application ought to be made to the Admiralty Division or to the Court of Appeal. COMPANY-ILLEGALITY – WINDING UP-JURISDICTION The case of Justice v. The Mersey Steel and Iron Company (24 Costs-CONDUCT OF ORDER.-In a case of In re Mutual W. R. 955, L. R. 1 C. P. D. 575) was cited as showing Society, also before the Master of the Rolls on the 8th inst., that in common law aotions such an application ought to a question was raised as to whether the society was not an be made to the division in which the action is brought, illegal association under the Lottery Acts, on the ground through the later case of Grant v. The Banque Franco. | that certain benefits were secured for its members by means Egyptienne (26 W. R. 669, L. R. 3 O. P. D. 202) is an 1 of drawings by lot. The object of the company was to

« PreviousContinue »