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was what, in such a case, was his liability—a question which, for the reasons abore alluded to, seems to us
Recent Decisions. comparatively easy of solution. The whole thing resolves itself into this. A man gives a bill for his own IMMUNITY OF PUBLIC SAIP, NOT A SHIP private purposes in his own name, intending to bind him.
OF WAR. self only. He happens to carry on business in con. junction with another person under the same
(The Parlement Belge, C.A., 28 W. R. 642.)
name. Why should a person, who takes the bill without any There arose in this case the exact question referred to reason for thinking that he is taking any but the bill of by Mr. Justice Blackburn in The Charlieh (26 W. R. the individual, be entitled to make the partner liable ? | 438, L. R. 8 Q. B. 201) as a difficult question of interThe thing is too simple. Why should recourse be national law: What is the liability of a vessel, not a necessary to a long train of English and American ship of war, which is the property of a foreign State, authorities to solve such a question ? The court, how when she causes damage by a collision to another vessel ? ever, thought it desirable to consider and express their Does the circumstance of her being the property of a judgment on the point involved in their second proposi foreign State oust the jurisdiction of the English Court tion, and as to the importance of this point there can be of Admiralty ? This question has never before been disno doubt.
tinctly decided in England. In the case of The Frins The interesting question that this case seems to us to Frederik (2 Dodson, 451) the question was raised, but leave open is whether, if the person taking the bill not decided, whether an armed ship of war belonging to knows of the other partner, and takes the bill as a part the King of the Netherlands was liable to civil process nership bill, he can charge the partners, though the bill in a British port. In The Schooner Exchange v. was, in fact, drawn by the individual for his private McFaddon (7 Cranch. 116) it was decided by the Supreme purposes. It seems to us that a strong argument may Court of the United States that an armed ship of war of be drawn from the second proposition laid down in the a foreign Sovereign coming into the ports of the United jndgment in favour of the view that he may. If the States was exempt from the jurisdiction of the courts of presumption, as a matter of evidence, is that a bill that country, and the principle has since been generally drawn under such circumstances is a trade bill drawn recognized. Dr. Lushington seems to have first extended by the partnership, it seems to us arguable that, it to a troopship (The Athol, 1 W. Rob. 374); and in Briggs as a matter of business, a person taking the bill is en v. The Light Boats (11 Allen, 157) the Supreme Court titled similarly to presume that the bill is a partnership of Massachusetts explained the reason of the imbill, and if he does so presume the partnership will munity of ships of war as being that they are public be liable. The question seems to us to turn on con. property, and laid down the broad principle that the siderations of expediency. If the law were laid down public property of the Government of any State, in use one way or the other, no business man taking a bill of for public purposes, is beyond the jurisdiction of the this sort could afterwards complain of hardship, for he courts of its own or any other State. On the other hand, would do so with his eyes open to the risk. The real Mr. Justice Story, in United States v. Wilder (3 Summer, question seems to be whether it would be reasonable or at p. 315), said that the immunity might well apply to practicable to throw on persons engaged in business the property, like public ships of war, held by the Sovereign necessity of inquiring in every case where a bill bearing jure coronæ, and not be applicable to the common a name common to a firm and an individual was pre- property of the Sovereign of a commercial character. sented to them whether it was the bill of the individual The case of The Schooner Exchange, he added, decided only or of him and the other persons whom they knew that ships of war coming into the ports of the United to be partners. Such inquiries would often be trouble States were exempt from all process, but it did not some, and would cause delay, and in some cases it might decide that the property of a foreiga Sovereign, not be practically impossible to make them. At the same belonging to his military or naval establishment, was time, if we could suppose that it would prevent partner. entitled to a similar exemption, ships from being carried on under the name of a single In the recent case-where it was sought to render a individual, we think it would be an advantage, because it Belgian mail packet, which was a public vessel of the is obvious, from the considerations that arise out of the Belgian State, liable for a collision-the Court of Appeal case we have been discussing, that inconveniences and adopted both the decision and the reasons given in anomalies result therefrom. It seems to us an anomaly Briggs v. The Light Bonts, and laid it down that “as a that different parties should be the parties to a bill of consequence of the absolute independence of every exchange according to the state of knowledge of the sovereign authority, and of the international comity party taking it, and this may possibly be a difficulty in which induces every sovereign State to respect the indethe way of the view that the dormant partner can be pendence and dignity of every other sovereign State, liable upon the bill given by the ostensible partner for his each and every one declines to exercise by means of its private purposes.
courts any of its territorial jurisdiction over the person
of any Sovereign or ambassador of any other State, or The Social Science Association have received from the
over the public property of any State which is destined president of the Juristic Society of Berlin a communica
to public use, or over the property of any ambassador, tion in reference to the prize of 6,900 marks to be offered though such Sovereign, ambassador, or property be
within its territory, and, therefore, but for the common in the year 1882 for an essay on “The Formulæ in the Perpetual Edict of Hadrian, in their Wording and Con
agreement, subject to its jurisdiction." nection.” The Savigny Foundation is a fund subscribed in commemoration of the great lawyer, Von Savigny, the interest of which is applied every two years in a prize
BILLS OF SALE. for an essay on a legal subject, the adjudicators being (National Mercantile Bank v. Hampson, Q.B.D., 28 the Imperial or Royal Academies of Sciences of Vienna, W. R. 424; Taylor v. McKeand & Co., C.P.D., 28 Munich, and Berlin, in rotation. The competition, from
W. R. 628.) which only the ordinary home members of the Royal It is odd that in the first of these cases it should have Bavarian Academy are excluded, is confined to no been thought open to doubt that a bill of sale of all his nationality. The essays, which must be written in growing crops, goods, chattels, and effects, given by a Latin, German, English, French, or Italian, must be farmer and dealer, implied an authority to carry on his sent in by the 28th of March, 1882, addressed to the trade, and to sell in the ordinary course of such trade. Royal Bavarian Academy of Sciences, and bearing, It would obviously be as much opposed to the interests instead of the author's name, a motto, repeated in a of the grantee of the bill of sale as of the grantor not closed envelope containing the author's name.
to imply such a power, and the court had no difficulty
in deciding in favour of the power. But the sale must, Here a good index is very valuable, and the book appears of course, be bona fide and in the ordinary course of to us to be excellent in that respect. In order fairly to business; hence, in the second case, where a jury in an judge of the book it is necessary to have regard to its action by the grantee of a bill of sale for wrongful con scope. Many cases of negligence arise out of very special version had found that the sale by the grantor was contractual relations and matters of business, such as fraudulent and not in the ordinary course of business, shipping and other mercantile matters. It was beyond the court held that the plaintiff must succeed. The the scope of the book to go into these matters at any case deserves notice as showing the advantage to the length. The more immediate object of the work, as we bench and the profession of the so-called "unauthorized" gather from the author's account of it, is to afford & reports. “I am aware," said Lord Coleridge, in deliver. ready means of reference to the law and the authorities ing judgment, “that in the report of the National on the subject of negligence with regard to the more Mercantile Bank v. Hampson in the Law Reports, the ordinary circumstances and relations of life. It seems to words in the ordinary course of his trade' do not us, so far as we can judge, that the author has performed appear, but I may say that I feel sure that the WEEKLY his task with judgment and skill, bearing in mind the REPORTER is more accurate in that respect for two object at which he aimed. We may add a word of com. reasons : (1) because I think it is evident from the rest mendation for a device which the author has adopted. of the reasoning of Mr, Justice Lush; and (2) because He cites the authorities for the propositions in the text it says in the statement of defence that the defendant in footnotes in the usual way, but in citing a case he bought them in the ordinary course of his business,' adds a few words indicating its subject-matter, such as and that it was the ordinary course of Seaman (the “scaffolding in pit obstructing ventilation," "shaft of grantor) in such business to make such sale.' I have mine," "machine left near hoarding in dangerous posireally no doubt that my brother Lush did use the words tion,” &c. This appears likely to be useful. It gives an in question.” It appears not improbable that if the report intimation to any one searching for authorities whether in the WEEKLY REPORTER had been before the solicitors the case in question is likely to be in point. and counsel in Taylor v. McKeand & Co, that action would never have been brought.
General Correspondence. Rebie ws.
THE BILLS OF SALE ACT AMENDMENT NEGLIGENCE.
BILL. A TREATISE ON THE LAW OF NEGLIGENCE. By HORACE [To the Editor of the Solicitors' Journal.] SMITH, B.A. Stevens & Sons.
Sir,-I am glad you have devoted some space to & There is no topic which is more frequently involved in consideration of the above-named Bill. litigation of various descriptions than that which forms There is certainly a mistake in the preamble of the the subject of this treatise. The law of negligence Bill, for instead of reading “Whereas it is expedient to is, however, a topic which it is almost impossible to amend the Bills of Sale Act," it ought to read “Whereas reduce within accurate general propositions. Our own it is expedient to abolish bills of sale,” for the latter law, as well as the Roman law, upon which is largely will probably be its effect should it become law. The founded in this respect, has distinguished between the provisions for making a bill of sale void if the donor degrees of care rendered obligatory by different classes commit an act of bankruptcy within a certain time after of relations; and to a very considerable extent the classi. the execution of the bill, and for requiring every bill of fication adopted by Mr. Horace Smith depends upon these sale to be advertised in the London Gazette, are monstrous. distinctions. There are difficulties connected with such a I believe the desire of the commercial community, as remode of classification, in which distinctions depend on presented by the Association of Chambers of Commerce, is matter of degree. But all subjects do not admit of a to prevent traders from giving bills of sale upon trade perfectly satisfactory logical classification ; and though stocks and property of a shifting nature which is not we were at first doubtful whether this mode of arrange paid for. There is nothing objectionable in this, and in ment was good, we are not sure that a better one could order to put such a desirable restriction on bills of sale, have been adopted. The three principal divisions adopted all that is required is a provision that the grantor of a are neglect of duties requiring ordinary care,
more than bill of sale should, at the time of its execution, make a ordinary care, and less than ordinary care. Under each statutory declaration before the solicitor who attests head come a variety of subordinate heads, which may be such execution that the goods comprised in the security said to constitute the species of the genus—that is to are then the bona fide property of the grantor, and that say, the various classes of cases in which the particular he is not indebted to any person in respect of the degree of care is required.
purchase-money of any part of such goods. The definition given of negligence is, perhaps, as suc This would prevent traders from giving bills of sale cessful as any definition could be. “Negligence in law upon unpaid-for stocks-in-trade, but would not affect is a breach of duty unintentional and proximately pro the right of a private individual to give a bill of sale on ducing injury to another possessing equal rights." The his goods and chattels, while the provisions of the Bill author elaborately justifies each of the terms of the under consideration would practically abolish such & definition. To some part of this definition we could find legitimate security. objections. We doubt whether it is essential that the I hope your attention will also be given to another breach of duty should be unintentional. A man may Bill before Parliament, also introduced at the instance break a duty and he may intend to break it, and yet we of the Associated Chambers of Commerce-riz., " A Bill think it may be negligence in law. It seems to us that to Amend the Bankruptcy Act, 1869." The Chambers the idea really intended to be conveyed is that he does of Commerce, and other mercantile bodies, are anxious not intend the consequences.
The observations of the to secure this session some sort of amendment of the author on the
words “ possessing equal rights," as a part existing bankruptcy laws, but I have no hesitation in of the definition, are interesting, but to our mind the idea saying that should this Bill become law, it Fould in involved is too abstract and metaphysical to afford much many respects make matters worse than they are at practical test in judging of the existence of negligence. present. I cannot but think that the inconsistencies It seems to us, however, that legal definitions can seldom and anomalies which are apparent to anyone giving a be perfect.
critical consideration to these Bills, must be attributed There are two uses of a work of this nature. It is to the carelessness or incompetency of the draftsmau. useful, not only as a treatise by way of instruction in principles, but also as a means of discovering
. I members of Parliament whose names are associated with It cannot be supposed that Mr. Whitwell
, and the other
his in these matters, can be cognizant of the effect of many of the provisions of tbe Bills.
Cases of the Week. London, July 10.
LIQUIDATION BY ARRANGEMENT-SUBSEQUENT RESOLUACKNOWLEDGMENT OF DEEDS BY
TION OF CREDITORS TO ACCEPT COMPOSITION— TAXATION OF MARRIED WOMEN.
TRUSTEE'S CHARGES — JURISDICTION-BANKRUPTCY ACT, [To the Editor of the Solicitors' Journal.)
1869, s. 28-BANKRUPTCY RULES, 1870, RR. 108, 278. Sir, -I think the time has come when the nonsense In a case of Ex parte Ranby, before the Court of Appeal on (for it is nothing else) of acknowledging deeds by married the 3rd inst., & qnestion arose as to the jurisdiction of the women may be dispensed with, and I am glad to see by the court to direct a taxation of the charges of the trustee in a report of the committee of the Provincial Law Societies,
liquidation. After the creditors of a liquidating debtor bad clause 30, in your paper of the 5th inst., that they
resolved upon a liquidation by arrangement, and had appointed are taking the matter up. Their recommendation, how.
a trustee, the debtor, under the provisions of section 28 of the
Bankruptcy Act, 1869, offered to pay the creditors a comever, does not go far enough, as it proposes to retain
position of 6s. 8d. in the pound. The trustee then the special commissioners—the present chief source of
summoned a meeting of the creditors, and it was resolved to difficulty and expense.
accept the debtor's offer, and the resolutions were approved I hope we shall soon live to see the day when the laws and confirmed by the court. They provided that the comrelating to married women will be abolished, and women position should be paid in three instalments, to be secured by shall be able to sign deeds and dispose of their property promissory notes, and that the debtor should also pay (before as if unmarried. Speaking from a tolerably long and exten. the date of the confirmation of the scheme) all costs, sive experience, I am satisfied it would be the best thing | charges, and expenses of solicitors, receiver, and trustee to do, but until it is done [ submit that the present incurred in relation to the settlement of his affairs and of the system should be abolished in toto, and that every neces.
scheme. The discharge of the debtor was to be granted, and sary security will be given to married women by pro.
the liquidation closed, so soon as he should have given effect viding for a certificate in the margin of deeds, as sug.
to the resolutions, and the trustee should bave certified in gested in clause 30 of the report, but signed only by the
writing that he had done so. The trustee made out an
account of his costs and other charges and expenses, inwoman and any solicitor specially designated by her,
cluding his remuneration, and it was paid by means and who may very properly be the solicitor who prepares of what he had received from the proceeds of the the deed.
debtor's business, and some money wbich was paid to him The present system has become a farce, and not one by the debtor. The promissory notes were also delivered to woman in a hundred understands it. The expense is a the creditors. Some months afterwards the trustee's account serious obstacle to the disposal of property, and it was audited and approved by the committee of inspection frequently happens that we do not get the office copies who had been appointed when the liquidation was resolved of the certificate, for six months, during which time the upon. After this bad been done the debtor, wbo was dis. property may have changed hands several times ; nor,
satisfied with the trustee's charges, applied to the court for an for the life of me, can I see why the fact of a married
order that an account should be taken of the trustee's woman having executed a deed of the most strictly pri.
receipts and disbursements, and that the balance (if any) vate character should be made a matter of public record.!
which might be found due from him might be paid to tho
debtor. The registrar, in the first instance, referred it June 8,
AN OLD PRACTITIONER.
to tbe taxing master to tax the trustee's charges, and ad
journed the hearing of the application. But, when the A LONG-LOOKED-FOR WINDFALL.
matter came before the taxing master, he was of opinion [To the Editor of the Solicitors' Journal.]
that, as the account had been certified by the committee of Sir,-In 1823 a barrister named White bequeathed inspection, he had no power to tax it. q'he motion was the bulk of his property to the trustees of the British then re-heard by the registrar, and he dismissed it, but it did Museum, subject to the life interest of his widow. It not clearly appear whether he did so because he thought that was not until last year (fifty-seven years after the be- he had no jurisdiction in the matter, or because he con. quest) that the widow died, but the amount-about
sidered the charges in the account proper. The Court of Ap£65,000-has now been handed over, and the trustees
peal (JAMES, COTTON, and THESIGER, L.JJ.) held that, on the have made a beginning towards utilizing the same for
confirmation of the scheme, the functions of the committee
of inspection came to an end, and that, consequently, their museum purposes.
approval of the account bad no effect. The court bad, therefore, I have not come across a similar bequest by a barris.
jurisdiction to tax the account. And the appeal was ordered ter, and you may like to note the case.
to stand over for the purpose of ascertaining from the regisJune 7.
trar the ground of bis decision.-SOLICITORS, Berry & Binns ;
Phelps, Sidgwick, & Biddle.
BILL OF SALE-APPARENT POSSESSION-FRAUDULENT the English with respect to the extent to which it PREFERENCE-BANKRUPTCY Act, 1869, s. 92.-Ip a case recognizes a right of property in a name. Connected of Ex parte Symmons, before the Court of Appeal on the with a business a name may become a valuable property | 3rd ingl., the question arose whether tbe grantee of an in England, but apart from such a connection it has been onregistered bill of sale, who had obtained actual possession laid down that there can be no property therein. In the of a part of the goods comprised in it, and bad removed case, however, to which we refer, the representatives of a them out of the apparent possession of the grantor, before former conductor of an orchestra were held to have a the latter filed a liquidation petition, could be deprived of sufficient interest in his name to prevent its continued the goods which he bad thus obtained, beoanse he took use by the lessee of the concert and ball-room at which | possession of them in consequence of the debtor's telling he had been accustomed to preside, although, for
bim that he was in pecuniary difficulties. The grantee many years the room had been commonly known and I had joined with the graptor in signing a promissory note spoken of as the “Salle Valentino." For many years,
as his surety, and the bill of sale was given as a security
against bis liability on the note. The bill of sale was not in fact, the name had been placed on the front of the
registered. The day before the note fell due the grantor room, and on the various articles belonging to the pro.
told the grantee tbat be should not be able to meet it, and prietors, without any objection ever being made, but the
that he was in pecuniary difficulties, and advised him to court nevertheless restrained the lessee from continuing
| do what was legal in the matter. The grantee was under to use the name, and gave him a remedy over against
the impression that, as the bill of sale had not been his lessor, who had leased the premises to bim under the | registered, be was not entitled to seize the goods comprised name in question, by reducing the rent to correspond to in it. And it was arranged that some of the artioles which the loss incurred by having to discontinue the use of the were comprised in tbe bill of sale and wbich were seleoted popular name.
by the grantee, should be invoiced to him as a purohaser,
and sent to him by the grantor. This was done, before the Court of Appeal. The adgment at the trial, as and & receipt for the parohase-money was signed by drawn up, contained no declaration of the title of the the grantor. But no money passed, or was intended Crown the south-east part of the rectangle, and to pass, it being intended that the purchase-money consequently it was open
the Court of Appeal should be set off against the grantee's liability on the (though the time for appealing from the judgment promissory note. The grantee paid the note when it be had expired) to support the findiog as to the damages, either came due, and a few days afterwards the grantor filed a on the ground that the Crown had acquired a copyhold title, liquidation petition, and was altimately adjudicated a or on the ground that it had acquired a freehold title to the bankrupt. When the petition was filed the goods wbich south-east part. The court (JAMES, COTTON, and TU ESIGER, had been sent to the grantee remained in his possession, L.JJ.) held that under the particular circumstances of the and were not in the apparent possesion of the grantor,
case the Crown must be taken to have acquired a freehold Bacon, C.J., beld that the transantion by which the
title, and on this ground they dismissed the appeal. And, grantee had obtained possession of the goods amounted to though it was unnecessary to decide the point, they also a fraudulent preference, and he ordered the grantee to
intimated an opinion that the principle of the decisions as return the goods to the trustee, or to pay the value of
to encroachments by leaseholders does not apply as between them. The Court of Appeal (JAMES, Cotton, and Thes
the lord of a manor and his copyhold tenant.-SOLICITORS IGER, L.JJ.) reversed this decision,
W. Tindal Perkins; 1. F. Stokes. property in the goods had passed to the grantee by the bill of sale, and his title to them could not be impeached under MORTGAGE—CONSOLIDATION-DEFAULT UPON ONE MORT. the Bills of Sale Act, because they were not in the apparent GAGE ONLY.-Ou the 8th inst. the Court of Appeal (JAMES, possession of the bankrupt at the time when the act of Cotton, and THESIGER, L.JJ.) reversed the decision of bankruptoy was committed. It did not make any difference
Hall, V.C., in the case of Cummins v. Fletcher (28 W. R. that the grantee bad obtained possession of the goods by 272). The question was as to the right of a mortgagee means of a transaction which would have been a fraudulent to consolidate two mortgages upon different properties of preference, if there bad been no bill of sale.-SOLICITORS,
the same mortgagor. One of the mortgages was executed C. J. Mander ; Fletcher, St. Paul, f. Co.
in 1871; the other was executed in 1874. Both of them were given to a building society, and provided for the pay.
ment of the principal and interest by instalmente. DeCOPYHOLDN-ENCROACHMENT BY TENANT ON WASTE- fault had been made in payment of the instalmente pasNATURE OF TITLE ACQUIRED.-In a case of The Attorney-able under the mortgage of 1874, bat po default had been General v. Tomline, before the Conrt of Appeal on the 4th made in respect of the mortgage of 1871. The mortgagees inst., the question was raised whether, when & copyhold claimed the right to consolidate their two mortgager, and tenant encroaches on the waste of the manor, he acquires a iosisted that the mortgage of 1871, which was a more than copyhold or a freehold title to the land the subject of the sufficient security, could not be redeemed except on the encroachment. The action was brought by the Attorney terms of the mortgage of 1874, which was insufficient, General, on behalf of the Crown, to restrain the lord of a manor being also redeemed. Hall, V.C., held that the right to from digging for coprolites under a portion of the inclosure consolidate existed. The Court of Appeal held that the surrounding a martello tower, which was in the possession of doctrine of consolidation had no application when there the Secretary of State for War. The inclosure was of a was no default opon one of the two mortgages. JAMES, rectangular shape, and may be considered as divided by a L.J., said that consolidation is the condition wbich a court diagonal line into two parts, which may be described as the of equity imposes on a mortgagor who invokes its aid to north-west and south-east parts of the rectangle. The relieve him from the legal consequences of his default. If digging complained of had taken place in the south-east he had not committed defaolt, he was entitled at law part. The north-west part was in June, 1809, surrendered to the reconveyance of his estate, and he did not need the for value to a tepant, in trust for the Crown. There was assistance of a court of equity, and that court had do evidence that in 1819 both parts formed one inclosure, right to impose any condition.-SOLICITORS, J. Crowdy do surrounded with one fence, and occupied by the Crown Son; Wilde, Berger, f.Co. as the site and inclosure of a martello tower, the tower stand. ing on the north-west part. There were to be found on the court rolls of the manor successive admissions of tenants POWER OF APPOINTMENT EXERCISE - GENERAL BEon behalf of the Crown to the north-west part, but the
WILL-CONTRARY INTENTION-WILLS Act, Crown could show nothing but a possessory title to the s. 27.-On the 7th inst. the Court of Appeal (JAMES, south-east part, that possession being traced back
COTTON, and THESIGER, L.JJ.) affirmed the decision of to 1819. But 'in November, 1808, the then lord of Bacon, V.C., in Maddick v. Marks (28 W. R. 342). The the manor had granted a licence to the then governor question was whether a general bequest in a will operated of a fort in the neighbourhood to inclose the south as an exercise of a power of appointment by deed or will east part, which was then waste of the manor, to hold reserved to the testator in a settlement of personal es to him during his life, or so long as he should continue to tate. The settlement was a voluntary one, executed by fill the office of governor. He ceased to hold that office in the testator himself in June, 1866. The will was dated 1811. He bad used the land thus inclosed as a garden. in September, 1871. It contained no reference to the power, There was nothing to show the history of the south-east part between 1811 and 1819, when it was, as already stated, personal estate.
but there was a bequest of the residue of the testator's
The testator, in December, 1873, made a shown to have been in the possession of the Crown as part codicil
to his will
, in which he referred to both the will and of the inclosure of the tower. Under these circumstacces the settiement, but did not revoke the will.
It was con Fry, J., held that the Crown had acquired a copyhold title tended that the reference to the settlement in the codicil to the south-east part of the rectangle. He was of opioion showed that the testator treated it as still subsisting, and that the principle of the cases in which it has been held that thus manifested an intention that its provisions should not a leasehold tenant who encroaches on waste land adjoining be defeated by the residuary bequest in the will. Bacon, his tenement, does so for the benefit of his landlord, and v.C., held that there was no manifestation of a "contrar! that the encroachment becomes an accretion to his original intention," and that the power had been exercised by the holding, applies equally as between the lord of a manor and will, and this decision was affirmed by the Court of Appeal
. bis copybold tenant (vide 21 SOLICITORS' JOURNAL, 559, 25 Their lordships intimated their disagreement with a paso W. R. 803, L. R. 5 Cb. D. 750). And his lordship held the sage in Lord St. Leonards on Powers (8th ed., p. 305) in coprolites are minerals, and consequently that the lord of the manor could not dig for them (though they were bis prop
which he expresses his approval of the decision in Moss F.
Harter (2 W. R. 540, 2 s. & G. 458).-SOLICITORS, Wilkin. erty) under a copybold tenement without the consent of the son f Son; Phillips & Son. tenant. And he granted an injunction to restrain the defendant from digging under the south-east part of the rectangle, and directed an inquiry as to damages. When the chief clerk
PRACTICE - DISCOVERY - RIGAT had made his certificate the defendant objected that a sufficient COUNTER-CLAIM TO INTERROGATE PLAINTIFF IN ORIGINAL deduction had not been made from the gross proceeds of the
ACTION-JUDICATURE ACT, 1873, ss. 24 (SUB-SECTION 3) 40 sale of the coprolites, and he moved to vary the certificate. -Ord. 16, RR. 13, 17--21-ORD, 22, RR. 5—9-ORD. SI, Fry J, refused the application, and it was then renewed R. 1.-In a case of Molloy v. Kilby, belore the Court of
OF DEFENDANT TO
Appeal on the 9th inst., the question was raised whether & be a miscarriage in the proceedings, or vexations conperson, who is made a co-defendant to a counter-claim with duct on a plaintiff's part, or in the mode of conducting the plaintiff in the original action, is entitled to deliver the proceedings suficient to deprive him of his costs. interrogatories to the plaiotiff. The co-defendant to the Where a man asserted a legal right, and the defendant counter-claim claimed the property wbich was the subject of simply said if he had known he would not have infringed the action adversely to the plaintiff, but he had not been that legal right, that, in his opinion, was not safficient to made a party to the action. It was argued that, though the deprive him of his costs ; and according to section 17 of the defendant was not strictly an“ opposite" party to the plain 5 & 6 Viot. o. 45, it was an offence to import pirated works, tiff, yet he was opposite in interest to him, and was, there and, therefore, people who imported such things did so at fore, entitled, by virtue of rule 1 of order 31, to obtain dis. their own peril. There was nothing said in the section as covery from him by means of interrogatories. Add reliance to knowledge on the part of the offender, and he must was placed on the decision in McAllister v. Bishop of look out that the books he imported were not piracies. Rochester (28 W. R. 584, L. R. 5 0. P. D. 194), that the The defendants in the present case had imported certain plaintiff in an action is entitled, under rule 11 of order 31, to pirated works, and had thereby, in his opinion, committed discovery of documents by a person on whom a third-party an unlawful aot, and the plaintiff could sne them without notice bas been served, and who has entered an appearance any notice. The giving them notice was no doubt an act of in the action. The Court of Appeal (JESSEL, M.R., and courtesy, but was wholly unnecessary to establish an COTTON and THESIGER, LJJ.) affirmed the order of Hall, offence under the section. The defendants no doubt did V.C., refusing to allow the defendant to the counter not intend to infringe the copyright by selling, but their claim to interrogate his co-defendant, the plaintiff offence was the receiving for sale, and the costs, under the in the original action. JESSEL, M.R., said that the circumstances, must be given as a matter of course to the answer to the application was that there was no issue plaintiff. In his opinion courts of equity had always had the raised between the applicant and the original plaintiff, and power of preventing a threatened illegal act by granting his lordship was at a loss to imagine any interpretation of an injapotion, but at all events, under the Judioature Aot, the words “ opposite party" which would include a 00 he certainly considered they had such a jurisdiction. Defen. defendant. Oo-defendants were, 80 to say, side by side dants frequently had the idea they could escape paying parties, not opposite parties. If a defendant to a counter the costs of an action merely because they did not intend claim desired to interrogate the plaintiff in the original to do wrong, but somebody must pay the costs, and he did action, and had a proper case, he could apply to the court not see who else bat the defendant could pay them.under rule 13 of order 16 to be made a defendant to the SOLICITORS, Alfred Hicks, f Arnold ; Merriman, Pike, f original action, and, if he was made a defendant to tbat | Merriman, action, he would have a right, as an “opposite party,” to interrogate the plaintiff. COTTON, LJ., said that the question really was wbether one co-defendant to an action |
PRACTICE-COSTS AS BETWEEN SOLICITOR AND CLIENT had a right to interrogate another co-defendent. Counter. | ADMINISTRATION ACTION—CREDITOR'S ACTION-CREDITOR claims were allowed for the purpose of saving expense, bnt | HAVING CONDUCT.-In a case of Re Richardson, Richardson & ovunter-claim was really an independent action. The | v. Richardson, before the Master of the Rolls on the 7ch inst., plaintiff was not plaintiff in that actior, but in another
the action was commenced by the administrator of an estate action. Opposite parties wore parties between whom
against the sole next of kin for udministration. The estate 188des had been raised, parties who were face to face. I turned out to be insufficient for the payment of debts and the a third party was brought in by notice and became an
action was not prosecuted by the plaintiff. The conduct of the opposite party to the plaintiff, then no doubt the right to
action was subsequently given to a creditor, and he now applied interrogate wonld exist. T ESIGER, L.J., said that in the
on further consideration for his costs as between solicitor and case cited a litigation bad originated between the plaintiff
client. It was contended that the creditor having the conduct and tbe third parties; they had become “opposite
was in the position of a creditor instituting an administration parties."-SOLICITORS, Boxall & Boxall ; W. Lane O'Neill.
action, in which case costs bad been allowed on that footing. It was also argued that even in an action instituted by a
beneficiary, where the assets were deficient, the plaintiff was COPYRIGHT - INFRINGEMENT - IMPORTATION - SALE - entitled to his costs as between solicitor and client, and COSTS OF ACTION-KNOWLEDGE OF PIRACY-COPYRIGHT ACT | reliance was placed upon a case of Re Burrell (9 Eq. 443). (5&6 Vict. c. 45),'s. 17.--In a case of Cooper v. Whittingham,
JESSEL, M.R., was of opinion that Re Burrell was before the Master of the Rolls on the 4th inst., a question arose not correctly decided on the point as to costs. The correct whether a defendant ought to pay the costs of an action under rule had been laid down by Kindersley, V.C., in Thomas v. the following circumstances. The defendants were agents for
Jones (1 Dr. & Sm. 134), in an elaborate judgment, and the some publishers in America of a monthly magazine. The principle there laid down was that in a creditor's suit where plaiptiff was proprietor of a similar magazine in England, the assets were deficient, it being in fact his own fund, the and received a copy of the American magazine, prior to its
costs would be allowed as between solicitor and client. That being sent to the defendants, which contained some pirated rule did not apply to a suit instituted by a residuary legateo letterpress and drawings from his magazine. On this the
and à fortiori to the case of a next of kin, as the fund where plaintiff gave notice to the defendants of the fact of the piracy assets were deficient to pay debts could not be said to be the and not to sell any of the copies of the magazine when they
plaintiff's fund. Io Re Burrell that case had not been cited arrived. The defendants on the arrival of the parcel of maga nor another case of Wetenhall v. Dennis (12 W. R. 66), zines saw that it contained piracies from the plaintiff's publi.
following Thomas v. Jones, and James, V.C., could certainly cation, and determined not to sell or publish any of the copies. not have intended to overrule both those cases. In the preOn the same day of the arrival, the defendants were served with sent case, as the administrator had declined to go on with the a copy of the writ in the action and an interim injonction not action, and the conduct had been given to a creditor, it in to import, sell, cr publish any of the pirated magazines. fact became a creditor's action, and the principle as laid down The defendants subsequently gave an undertaking in the
in Thomas v. Jones applied, and, therefore, the plaintiff would terms asked for and put in a defence stating the above facts. have his costs of the action as between solicitor and client. On motion for judgment they contended they ought not to The defendant, the next of kin, would have only party and pay the costs of the action. Section 17 of 15e 5 & 6 Vict. c. party costs.-SOLICITORS, Pritchard, Englefield, f Co.; 45, is in part as follows: “And be it enacted that after the Miller, Smith, & Bell; Pawle g Fearon. passing of this Act it shall not be lawful for any person not being the proprietor of the copyright, or some person author. ized by him, to import into any part of the United Kingdom, PRACTICE-OBJECTION OF WANT OF PARTIES-NOTICE TO orinto any other part of the British dominions for sale or hire, any THIRD PARTY-Costs-ORD. 16, RR. 17, 19.-In a case of printed book first composed or written or printed or published in The Commissioners of the Exhibition of 1851 v. The Royal any part ofthe United Kingdom wherein there shall be copyright Horticultural Society, before Frs, J., on the 5th jast., the and reprinted in any country or place whatsoever out of the defendants by their statement of defence had taken the obBritish dominions." JESSEL, M. R., said that when a plain jection that some other persons ought to be parties to the tiff established a legal right, and no misconduct or omission action, but they did not before the trial make any application
action, but they did not before the or neglect on his part sufficient to deprive him of his costs to have those persons brought before the court. At the trial were shown, he was entitled to his costs as a matter of right, the defendants' counsel in opening their case insisted on the Such misconduct might be of any pature, or there might objection, and Fry, J., was of opinion that rule 17 of order