Page images

accordingly it was ordered to be paid to her. (in ve Middleton's Trusts.) In the case before the Master of the Rolls, a gentleman had given a sum in trust for a religious charity, and, by mistake, the name of a different one was inserted in the deed, which was ordered to be cancelled on that ground. (Hill v. Pease)

The Vice-Chancellor had another curious case to deal with: an application by a shipowner against a society of underwriters, to prevent their marking his vessel as one of an inferior class. But the Vice-Chancellor refused the application, considering that the Association had the right to make any entry which was a bona fide expression of honest opinion. (Clover. v. Ryder, Law Journal notes.).

Vice-Chancellor Bacon, who sat a great part of Term, had several sewage cases before him. One was the case of the Whitworth Board of Health, who, strange to say, were charged with a practice as to sewage injurious to health. The Board were under an injunction restraining them from discharging their sewage in such a manner as to cause a nuisance. The injunction was granted on condition that it should not be put in force for a period. There was an application to obtain an extension of that period for six months. The Vice-Chancellor, however, considered that nothing had been actually done by the Board, and refused to extend the time beyond three months, when they could apply again, and show what steps they should have taken in the meantime. (Attorney-General v. Whitworth Local Board of Health.) In the other case an Oyster Company had filed a bill against the Corporation of Newport, for polluting their fishery by the discharge of sewage.

The case occupied several days, and the evidence was voluminous; but the ViceChancellor did not consider the case made out, and dismissed the Bill. (Isle of Wight Oyster Fishery Company, v. the Corporation of Newport.)

In another case, which welf illustrates the efficiency of Chancery jurisdiction, the bill was filed in March last for an injunıction to restrian the defendants from causing sewage ten

[ocr errors][ocr errors][merged small][ocr errors][ocr errors]

flow into a brook which passes across the land of the plaintiff, unless it is so purified and deodorized as not to be a nuisance. On the 13th of April the injunction was granted, and meanwhile the court allowed the defendants time to complete works which they said would obviate the nuisance. On the 30th of June the time was enlarged until the 13th of November, and then there was an application to enlarge the time until November next year. The Vice-Chancellor, being of opinion that the evidence adduced in support of the application showed that the defendants had exerted themselves to do the necessary work, granted an extension of time for four months, they undertaking to complete the works and to cleanse the brook. (Broughton v. the Crewe Local Board.)

The Vice-Chancellor was called upon to exercise the common, but important head of equitable jurisdiction, under which the negotiation of Bills, of which the consideration has failed, is restrained, and their re-delivery is ordered. One mercantile firm had remitted acceptances to another to be covered by bills of lading, which had not been sent. The Vice-Chancellor granted an acquisition to restrain the negotiation of the bill until the hearing. (Sternkopff v. Kruger.)

In one case the question was as to the effect arbitration clause in a policy of insurance effected in a mutual insurance Society. The clause was that the decision of the committee should be binding upon the members unless the party claiming required an arbitration, and then, that if any difference should arise between the committee and a member, the matter should be referred to arbitration, and that the obtaining an award should be a condition precedent to the right of a member to maintain an action or suit. The clause, it will be seen, was carefully drawn to meet the decision of the Lords in the case of Scott v, Avery, given upon what Lord Campbell justly called the

preposterous doctrine" derived from feudal times that an agreement to refer future differences to arbitration was invalid, and contrary to the policy of the law, which, if ever

of an

law, had certainly become obsolete when the Legislature, in the 3 and 4 Will. IV c. 42, expressly provided that agreements. for reference to arbitration should be rendered irrevocable by being made rules of Court; an enactment which the Court of Queen's Bench held to apply to agreements for reference of future differences as well as present, which of course involved that the old doctrine was obsolete. This view was taken by Lord St. Leonard while Chancellor in Ireland, but strange to say, the judges in Scott v. Avery were unaware of either of these decisions, and so upheld the ancient doctrine ; distinguishing, however, conditions precedent, a distinction as absurd as the doctrine. However, the distinction was established and the clause in the present case was framed upon it. When the loss occurred the plaintiff gave to the secretary of the society formal notice demanding payment of the money. The committee of the society considered the claim, but decided that the plaintiff had no claim, and thereupon the plaintiff filed his bill. The Vice-Chancellor was of opinion that the arbitration clause was perfectly clear, and that this was just such a case as the rules intended to provide for. He considered that the plea was good, and that it must be allowed. (Rumbold v. Cowie.)

In a case before Vice-Chancellor Bacon a question arose which, as he observed, is of great mercantile importance. A bill of exchange was remitted in the usual way by the Bank of New Orleans to the London bank, with what were supposed to be bills of trading to cover it, but which, in fact, were forged. The London Bank sent the bill to the drawer for acceptance with the usual note that they held bills of lading to cover it. He accepted, but, on finding the forgery, refused to pay. The New Orleans Bank sued him on the bill, and he applied to Equity for relief, but the Vice-Chancellor held that that there was no ground of Equity, as there was no representation as to the validity of the bill of lading (Baxter v. Chapman.) Thus, it will be seen, " equity follows law," and legal right is never disturbed in Equity, on account


of hardship without some definite ground of equitable relief. So in a case of ejectment for non-repair and non-payment of rent, the same principle was upheld, and as the tenant could show no definite ground for relief, that as he could not show that he had substantially kept his covenants to repair and insure, the bill was answered. (Radcliffe v. Sewers, ViceChancellor Hall.) A question arose as to whether bankers had a lien on a box of securities deposited with them, not as security, but for safe custody, and the Vice-Chancellor held that they had no lien. (Leese Martin, Vice-Chancellor Hall, Law Journal Notes, 187). This was in accordance with the great case of Brandao v. Barnett, the leading case on the subject, which went to the Lords twenty years ago. (8, M. & G.)

A case occurred before Vice-Chancellor Bacon which illustrated in a striking light the superior efficiency of Equitable Chancery procedure. The case is so illustrative that extract the excellent note of it in the Law Journal Notes of Cases :

" The bill in this suit was filed to obtain a declaration that two policies of insurance were obtained by the defendant from the plaintiffs by misrepresentation and concealment, and that they might be set aside and cancelled ; and also to restrain actions at law. The defendants, however, now no longer resisted a decree to this effect, and the only question remaining undisposed of was one of costs. In 1862, the defendants effected with the plaintiffs two policies of insurance on a large shipment of goods in the ship called the Peterhoff. The defendants gave the plaintiffs to understand that the vessel was proceeding to a neutral port with a legitimate cargo, and consequently obtained the insurance at the simple peace premiums." The Peterhoff, with the goods on board, was captured by a Federal cruiser, and the goods were condemned and sold in a Prize Court as contraband of war. The defendants then, in 1865, commenced actions on each of the two policies. These actions were resisted by the plaintiffs on the ground of fraudulent concealment and misrepresentation, but the defendants still denied that the goods were contraband, or that they had any dealings with the Confederate Government. In 1866 the Court of Common Pleas directed that one action should be tried first; but, if one action went against them, the assured retained the liberty of proceeding with the other. As the first action

lasted for years, and the second action was still hanging over them, the plaintiffs in 1866 filed this bill; and they did so in order to get both policies cancelled, and also to preserve for their use on the second action, if it should ever be brought, the evidence adduced on the first trial. The action at law came on for trial nominally in 1866; but it was referred to an arbitrator to prepare a special case, and the decision was not given till August, 1871, when it was given in favour of the present plaintiffs. Even then the defendants refused to accept this decision as regarded the second policy, and the plaintiffs were therefore compelled to proceed with this suit. The question to be decided was, whether, under these circumstances, the costs of the suits should be borne by the defendants, who contended that the action having been brought in a Court of Law, that was the proper and more convenient form in which to try this case, and that they ought not to be compelled to pay the heavy expenses of the Chancery suit. They also argued that this was a mere bill for discovery, and that therefore no costs ought to be given, But Vice-Chancellor Bacon said the Company say in plain terms, that they have been cheated, and shall ask for a decree that the policies be cancelled. This is a plain equity, and ought not to be mixed up with the questions at law. The plaintiffs were liable to have an action at law brought against them, and they were driven to proceed with this suit; the correspondence shows they would willingly have given it up if they could. There must certainly be a declaration that the policies shall be cancelled. (London and Provincial Marine Company v. Seymour)

Vice-Chancellor Hall, like the other Equity Judges, had some sewage cases, and made an order restraining the Mayor and Corporation of Barnsley from polluting a river, by throwing into it the sewage of their town. (Attorney General v. The Corporation of Barnsley, Dec),

Vice-Chancellor Bacon had a case to deal with which raised the question whether a co-trustee, who had acted with good faith, or the bona fide purchaser of property should suffer from a loss occasioned by the fraud of a trustee who had removed and absconded with the purchase money. The Vice-Chancellor held the co-trustee and the purchasers liable to restore the land to the owner (Heath v. Crealock), and his judgment was a very valuable commentary on the maxim of equity that the court will not assist a claim against a bona

« PreviousContinue »