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would destroy the railway. Whether the word " minerals," when used in conjunction with "mines," should or should not be confined to such minerals as are found in mines, or can be got by underground workings, is by no means clear. In Darvill v. Roper (3 W. R. 467, 3 Drew. 294), Kindcrslcy, V.C., restricted the word "minerals" to such substances as arc worked by means of mines. In that case a distinction was drawn between the scientific meaning of the word, which it was said would include every portion of the soil except vegetable matter; another mcening—namely, any metalliferous substance; and a third meaning, including all such substances as are dug out of the earth by means of a mine; and it was held that the third sense expressed the intention of the parties in the deeds in question. In Bell v. Wilson (14 W. R. 493, L. R. 1 Ch. 303), the same judge had refused to include freestone in the word "minerals." The Lords Justices held that freestone was a mineral, but that a reservation in a grant of all " mines or seams of coal, and other mines, metals, or minerals," would not give the grantor liberty to get the freestone by open quarrying or otherwise than by an underground mine. In Hext v. QUI a reservation of "mines and minerals" was held to include china-clay, but it was also held that the owner could not get it in such a way as to destroy or seriously injure the surface. In Attorney- General for the Isle of Man v. Mylchreest (L. R. 4 App. 294), the word "minerals" in a grant from the Crown was held not to include clay and sand. On the other hand, in The Midland Railway Company v. Checkley (15 \V. R. 671, L. R. 4 Eq. 19), the proprietors of a canal were held to be bound to pay compensation to the owner of an open quarry, whom they prevented from working his quarry so as to injure their canal, under the clause in the Canal Act for the compensation of owners prevented from working their mines and minerals.
In Midland Railway Company v. The Haunchwood Brick and Tile Company, Kay, J., after observing that the meaning of the words " mines and minerals" may be varied largely by the context, proceeded very carefully to arrive at their signification in the 77th section of the Railways Clauses Act by an examination of the surrounding sections. He said that the words, "mines of coal, ironstone, slate, or other minerals," might be read as meaning mines of coal, of ironstone, of slate, or of other minerals, restricting "minerals" to substances found in mines, or the word "mines" might be confined to coal. The former construction would seem favoured by the words at the end of the same section, where "mines" is used generally to describe all that is mentioned in the former part of the clause, and also by the 78th section, where the words "mines" and "mines and minerals" are used apparently indiscriminately to express the same thing. It is r.oticeablc also that these sections are prefaced with the words, "with respect to mines lying under or near the railway "; but Kay, J., concludes that even if "mines of" and "minerals " are to be read together, the word " mines" must include open workings by quarrying and otherwise. If that were not so, the railway would have no power to inspect or prevent open workings within forty yards of their railway, which might have the effect of destroying it. This interpretation is borne out by the Scotch case of Jamieson v. The North British Company (6 Sc. L. R. 188), which is almost the converse of The Midland Railway Company v. The Haunchwood Brick and Tile Company under the Scotch Railways Companies Act, and it was also adopted in Dixon v. The Caledonian Railway Company (29 W. R. 249, L. R. 6 App. 820).
In the Railways Clauses Act, then, it seems clear that the words "mines and minerals" include open workings; but where these words are used elsewhere, it appears doubtful whether, apart from anything to show a contrary intention, they would have so wide a meaning. The word "minerals" may mean as Mellish, L.J., said—anything which can be got from underneath the surface of the earth for the purpose of profit; but looking at Darvill v. Roper, Bell v. Wilson, and Hext v. QUI, a reservation of minerals will not by itself give a right to disturb the surface of the land. On the whole, where mines and minerals arc reserved in a grant, if it is probable that there are any minerals which can be got only by surface working, the grantor should not rely on the reservation alone, but should sec that words arc inserted by which he will secure for himself the right of breaking the surface.
"LANDS, TENEMENTS, AND HEREDITAMENTS."
We printed last week a letter from a distinguished correspondent, containing some remarks upon the subject which stands at the head of this article, and having reference to a former article, which will probably be in the remembrance of our readers, upon section 18 of the Conveyancing Act of 1881. Before offering any observations upon the matter of the letter, we wish to draw our correspondent's attention to a distinction which seems, in a great measure, to have escaped his notice.
He speaks of us as having "maintained that the interpretation given by the Act to the word' land' is insufficient to embrace leaseholds for years." There ore two senses in which the word "insufficient" might here be understood. It might mean that the words of the interpretation in question are, in propriety of speech, insufficient for the purpose mentioned; and, therefore, tbat they cannot, with any propriety, be used to express the meaning sought to be put upon them. We certainly think that, in this sense, the words in question are insufficient; and we do not find anything in our correspondent's letter to show that he is of a different opinion.
But if "insufficient" is to be taken to mean, that the courts cannot possibly contrive to force the words to bear the proposed improper meaning, we beg leave to remind our correspondent that we did not express any such opinion in the article to which he alludes. Such strange pranks have been played with legal phraseology by the makers of statutes, and the proper meanings of technical words have been thereby thrown into such confusion, that it is difficult to say what is absolutely impossible to be done, in the way of interpretation, by the dexterous citation of words improperly used.
In view of this distinction, our correspondent perhaps acted prudently in declining to "follow the reasoning" by which he says that we arrived at "this result." A great part of this reasoning was of the simplest possible character. We remarked, in effect, that the authority of all the sages of the law from time immemorial is expressly against including terms of years under the words tenements and hereditaments. We do not think that our correspondent, by following this part of our reasoning, would have come to a different conclusion. He can hardly think that terms of years (or, if he prefers the phrase, leaseholds for years) are tenements, and, therefore, we suppose, intailable within the statute De donis; or that they arc hereditaments, and, therefore, descend to the heir.
As regards the word "land," we must draw a further distinction. Our doubt was expressly grounded upon the effect of the words "of any tenure," which our correspondent omits. We gave what we think are strong reasons for supposing that it is much more difficult to bring terms of years under a phrase comprising these words, than it would be to bring them under the bare word " land."
We cannot at all concur with our correspondent in his apparent assumption, that these are mere "words of amplification," which may be omitted without affecting the sense of the passage. He seems himself to have thought that, for his purpose, their room was more desirable than their company; and we are of the same opinion. If the Conveyancing Act, like the Statute of Frauds, had used the word "land" without defining it, we should easily, by virtue of colloquial usage, have admitted terms of years to be within the phrase " a mortgagor of land." But when the word "land" is elaborately defined, and the definition is composed solely of phraseology which, according to its proper usage, might have been expressly designed to exclude terms of years, wc confess to feeling some difficulty. If our correspondent's view of the Act's meaning is correct, this elaborate definition, instead of serving any useful purpose, is a mere source ■ of confusion and obscurity. The Act would have been more easily intelligible without it.
Now we come to our correspondent's remarks upon the Statute of Frauds. He begins by referring to the statute in general terms; but he confines his argument to section 7. Had he looked at section 6, he would have found in it the express phrase," lands, tenements, and hereditaments"; which, as he is of course very well aware, has precisely the same meaning as the other phrase, "lands and tenements" which occurs in section 5 and also later on in section 6 itself. It is too well settled to need reference to cases that the phrase here does not include " leaseholds for years." The testimony of the statute is, at all events, not unanimously in our correspondent's favour.
It is true that sections 5 and G were repealed by the Wills Act, their operation having been made superfluous by the latter Act's provisions. But this fact does not seem to affect the argument. Though the statute was repealed piecemeal, it was passed as a whole; and the repealed parts seem to throw as much light as those still in force upon the meaning of the words which the statute uses.
Finally, we arrive at the 7th section itself; but we must beg leave to quote rather more of it than the slight fragment given by our correspondent. The words of the section are:—" All declarations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested," &c. The words of the interpretation in the Conveyancing Act are:—" Land ... includes land of any tenure, and tenements, and hereditaments," 4cc. We suppose that we may leave the tenements and hereditaments out of consideration; for our correspondent is not likely to contend that "leaseholds for years" are either tenements or hereditaments. Then it would seem that, in the opinion of our correspondent, the fact that "all trusts of any lands" has been held to include a "trust of leaseholds," is a strong reason why "land of any tenure" should be held to include "leaseholds." We must humbly confess that, to our apprehension, this argument does not seem to be quite conclusive.
The Statute of Frauds is notoriously one of the worst drafted Acts in the statute book. It is of evil omen that our correspondent should have been able to find nothing with which, in this respect, to compare the Conveyancing Act, except the Statute of Frauds.
At the conclusion of our previous article we said that it would give us great satisfaction if, contrary to our expectation, some method should be found to put the required construction upon section 18 of the Conveyancing Act which should be appropriate to the interpretation of highly important statutes upon highly technical subjects. It is a serious question whether the method proposed by our correspondent comes very obviously within that description.
Stone's Practice Fob Justices Of The Peace, Justices' Clerks, And Solicitors At Petty And Special Sessions, In Summary Matters, And Indictable Offences, &c. With Forms. Ninth Edition. By Walter Henry Macnamara, Esq., Barrister-at-Law, Registrar to the Railway Commissioners. Stevens & Sons; B. Sweet; W. Maxwell & Son.
The chief interest of the present edition of this well-known work arises from the insertion in it of the provisions of the Summary Jurisdiction Act, 1879. These have been carefully and succinctly stated by Mr. Macnamara. The rules made under the Act are placed under the subjects to which they relate, being chiefly grouped in the chapter relating to arrangement of the business at petty sessions and the chapter on civil debts. It may perhaps be suggested that an index showing where the different rules are to be found would be au advantage. In other respects Mr. Macnamara has brought the book down to date as regards cases and legislation.
CROWN WINDFALLS. [To the Editor of the Solicitor*' Journal.'] Sir,—A return recently presented to Parliament shows that during the year 1881 there was received by the Treasury Solicitor on behalf of the Crown, in respect of the estates of persons dying without known next of kin, the sum of £64,227 5s. lOd. Since the passing of the Tieasury Solicitor Act, 1876, the receipts have been as follows:—1877, £127,87519s. lid.; 1878, £139,769 9s. 3d.; 1879, £140,879 3s. 5d.)
1880, £58,448 13s. lid.; so that during five years more than half a million sterling has thus accrued. After payment of the Crown's share, grants to persons having claims on the bounty of the Crown, costs, &c.j there remained a balance iu hand of £177,374 5s. lOd.
These estates are only held by the Crown till legitimate claimants appear, and I would venturo to suggest that future returns might give a little fuller information, so that persons interested could without trouble obtain all necessary particulars to enable them to substantiate their claims.
The following notice was given last session :—
"Sir Herbert Maxwell.—Intestates' estates reverting to the Crown.— Return showing the total amount received on behalf of the Crown since thepassiugof " The Treasury Solicitor Act, 1876," with the names and addresses of the intestates, also the names and addresses of intestates whose estates are in course of administration, with the amount of each estate."
The return suggested would prove invaluable to the public, and the notice will, I hope, be repeated next session.
1 may add that an Act just passed transfers to the Exchequer an extraordinary " windfall"—namely, no less a sum than £143,272 lis. 2d. arising from fractions of a penny on dividends on the National Debt, it being customary not to pay fractions of a penny on Government stocks. Edward Preston.
Sir,—Referring to tho correspondence at the early part of the year and to the committee appointed to deal with this question, and to the action I successfully instituted to illustrate that irregularities could not be permitted without payment of damages, will you allow me to say that I intend to incorporate the facts in a paper at the Hull meeting, entitled " Ought the execution of writs to be removed from the office of sheriff ?" and that I shall be glad to receive from the profession particulars of any authenticated cases of complaint? Francis E. Munton.
95a, Queen 'Victoria-street,E.O., August 21.
[To the Editor of the Solicitors' Journal]
Sir,—We shall be much obliged by the opinion of yourself or any of your correspondents on the following point under the Conveyancing and Law of Property Act which has arisen, to our knowledge, iu several
A ro-conveyance of a mortgage created prior to the Act is drawn on the assumption that the statutory form applies to such a case. Section 29, of course, applies ouly to a re-conveyance of a recent mortgage; but cannot it be contended that the other sections of the Act make the statutory form practically apply to a re-conveyance of any mortgage P For instance, section 6 dispenses with the necessity for general words, section 7 (F.)does away with the covenant against incumbrances, and section 51 substitutes the words "in fee simple " for "heirs." If all these sections apply to a re-conveyance, as they appear to do, unless the interpretation clause as to a " conveyance " is not geueral enough to include a "re-conveyance," it would seem that the limitation in section 29 of the applicability of the statutory form of re-conveyance is, iu effect, no limitation at all. Subscribers.
CASES OF THE WEEK.
BEFORE THE VACATION JUDGE.
Practice—Non-payment Op Taxed Costs—Whit Op n. Pa.—Personal Service.—In the case of In re Upperton, before North, J., sitting as Vacation Judge, on the 23rd inat., a motion was made ex parte for leave to issue a writ offi. fa. against one Brailsford, who had failed to pay certain taxed costs. It appeared that the time mentioned in the order of the taxing master hid expired, bat on application to the clerk at the writ cilice, the writ of JS. fa. was refused, on the ground that the order of the taxing master bad not been personally served on the respondent. A letter from the respondent, written during the course of the proceedings in respect of which the costs were incurred, was read, to the effect that the respondent would accept any service by registered letter addressed to his country residence. It was stated that the refusal at the writ office was grounded on what was a rule of practice only. North, J., after consulting with tbe registrar, said that as an affidavit had been made proving the service of the order in the manner indicated by tbe respondent himself, he should give tbe leave now asked for.—Solicitors, Baiter, Folder, <£ Upper ion.
Land Society—Winding Up—Non-registration Of Society—Company* Act, 1862 (25 & 26 Vict. C. 89), s. 4.—In the case of In re The Belie Tut Freehold Land Society, also before North, J., on the 23rd inst., a petition was presented by a creditor for the winding up of the society. It appeared that the society was constituted as a land society by a deed dated October, 1878, and consisted of more than twenty members, but was not registered under the 4th section of the Companies Act, 1862. Under these circumstances the petition was, on the 16th inst., ordered by North, J., to stand over until the next fittings for the production of authority showing that such a society was not an association for the purpose of carrying on a business that had for its object the acquisition of gain within the meaning of the above-mentioned section of the Companies Act, and did not require to be registered. The case of Wigfeld v. Potter (45 L. T. K. S. 612) was cited, where the divisional court held that registration of a land society was unnecessary. North, J,, said that tho case cited seemed to cover the point raised, and made the usual order for a compulsory winding up,—Solicitors, Hickin & Graham; Cattarns, Jehu, f Hughes, for Younge, Wilson, st Co., Sheffield.
Practice—Receiver—Application Bt Person Not Party—Claim For Resit—Petition—Costs.—la the case of O'Hagan v. The North Wingfield Colliery Company, also before North, J., on the 23rd ins'., a receiver having been appointed in the action, a petition was present .'d by the lessor of the company, who was not a party to the action, that the receiver nvght be ordered to pay a turn due for rent, or that leave might be given to distrain. It appeared that the receiver bad, since the presentation of the petition, tendered payment of the amount claimed without costs. It was argued by the petitioner that, although the application might be made by summons or by motion or by petition, yet where the person applying was not a party to the cause, and the property over which the receiver bad been appointed was landed property, the proper mode of proceeding was by petition (Kerr on Receivers, 126-7; Richards r. Richards, John. 255). North, J., said that the method of procedure depended wholly on the nature of the case. There was no doubt that the applicant here was entitled to the order asked for, and he shonld therefore make it, but without costs, for the applicant's proper course was to have proceeded in chambers by summons.—Solicitors, Chester, Mayhew, Broome, f Griffithes, for Black, Chesterfield; W. B. Roterts; Goldring.
Company—Winding Up Petition—Allegations Op Fraud—Motion To Strike Out On Ground Op Scandal.—In the case of In re The Indian Kingston and Sandhurst Gold Mining Company [Limited), also before North, J., on the 23rd inst., a motion was made to have certain paragraphs struck out of a petition presented by contributories for the winding up of the company on the ground that it was a bubble company. The applicant had not been served with the petition, and the paragraphs complained of contained charges against the promoters of the company, and included amongst the names of the promoters the name of the applicant. It was on his behalf submitted that it conld readily be proved that he never had been a promoter. It was, on the other hand, contended by the petitioners that the paragraphs were mateiial, and that if applications of the present nature were entertained the merits of the whole petition wonld be entered into before the petition itself could actually be beard, and that this might occur upon the same petition, not once, but repeatedly. North, J., said that the applicant's case might be a bard one, and the allegations contained in the paragraphs objected to might, in fact, be untrue, but they nevertheless appeared to be relevant. This being Bo, the motion most be dismissed with costs.—Solicitors, Linhlater $ Co; Walter B. Styer.
COUNTY COURTS. HUDDER8FIELD, (Before J. W. De Lonoubville Giffabd, Esq., Judge.) Aug. 17.—Scott v. The Corporation of Huddtrsjield. Highway—Negligence—Corporation—Employment of contractor.
His Honour delivered judgment in the above case as follows:—The plaintiff In this action claims £50 damages for injury to a horse, caused by the aots of the defendants or their servants, in placing pitch upon the surface of the public streets, so as to render it dangerous and unfit for public traffic The evidence of the plaintiff and his witnesses, who were nncontradicted (as the defendants called none), showed that for some weeks prior to the 19th of October the corporation were engaged in laying down tram roads npon some of the principal streets in Hudderafield, and in course of this work bad taken up a considerable portion of the pavement and the setts. In refiling the setts the interstices were rilled up with pitch, in which operation and in melting and carrying the pitch, patches were left in several places on the surface of the highway. Prior to and on the 18lh of October, which was Tuesday, several parts of Westgste and New-street, where the workmen were engaged, were partially stopped for traffic by wooden barriers, placed so as to prevent carriages and oarts from passing over until the road was finished. On the 18ih Dr. Scott drove in his carriage down Westgate into New-street, at which time the barriers were up. On the next day, Wednesday, the 19tb, having occasion to call at Mr. King's, the chemist, whose shop is next but one to the corner formed by Westgate falling into New-street at right angles, Dr. Scott's coachman drove at a walking pace ronnd the corner, when the horse's near hind leg slipped on the surface of the street, and in attempting to recover himself the horse slipped again, and could with great difficulty be got on his feet by the coachman, who ultimately got him up and led him home. By the medical evidence which was adduced, it was proved that the horso had sustained an incurable injury, and was worth something between £5 and £15. The horse, a short time before, had been purchased unbroken for £50, and at the time of the accident was worth £75. The plaintiff proved that the setts were fixed, in whioh operation the pitch was principally required, by men working under the superintendence of the surveyor of the corporation, and
were paid for by them, but to whom the money was paid did not appear. The plaintiff had served notice on the corporation to produce the contract, if any, under which the work was done, bat the defendants declined to produce any contract. As soon as it appeared that the defendants declined to produce the contract, if any, and did not intend to go into evidence, I allowed Mr. Learoyd, who had concluded his case (Mr. Atkinson for the defendants objecting), to oil the borough surveyor, who gave evidence to the effect stated above. Some correspondence with the town clerk was read, but no contract under the seal of the corporation was produced. The defence of the corporation was threefold—first, that the plaintiff was guilty of contributory negligence, and could not recover; secondly, that no civil action could be maintained against the surveyors of highways, whioh office they held, for an acoidsnt caused by non-repair of the highway; and, thirdly, that the plaintiff had not shown that the men who did this work were servants of the corporation. They were no donbt servants of the contractor, but, if so, the corporation were not liable. With regard to the first defence, I confess I am unable to see how either in fact or law it could be maintained. Dr. Soott and his coachman, were, no doubt, aware that these repairs had been going on, but when they found the barriers and surplus stones removed without any intimation to the contrary, they assumed, as they had a right to assume, that the street was fit for publio traffic Probably the plaintiff's ooaohman assumed that he ought to drive carefully over the newly-finished street, and he appears to have done so, going round tbe corner at a walking paoe, and I fail to see what more be could do, being obliged to go round the corner to get to bis destination. On tbe facts, therefore, this contention oannot be sustained. Nor ere the defendants, I think, more forturjate on tbe point of law. It was held by tbe House of Lords in the case of Radley v. London and North-Western Railway Company (L. R. 1 App. 755), that tbongh a plaintiff may have been guilty of negligence, and though that negligence may in faot have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligenoe, have aveided tbe miaobief whioh happened, the plaintiff's negligence will not exouse him. Can there be a doubt that if the defendants had taken ordinary oare in removing the pitob, or in making it safe by putting on ashes, tbe accident would not have happened P On the second point, whioh was argued with very great ability and learning by Mr. Learoyd for the plaintiff, and also by Mr. E. T. Atkinson on behalf of the defendants, tbe defenoe also fails. It is quite true, and established by a long series of authorities, anpong whioh one of the latest is Gibson v. The Mayor of Preston (L. R. 5 Q. B, 218), that the surveyors of highwoys are not in tbac oharaoter liable in a civil action for tbe non-repair of the highway. Th:a prinoiple was laid down at a time when oorporate bodies were mnoh less common than at present; otherwise I think it very doubtful whether the rule wonld ever bave obtained at all. Indeed, in one of the earliest cases, I believe the earliest—Russell v. The Men of Devon (2 T. R. 667)—one of the grounds on whioh Lord Eenyon principally relied, in allowing the demurrer, was that the defendants were not a corporation having funds oat of wbioh the damages might be paid. But beyond donbt, in tbe present state of tbe law, neither surveyors under the Highway Aots, nor lo.al boards olothed with that offioe, are liable in a civil action for injuries sustained by reason of the non-repair of the highways. To this extent they are protected, but this protection is confined to cases of nonfeasance, suoh as nonrepair. A great number of oases have been oited on both sides in reference to this point, but I do not intend to refer to them particularly, because I think in all of them, with perhaps a single exception—viz., The Borough of Balhurst v. Slacpherson (L. R. 4 App. 268)—the distinction is uniformly maintained between damage arising from nonfeasance and damage from misfeasance. In oases of nonfeasance surveyors of highways, as snob, whether clothed with a oorporate oharaoter or not, are in a civil action unassailable; but, on the other hand, for damages arising from acts of misfeasance they have been held liable; and though clad in the impenetrable armour of the 117th section of 11 & 12 Viot. 0. 68, in Foreman v. The Mayor of Canterbury (L. R. 6 Q. B. 214), a heap of stones nsed in the repair of tbe road was left projecting into the road some five feet without light or proteotion, and, an accident having been thus occasioned, the question arose whether the local board, who were the surveyors of highways, were liable. This was clearly a case of misfeasance, and the defendants were accordingly held liable. On the other hand, in Gibson v. The Mayor of Preston, the local board were held not liable quas surveyors of the highways for misroasance. The oase was strongly relied on by the defendants, but is really no more than a late edition of the old law. White v. The Bindley Local Board (L. R. 10 Q. B. 219), appears an instanoe of the rale, and, perhaps, to some extent, the exception. The plaintiff, while riding on the highway, trod upon a grating to drain off the surface water, and the grating being faulty, gave way, and injured the horse's leg. In an action by tbe owDer for damages against the local board, it was held that though tbe defendants might not be liable as surveyors for non-repair of the highway, yet as owners of the grating they were liable. I have been unable to find a single oase where local bo irds guilty of misfeasance have not been held liable; and with perhaps the exception to which 1 bave before referred, I have not found a single case where the surveyors of highways, whether corporate bodies or not, bave been held liable for mere nonfeasance. In the case to which I have referred—viz., The Borough of Bathurst v. Macpherson—the damage arose from non-repair of a road, the defect being caused by neglecting to repair an artificial drain which the defendants had constructed in the road. The defendants were, however, held liable. Sir Barnes Peacock, in delivering the judgment of the Privy Council Baid that the court was of opinion that tbe defendants, by construeting the drain and neglecting to repair it, bad caused a dangerous hole to be left in the road, which bad been unfenced, and constituted a nuisance, for which tbey might be indicted, and in respect of which they were liable for damages at the suit of anyoneinjured thereby. Mr. Atkinson endeavoured to dis> tioguUh this case on the ground that the defendants were rot surveyors of highways, but, as they bad the charge of the roads, and the rights and immunities of surveyor*, the name seems to me of small account. The question then arises, Did this injury proceed from nonfeasance or misfeasance? I confess I do not entertain much doubt on this point. The rot complained of io the spreading of a quantity of pitch on the surface of ihe street, whereby it was rendered slippery and dangerous, and to describe such an aot as non-repair of the road seems a contradiction in terms. Suppose, in this work, one of the barriers had been thrown down and left there during the night, and a horse had tripped over in the darkness and broken bis leg, would that be nonfeasance or misfeasance? I think no one would be hardy enough to call such an act nonfeistnce, but, if so, how does that case differ in principle from the present one? With regard to the last point, by whom was this work done P I think the corporation, io their defence, have been more ingenious than candid. They called Id witnesses, they produced no contract from which the facts could be elicits-), aud compelled the plaintiff's advocate to call a hostile witness—the corporation's surveyor—to prove the facts. That gentleman, on being examined, gave his evidence in a very fair and creditable way; and from his testimony two facts are clearly proved, that the fixing the setts was done under the superintendence of the witness, who is the borough surveyor, and that the corporation supplied the stones, and paid for the labour. In my opinion, this evidence casts the burden of proving that the work was done by a contractor on the corporation, if tbey rely on any such defenoe. One thing, at all events, is clear, tbat the corporation exercised dominion over the work by their own surveyor, and by supplying the stones, and, if so, though \ art of the work may have been done by a oontraotor, etill ihey are liable. A similar point arose in the case of Pendlebury v. Grtenhalyh (L. R. 1 Q. B. 40), which in its oiroumstanoes very muoh resembles the present oase, and there the court held that the defendants were liable. The same prinoiple was laid down in Burgess v. Gray (1 C. B. 578). If the corporation rely on any oontraor, they are bound to produce it, and show a valid contract under the seal of the corporation, which is the only way they could enter into a contract of this kind: Hunt v. Wimbledon Local Board (L. B. 4 0. P. D. 46). But, in truth, even if there bad been a valid contract under the seal of the corporation, of which, in the present case, there is no trace, the corporation would etill be liable. By their private Act all the streets, Ac, are vested in them, and, by the 20th eeotioD, every person disturbing the pavements, &o., without their consent in writing, is made liable to a penalty, and by the 16th section, the corporation shall be deemed gnilty of a misdemeanor for negleoting to keep the highways in repair. Where there is this statutory obligation imposed on any public body, they cannot divest themselves of their liability by oontraoting themselves out of it: Hole v. Sitlingbourne and SAeerness Railway Company (B. C. 6 H. & N. 488); Ellis v. Sheffield Gat Consumers' Company (2 E. & B. 267). On these grounds I am tf opinion that the plaintiff is entitled to a verdict with costs.
Solicitors for the plaintiff, Learoyd $ Pierey.
Solicitors for the defendants, Brook, Freeman, X- Batley.
MR. JAMES CROOME.
Mr. James Croome, barrister, died at Middleton Cheney, Northamptonshire, on the 23rd cf June, at the age of fifty-six. The deceased was the second son of ti e late Mr. Robert Croome, of Middleton Cheney, and was born io 1826. He was educated at the Charterhouse and at Brasrnose College, Oxford, and he was called to the bar at the loner Temple in Hilary Term, 1857. He practised on the South-Eastern Circuit, and also at the Middlesex, Essex, Hertford, St. Albans, and Colchcstor Sessions, and at the Central Ciiminal Court. He bad a good shsre of criminal and appeal business, and also at the various county courts and licensing sessions in the metropolitan distriot. Mr. Croome was a man of most courteous manners and generous and amiable disposition, and his death is mourned by a very large circle of professional friends. He was unmarried.
MR. JOHN LATIMER.
Mr. John 'Latimer, solicitor, died at Leeds on the 18th ulr. Mr. Latimer was the eldest son of Mr. David Latimer, of Eirklington Hall, Cumberland, and was born in 1827. He was admitted a solicitor in 1854, tnd he had practised for over twenty-five years at Leeds. He had an extensive private practice, and he was solicitor to the Leeds Commercial Building Society, the Skyrack and Morley Savings Bank, and other important bodies. Mr. Latimer was buried on the 23rd ult. He leaves a widow and five children.
SIR JOHN SMALE.
Sir John Smale, knight, many years Chief Justice of Hong Kong, died at 21, Sussex-place, Regent's-park, on the 13th ins'., at the age cf seventyseven. Sir J. Smale was the sou of Mr. John Smale. He was born in 1805, and he wss educated at Manchester College, York. He was for a few years in practice as a solicitor, but he afterwards entered at the Inner Temple! where he was called to the bar in Easter Term, 1342. He practised for eighteen years at the Chancery Bar, and was the author of a seiiesof reports io the court of Vice-Chancellors Parker and Hull, compiled in conjunction with Mr. De Gex, and afterwards with Mr, De Longueville Giffard. He was Attorney-General of Hong Kong from I860 till 1866, when he wasappoicted Chief Justice of that colony. lie will be long remembered at Hong Kong for
his successful efforts for the abolition of domestic slavery. In 1874 be receivrd the honour of kui<hthoo j, an I in 1881 he rit:red on a pension. S r J. Smale had beeu twice married.
MR. GEORGE BUZZARD.
Mr. George Buzzard, solicitor, of the St. James's Vestry Hall, Piccadilly, died at his residence, 12, Waverley-place, Sr. John's Wood, on the 12th iaat., in his eightieth year. Mr. Buzztrd was born in 1803. lie was admitted a solictor in 1827, and during his long professional career he had held several important appointments in the metropolis. He was formerly clerk to the St. James's Board of Guardians, and he was uDtil his death superintendentregistrar for the di trict of Westminster. He was also clerk to the Lioensing Magistrates for the St. James's Division, Mr. George Allen being associated with him in that office. 11 ■• was appointed vestry clerk of the pari»h of St. James, Piccadilly, in 1832, and in April last, on completing his fiftieth year of oilier, he was presented by the parishioners with a silver salver aud a purse of sovereigns. At a special vestry held on the 15th inst., the following resolution was pissed :—" That this vestry, io offering its expressions of condolence to the family and friends of the Into Mr. Buzzard on tbeir sudden bereavement, desire to plsce on record its high apprecittion of his notable career for more than fifty years as vestry clerk of this pnrisb, bis great ap'itude and knowledge, his unswerving hon°sty and great zeal, and his able performance of his duties through that lengthened period to the day of his death in this and other offices held by him in ihe parish of St. James." Nearly all the members of the vestry were present at Mr. Buzzard's funeral at the Hampstoad Cemetery on the 16th ii st.
MR. THOMAS GEORGE DISMORE.
Mr. Thomas George Dismore, solicitor and notary (of the firm of Tao-nl v k Dismore), of Liverpool, was killed by a fall from a precipice on the 20th inst., while on a tour in North Wales. He had made the ascent of Snowdoi in company with Mr. George Norton, another Liverpool solicitor, but on their return to Llanbcris, Mr. Dismore missed his footing aud fell. His body was found the next morning very much mutilated, and death appears t> have been instantaneous. Mr. Dismore was born in 1848. He was admitted a solicitor in 1871, and he had been for several years in partnership with Mr. James Thornly. He was a notary public, and he had a good priva'o practice. He was secretary to the Liverpool Junior Litoral Association, but he was very popular with all parties io the city.
Mr. Duncan Robert Malcolm, solioitor, of Leeds and Wakefield, bat been appointed Clerk to the liawdon Looal Board. Sir. Malcolm was admitted a solioitor in 1876.
Mr. Robert Welch Macerkth, barrister, has been appointed Clerk to the Willesden Sohool Board. Mr. Maokreth was called to the bar at Lincoln's
inn in Trinity Term, 1874.
Mr. Richard Holmes, solicitor (of the firm of Holmas, Son, & Lear), of Arnnlei and Littlebaniptoo, has been appointed Clerk to the newly-formed Arnndel Burial Board. Mr. Holmes was admitted a solicitor in 1846. He ia town clerk of Arunde', registrar of the Arundel County Court, and clerk to the county magistrates and the Commissioners of Taxes.
Mr. Sydenham Pay*, solicitor, of Dover, has been eleotei Coroner for tbat borough. Mr. Payn was admitted a solicitor in 1867.
Mr. Charles James Griuwade, solioitor, of Hidleigb, has been elected Clerk to the Hadleigh Local Board. Mr. Grimwade waa admitted a solioitor in 1866.
Mr. Alexander Crato-sellah, advocate, who Iibs baen elected M. P. for the Haddington Burghs in the Liberal interest, is the son of Mr. Patrick Sellar, of Westfield, Morayshire, and was born in 1835. He was educated at Rugby and at Balliol College, Oxford, where he graduated first class in classios in 1858. He was called to the bar in Scotland in 1862, and he was private secretary to the present Lord Young when Lord-Advocate.
Mr. Georoe White, solioitor, of Guildford, has been elected Clerk to the Worplesdon Sobool Board. Mr. White ia registrar of the Guildford County Court. He was admitted a solicitor in 1851.
Sir George Young, baronet, who has been appointed a Commissioner of Charities, is the eldest surviving son of the late Sir George Young, Bart., his mother having been a daughter of the late Mr. Serjeant Praed, and was born in 1837. He was educated at Eton, and he was formerly fellow of Trinity College, Cambridge, where he graduated as a senior optime, and also in the second olass of the classical tripos in 1860. He was called to the bar at Lincoln't-inn in Easter Term, 1864, and he baa praotised in the Cbanoery Division. Si.' G. Young proceeded in 1870 to British Guiana a* a Commissioner to inquire into the Condition of the Coolies in tbat colony, and he was secretary to the Factory Acts Commission in 1875, and to the Irish Land Commission in 1880.
Mr. Abel John Ram, barrister, has been appointed Chairman of the Board of Coooiliation for the Carpet Trade. Mr. Ram is the son of the Rev. Abel John Ram, rector of Rolleston, Staffordshire. He is a graduate of Corpus Christi College, Oxford, and be was called to the bar at the Inner Temple in Trinity Term, 1872. He practised on the Oxford Circuit and at ibe Staffordshire Sessions, and ha has been for several years a revising barrister.
DISSOLUTION OF PARTNERSHIP.
Geoboe Lewis Phipfs Eyre and James Mason Allbn, solioitors, 1, Jobn-street, Bedford-row. Aug. 18. The business will be oarriej on aa heretofore at the fame place under the present style of Q. L. P. Eyre A Co., by the said George Lewis Fhipps Eyre. [Gazette, Aug. 22.]
LEGISLATION OF LAST WEEK.
HOUSE OF LORDS.
tills in Committee. Appropriation ; Fishery Board (Scotland).
Rills Read a Third Time.
Appropriation; Revenue; Friendly Societies; National Debt; Fishery Bourd (Scotland).
Aug. 18.—Royal Jsieut.
The Royal As'ent was given by Comnrnsion to the following Bills :— Appropriation; Civil Imprisonment (Scotland); Soraersham Rectory; Bills of Sale Amendment; Arrears of Rent (Ireland) ; Entail (Scotland); Annual Turnpike Acts Continuance; Supreme Court of Judicature (Ireland); Bombay Civil Fand; Isle of Man (Officers); Pensions Commutation ; County Courts (Costs and Salaries) ; Lunacy Regulation Amendment; Municipal Corporations; Divided Parishes and Poor Law Amendment; Labourers' Cottages and Allotment (Ireland); Bills of Exobange ; Electrio Lighting; Reserve Forces; Militia; Artisans' Dwellings; Merchant Shipping (Expenses); Government Annuities; Educational Endowments (Scotland); Intermediate Education (Ireland); South Wales Turnpike Rinds (Amendment); Corrupt Practices (Suspension of Elections); Passenger Vessels; Licenses Amendment (Scotland); Expiring Liws Continuance; Public Works Loans ; Constabulary (Ireland) Amendment; FrUon Charities; Married Women's Property; Allotments Extension ; India (Home Charges Arrears); Revenue ; Friendly Societies; National D bt; Ancient Monuments Protection ; Citation Amendment (Scotland); Merchant Shipping (Colonial Inquiry); Post-offioe Parcels; Fishery Board (Scotland) ; Wellesley-bridge (Limeriok); Metropolitan Street Improvements Amendment; Church Fenton, Cawood, end Wis tow Railway; Chadderton Improvement; Ballymeoa and Portylenone Railway; Peckharo, Lewisham, and Catford Bridge road; Eastern and Midland Kail way (Amalgamation); Devon and Cornwall Central Railway ; Uowan and Portpatrick Junction Kailway (Arrangement); East Warwickshire Waterworks; Rots District Water; Wrexham, Mold, and Connah's Quay Railway; Essex County (Loans); Halifax Corporation; Newcastle-npon-Tyne Corporation (Loans); Huddersfitld Corporation; Rotherham Corporation; Swansea Corporation (Loans); Tynemonth Corporation (Loans); Wolverhampton Corporation (Loans) t Ionian B.it>k; Bute Docks; Blackburn Improvement; Bolton Improvement; Derby Corporation ; Hull, Barnsley, and West Riding Junction Railway and Dock (New Works); Latimer Road and Aeon Railway; London and Southwestern and Metropolitan District Railway (Kingston and London Railway); Macclesfield Corporation; Wimbledon and West Metropolitan Junction Railway; Alexandra (Newport and South Wales) Docks and Railway; Bawtry and Trent Rtilway and Dock; Biidgewater Railway; North Cornwall Railway; Charing-oross and Waterloo Electrio Railway ; Dover Hirbour; London Southern Tramways; Mersey Railway; Metropolitan District Railway; Rhymney, Soutbport. and Cheshire Line* Extension Railway; Regent's Canal, City, and Docks Railway; South-Eastern Railway (New Lines and Widening*); Metropolitan Outer Circle Railway; Kadstock, Wriogton, and Congresbury Junction Railway; BeacousEeld, Uxbridg*, and Harrow Railway ; Stourhead Settled Estates.
HOUSE OF COMMONS. Aug. 17.—Bill Read, a Second Tims. Payment of Wages in Public-houses Prohibition.
Drinking Fountain In Lincoln's Inn-fields.—On Monday morning a new fountain was unveiled in Lincoln's-inn-fields, under the auspices of the Metropolitan District Fountain and Cattle Trough Association, in memory of the late Mr. Philip Twells, bnrrister-at-law, formerly M.P. for the City of London. Several members of the family were present, and the ceremony was performed by Mrs. Twel's, who, in a few appropriate words, declared the fountain open to the public. It is built of highly-polished granite, and its cost is estimated at about £1,000. The design is an elegant one. The architect was Mr. R. Keirle.—Timet.
WINDING-UP NOTICES. Joint Stock Companies. Limited Iit Chancery. Bbckswick Lager Bbee Brewery, Limited.—Petition for winding up, presented Aug. 16, directed to be heard before North, J., on Aug. 30, at 11. Chapman, London wall, solicitor for the petitioner Cwm Avoir Estate And Woexs Company, Limitxd.—By on order made by Chitty, J., dated Aug. 5, it was ordered that the company be wound up. Yant, Leodenhall st, solicitor for tho petitioner William Slack Axd Son, Limited.—By an order made by Kay, J., dated Aug. 0, it was ordered that the abovo company bo wound up. Field and (Jo, Lincoln's inn fields, solicitors for tho petitioner
[Gazette, Aug. 18.]
County Palatiite ov Laxcasteb. Limited nr Chahceby. Shydali Hall Collixit CoMrAitY, Limited.—The Vice-Chancellor hoe fixed Monday, Aug. 28, at 11, at the Municipal bldgs. Dale st, Liverpool, as the time and place for tho appoiutuiont of an official liquidator
[Gazette, Aug. 18.]
Goolb Alum Aitd Smeltikq Company, Limited.—Creditors are required, on or before Sept 30, to send their names and addresses, and the particulars of their debts or chums, to Ebenezer Adamson, 25, Booth st, Manchester. Thursday, Oct. 12, at 11, is appointed for hearing and adjudicating upon the debts and claims
"[Gazette, Aug. 22,'J
Fbiekdly Societies Dissolved. Milnthobpb Fbiendly Society, Cross Keys Inn, Centre st, Milnthorpe, Westmorland Aug. 14
[Gazette, Aug. 18.]
Sr. jAMia'B Provident Society, Longton, Stafford. Aug. 18
[Gazette, Aug. 22.]
CREDITORS UNDER ESTATES IN CHANCERY. LAST DAY OF PROOF. Atkins, Richaid, Albion rd, South Hampstead, Gent. Sept 30. Mott v Allen and
Atkins, Fry, J. Kingston! and Co, Essex st, Strand Bagley, George, West Drayton, Middlesex. Oct 1. Bagley v Bagley, Kay, J.
Bcswick, Bedford row Smallfage, Isaiah, Burnloy, Lancaster. Sept 30. Phillips v Smallpage, Hall, v.C, Artindalo, Burnley
Smith, Aaron, Catford Bridge, Kent, Captain. Sept 21. Day v Bonaini, Kay, J. Ward, Walbrook
Tjmphblby, Jamb, Portland House, Cambcrwell. Oct 2. Nash v Ward, Hall, V.C.
Mander, New sq, Lincoln's inn Wbay, William, March, Cambridge, Surgeon. Sept 15. Marshall v Wray, Bacon, V.O.
[Gazette, Aug. 18.]
Baieb, Chables, Northwood's Asylum, Frampton Cotterell, Gloucester, Gent. Oct2. GaddvP
> Baker, Kay, J. Harwood, Bristol
CREDITORS UNDER 2a & 23 VICT. CAP. 35.
Bee, William, North Kolsey, Lincoln, Farmer. Sept 23. Sowter, Brigg
Casson, Sarah, Oaknold, Manningham, nr Bradford. Sopt 21. Dunn and French,
Fibld, William, Blackfriars rd, Printer. Sept 29. Tilling, Devonshire chambers, Bishopsgate
Fletcher, Gboege, Shipton Sollars, Gloucester, Farmor. Sept 1. Brjdgcs and Mellersh, Cheltenham
Franklin, William, Great Dunmow, Essex, Carpenter. Sept 1. Wade and Co, Dunmow
Gould, Geobgb Mastebs, Maidstone, Clerk in Holy Orders. Sept 20. Helmore,
Bishopsgate st, Within Gbegoby, William, Bristol, Solicitor. Sept 29. Gregory and Son, Bristol Gubkby, Eliza Paul, West Hill, near Burlington, New Jersey, North America. Sept
15. Cooper and Co, Norwich Henshall, Thomas, Chester, Timber Merchant. Sept 4. Walker and Co, Chester Howoeth, Edwaed, Farington Lodge, nr Preston, Esq. Sept 23. Taylor, Preston Hunt, Thomas, Garaley, Worcester, Maltster. Sept 1. Saunders and Bradbury,
Johnson, John, Balsall Heath, Worcester, Coal Dealer. Sept 1. Saunders and Brad bury, Birmingham
Kisby, John, Withington, nr Manchester, Gentleman. Aug 30. Brooke, Hyde KiroWLES, Thomas, Scarborough, Gentleman. Oct 2. Tate and Cook, Scarborough Lees, Asa, Ashton under Lyno, Lancaster, Esq. Oct 31. Ponsonby and Carlile, Oldham Lilly, Benjamin, Birmingham, Ships' Brossfoundor. Sept. 7. Parr and Hayes, Birmingham
Lloyd, Rev Henry William, Aston Tirrold, Berks, Clerk. Oct 21. Mackcson and Co, Lincoln's inn fields
Mails, Chables Raxxxs, Huntingdon, Retired Builder. Sept 12. Jennings and Co,
Burton on Trent
Mabe, Jo Hit, Carlisle, Iron Merchant. Sept 30. Wright and Brown, Carlisle
Moore, Charles Wilson, Cheltenham, Major-Gencril Indian Army. Sept 22. Allisons
and Allison, Louth Oglesby, William, Lincoln, Furniture Broker. Sept 23. Sowter, Brigg Osborn, Robert Arthur, Fulham, Nurseryman. OctC. Walker and Co, Southampton
Proctor, Geoeob James, Newcastle-upon-Tyne, Gloss Manufacturer. Sept 12. Bird.
Spooler, William, Clare ct, St Clement Danes. Sept 8. Letts Brothers, Bartlett's
Tibbiis, Henbt, Everton, Liverpool, Master Mariner. Sept i. Simpson and North Weight, Edmund, Gloucester, Gent. Oct 2. Fryer and Blakeway, Gloucester Wodehouse, Rev Algernon, Eaaton Rectory, Southampton. Oct 1. Longboume and Co, Lincoln's Inn fields
[Gazette, Aug. 11.]