1862. FISHER V. PROWSE. COOPER WALKER. the public had a right to the way, not subject to the area, his holding is inconsistent with the judgment of the Exchequer, and, being only a holding at nisi prius, though by a very great Judge, it must yield in point of authority to a judgment in banc. In Jarvis v. Dean (a) the report leaves it uncertain whether the area in that case existed before the dedication of the way or not. As it is stated to have belonged to an unfinished house, it probably had not been long in existence, and as Best C. J. states, in his judgment, p. 448, that the way had been a public thoroughfare for many years, it seems that the way must have been more ancient than the area, and that the present point could not therefore have been raised. It certainly does not appear to have been raised, aud no opinion is given on it. There is no other authority that has been brought to our notice that conflicts with the decision of the Court of Exchequer. In Barnes v. Ward (b) the judgment is carefully worded. The Court there say, p. 420, "The result is, considering that the present case refers to a newly made excavation adjoining an immemorial public way, &c." This is not a decision that the case would have been different if the way had been more recent than the excavation, but it rather implies that such was the leaning of the Court. In Morant v. Chamberlin (c), though it was unnecessary to decide the point, the Court of Exchequer state that it was the inclination of their opinion, that the dedication of a highway might in point of law be made subject to the reservation of a private right to some extent interfering with the public way. As was pointed out in the course of the argument, there are in many towns ancient streets in which steps (a) 3 Bing. 447., see S. C. 11 B. Moo. 354. (b) 9 Com. B. 392. (c) 6 H. & N. 541. XXV. VICTORIA. descending from the houses are a permanent obstruction to the passengers; while in the foot pavements there are often flap doors opening into vaults and cellars, and plates opening into coal cellars, which, when opened, offer a temporary obstruction to the use of the way, and which, therefore, unless justified as having been reserved as of right on the dedication of the way, would obviously be illegal. So, in the country, there are innumerable footways which would be much more convenient if the ancient stiles were removed or even lowered. Yet it has never been held, or even suggested, that such things are illegal and might be removed as nuisances; and it seems difficult to say how they can be legal on any other principle than that the way has been dedicated subject to them. For these reasons we think that in both cases the rule must be discharged. Rule discharged in both cases, 1862. FISHER V. PROWSE COOPER V. WALKER. MACFARLANE against NORRIS. 1. Questions of procedure are to be determined by the lex fori, not by the lex loci contractûs. 2. Semble, that set-off is matter of procedure, and, as such, determinable by the lex fori. 3. The plaintiff sued as trustee of the estate and effects of a bankrupt in Scotland, under a sequestration in that country; for money received for the use of the plaintiff as trustee after the bankruptcy, and for interest due from the defendant to the plaintiff as trustee after the bankruptcy. The defendant pleaded that, before he had notice of the bank-. ruptcy, and before the sequestration, he gave credit to the bankrupt by becoming the indorsee and holder bona fide, within the meaning of the Scotch law, of a bill of exchange drawn by M. & Co. upon the bankrupt for the sum &c., and accepted by the bankrupt, which bill became payable after the bankruptcy, and " which credit so given was a credit of a nature likely to end in a debt from the bankrupt to the defendant, and the amount of the said acceptance was, at the time of the commencement of this suit, and still is, due to the defendant, and, together with interest thereon, equals the plaintiff's claim: and the bankrupt gave credit to the defendant by consigning goods to him for sale for the said bankrupt, and upon the terms that the proceeds should be remitted and paid to the bankrupt in Scotland: and that the money sought to be recovered by the Tuesday, June 10th. Lex loci con- Lex fori. 1862. MACFARLANE V. NORBIS. plaintiff is the proceeds of and money arising from the sale of the said goods under and according to the terms of the said consignment, and which said consignment was of a nature likely to end in a debt from the defendant to the bankrupt: and the defendant says that he is ready and willing, and hereby offers, to set off the amount so due to him, the defendant, as indorsee and holder of the said bill of exchange as aforesaid, against the claim of the plaintiff in respect of the matter herein pleaded to, and that, by the law of Scotland, he is entitled so to do, and such set-off forms an answer to the plaintiff's claim:" held, that the plea was good. THE declaration stated that this was an action by the plaintiff, as trustee of the estate and effects of J. Park, a bankrupt in Scotland, under a sequestration of the estate and effects of Park, by virtue of the statutes relating to bankrupts in Scotland and the sequestration of the estate and effects of bankrupts in Scotland, against the defendant, for money payable by the defendant to the plaintiff as trustee as aforesaid: (1) for goods sold and delivered by Park before his bankruptcy and the said sequestration, to the defendant at his request: (2) and for money received by the defendant for the use of Park before the bankruptcy and sequestration: (3) and for money paid by Park for the defendant, at his request, before the bankruptcy and sequestration: (4) and for interest upon moneys due from the defendant to Park, and by him before his bankruptcy and sequestration forborne to the defendant at his request: (5) and for moneys found to be due from the defendant to Park on accounts stated between them before the bankruptcy and sequestration: (6) and for money received by the defendant for the use of the plaintiff as trustee after the bankruptcy: (7) and for interest upon money due from the defendant to the plaintiff as trustee after the bankruptcy, and by him as trustee forborne to the defendant at his request for long terms: (8) and for moneys found to be due on accounts stated after the bankruptcy between the plaintiff, as trustee, and the defendant. The declaration concluded with an averment that all matters happened before the suit to vest in the plaintiff and constitute him trustee of the estate and effects of Park, and to entitle him to sue and to recover in this action: and the plaintiff, as trustee as aforesaid, and by virtue of the said statutes, claimed 50007. The fourth plea was as follows: "The defendant, as to the sum of 3111. 17s. 6d., parcel of the money claimed in the sixth and seventh counts of the declaration, says that, before he had notice that the said J. Park had become bankrupt, and before any sequestration of the estate and effects of the said J. Park, the defendant gave credit to the said J. Park by becoming the indorsee and holder bonâ fide, within the meaning of the Scotch law, of a bill of exchange, drawn by Mousley & Co. upon the said J. Park, for the sum of 3007., and accepted by the said J. Park, and which said bill became due and payable, according to the tenor and effect thereof, after the said J. Park had become bankrupt, and which credit so given by the defendant to the said J. Park as aforesaid was a credit of a nature likely to end in a debt from the said J. Park to the defendant, and the amount of the said acceptance was, at the time of the commencement of this suit, and still is, due to the defendant, and, together with interest thereon, equals the plaintiff's claim, to which this plea is pleaded: and the defendant further says that, before he had notice that the said J. Park had become bankrupt, and before any sequestration of the estate and effects of the said J. Park, the said J. Park gave credit to the defendant by consigning goods to him for sale for the said J. Park, and upon the terms that the proceeds should be remitted and paid to the said J. Park in Scotland: and that the money 1862. MACFARLANE v. NORRIS. 1862. MACFARLANE V. NORRIS. sought to be recovered by the plaintiff in the said sixth Demurrer, and joinder in demurrer. Dr. Phillimore (Aspland with him), in support of the demurrer. The plea proceeds on the assumption that the Scotch law is applicable to the present case; and that, by that law, the defendant is entitled to set off a cross claim against that portion of the declaration to which it is pleaded. Set-off is matter of procedure, and, as such, must be determined by the lex fori, which in this case is the English law. The point has not, indeed, been expressly decided in England, but many authorities recognise the law to be so. In Don v. Lippman (a), Lord Brougham, p. 20, says: "The law of the country where the contract is to be enforced, must prevail in enforcing such contract, though it is conceded that the lex loci contractûs may be referred to for the purpose of ex(a) 5 Cl. & F. 1. ! |