Superior Courts: Lords Justices.-Rolls.-V. C. Kindersley. 75 for the issue of a warrant on a party to made on the sugar purchased without the appear and be examined touching the estate, plaintiff's knowledge. without the concurrence of the assignees? But where the official assignee had investigated the matter, and was of opinion no benefit would arise therefrom, an appeal was dismissed from Mr. Commissioner West, refusing the application—the costs of the summoned party who had been served with the petition of appeal instead of the assignee, to be paid by the bankrupt. In re Andrews. Nov. 17, 1853. SOLICITOR.-TAXATION OF BILL OF COSTS FOR ATTENDING TO WATCH REGISTRATION OF VOTERS.-JURISDICTION. THIS was an appeal from the decision of Mr. Commissioner West, refusing the bankrupt's application for the issue of a warrant, under the 12 & 13 Vict. c. 106, s. 120, on a Mr. Hutton, the trustee, for sale and distribution among the creditors, of an estate belonging to the bankrupt, which had been conveyed in 1813, to appear and be examined touching the bankrupt's estate, for the purpose of enabling the official assignee to recover sufficient property to meet the debts, and to leave a balance for the bankrupt's benefit. It appeared the official assignee had declined to join in the plication, on the ground he had investigated the circumstances, and no benefit would result therefrom, and the Court of Bankruptcy had confirmed this view. No creditors' assignees had been appointed. Sturgeon in support. ap Held, that the bill of costs of a solicitor for attending to watch the registration of voters for the purpose of serving the interest of a candidate, is taxable on petition by the Lord Chancellor or in this Court. THIS was a motion to discharge an order of course which had been obtained on petition for the taxation of the bill of costs of Mr. Andrews, for attending to watch the regis tration of voters for Lincolnshire, on behalf of the liberal interest. Lloyd and Hallett in support, on the ground of want of jurisdiction, as the bill was for business in a Court of Law, and taxation should have been there obtained under the 6 & 7 Vict. c. 73, s. 41. R. Palmer and Shapter, contrà. The Master of the Rolls said, that the Court of the revising barrister was a Court of inquiry to ascertain and determine who ought to be on the lists of voters, with an appeal to the Court of Common Pleas, but it was not a Court in which The Lords Justices (without calling on J. a suit could originate or any motion be made Hinde Palmer for Mr. Hutton, who had been with respect to a suit at law, and the costs were alone served with the appeal petition) said, therefore taxable by the Lord Chancellor or that even assuming the summons could be ap- here, on petition. The motion would accordplied for by the bankrupt without the concur-ingly be refused with costs, but with leave to rence of the assignees, no case had been made Mr. Andrews to make out a strict bill of costs out for its issue, and the appeal must be dis- for taxation under the order. missed with costs, to be paid by the petitioner as the assignee, and not Mr. Hutton, ought to have been served. Master of the Rolls. Bentley v. Craven. Nov. 15, 16, 1853. PARTNERSHIP. DISSOLUTION. -TAKING ACCOUNTS. PROFITS ON TRANSACTION WITHOUT KNOWLEDGE OF OTHER PARTNER. On taking the accounts upon the dissolution of a partnership, held that the defendant was to account for the profits made on a transaction which he had effected without the knowledge of the other partner. In this case it appeared that a dissolution of partnership between the plaintiff and defendant, as sugar refiners, had been agreed upon, and a reference directed to take accounts, and that the defendant had previously to the dissolution purchased and sold on his own account, at a profit, a quantity of sugar, without paying such profit over to the partnership account. R. Palmer, Roupell, and Lewis for the several parties. The Master of the Rolls said, that one partner had no right to make profits as against the other partner, and that the defendant must carry to the partnership account the profit Vice-Chancellor Kindersley. Hill v. Great Northern Railway Company. RAILWAY COMPANY. -PURCHASE OF PRO- A railway company on requiring certain pro- Quære, whether the second annuitant could maintain a bill for specific performance? Ir appeared that the defendants, upon requiring certain houses in Union Place, Maiden Lane, Battle Bridge, for their station at King's Cross, had given notice to the owners of the same, and to Mr. Gadd, an annuitant thereon with a power of sale, and also to the plaintiff, who held a subsequent annuity of 7. secured on the same, with powers of entry and distress. The defendants afterwards purchased of Mr. 76 Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood. Gadd under his power of sale, and this bill was therefore filed to recover the value of the annuity with arrears. Elmsley and Younge for the plaintiff; Goren for the company, contrà, citing the 8 & 9 Vict. c. 18, ss. 18, 115. The Vice-Chancellor said, that, without deciding whether the plaintiff could maintain a bill for specific performance, he was 'entitled to have the value at the time the notice was given of his interest in the property, and a reference was therefore directed to ascertain its value. Exparte Earl of Shrewsbury. Nov. 18, 1853. RAILWAY COMPANY.-PURCHASE OF LAND BELONGING TO INFANT.-ACCUMULATION Lands belonging to an infant were taken for Fleming appeared in support of this petition, for the investment of the purchase-moneys of land belonging to an infant, which were taken for the purposes of a railway, and for the dividends thereon to be accumulated. An order was also sought under the Trustee Act (13 & 14 Vict. c. 60), vesting the estate in the rail way company. Prior for the company. The Vice-Chancellor said, the dividends would be ordered to accumulate, but that there was no necessity for a vesting order, as the guardian had full authority under the Statute to execute the deed of conveyance, Vice-Chancellor Stuart. of the parties primarily so being unable to pay the debt, he was not liable until such parties had been applied to; Daniel and Roxburgh for the official manager, contrà. The Vice-Chancellor said, that the appellant came to complain of being compelled to contribute to the costs of proceedings with which he contended under the deed of settlement he had nothing to do, as his objection went to show he should not have been made a contributory, and the motion would therefore be refused. Vaudrey v. Howard. Nov. 12, 1853. WILL AND CODICIL. CONSTRUCTION. REVOCATION.-LAPSE. A fund was directed by the testator to be divided equally among his five sons and his grandson, with a proviso that the bequest was revoked as to two of the sons, to whom moneys had been advanced, unless the mill, of which they had the exclusive advantage, sold for a certain sum. The mill was sold for a less sum: a declaration was made that the other four were to take such shares. It appeared that the testator, John Howard, by his will, directed a fund to be divided equally among his five sons and his grandson, and then provided that he revoked the gift as to two of his sons, to whom large advances had been made, unless the mill, of which they had the exclusive advantage, sold for a sum exceeding 6,000l., in order to secure as far as possible an equal participation in his property. The mill sold for a sum less than 6,000l. In this administration suit of his estate the question arose, whether the other parties were entitled to the revoked shares. Malins, Follett, Teed, Dickenson, Gordon, Druce, and Hallett for the several parties. The Vice-Chancellor said, there would be an intestacy if the gift were simply revoked, but inasmuch as an intention appeared from the codicil that the other four should take the two shares, a declaration would be made to that effect. Vice-Chancellor Wood. Kavanagh v. Morland. Nov. 9, 1853. A call of 1l. per share had been made by the Master for the costs of winding up. A holder of 25 shares moved to discharge, on the ground the deed of settlement provided WILL.-CONSTRUCTION.-ISSUE.—ESTATE that the shareholders should not be liable beyond the amount paid on their shares. The motion was refused. THIS was a motion to discharge an order of the Master charged with the winding up of the above company, making a call for the costs incurred of 17. per share on the appellant, who held 25 shares therein. It appeared that the company's deed of settlement provided that the shareholders should not be liable beyond the amount paid on the shares, and a prospectus forwarded to the appellant also contained a similar proviso. G. Lake Russell in support, on the ground that, although he might be liable in the event TAIL. A testator gave freehold estates to his wife and granddaughter for their respective lives, and directed that in case the wife should again marry, she should take a life interest, and he also declared that if the granddaughter died leaving issue, his estate should, after the death of his wife, be distributed among them, share and share alike as therein directed, with a gift over to trustees in the event of her dying without issue. The widow had again married: Held, that the granddaughter took an estate tail, and not merely an estate for life. THIS was a special case for the opinion of Superior Courts: V. C. Wood.-Queen's Bench. the Court. It appeared that the testator, James Maskell, gave certain freehold estates to his wife and granddaughter, Ann Maskell, for their respective lives, and directed that in case his wife should again marry, she should take a life estate in his mansion-house, with the lands and premises belonging to the same, and known as "Moat House." The testator also declared that if the granddaughter died leaving issue, all his freehold and copyhold lands should, after the death of his wife and sister, be distributed among them, share and share, as therein directed, with a gift over to trustees for sale in the event of his granddaughter dying leaving no issue, and after the death of his wife. The testator died in 1790, and the granddaughter married a Mr. Hay in 1797, and after the death in 1817 of the widow, who had married again, the granddaughter, having no issue at the time living, suffered with her husband a recovery to bar the remainders over, and to such uses as they should during their joint lives appoint, and they appointed part of the Moat House estate to the plaintiff, who had contracted to sell to the defendant. An objection having been taken to the title on the question, whether the granddaughter took an estate for life or in tail, this special case was presented. W. M. James, J. V. Prior, and H. F. Bristowe appeared for the several parties. The Vice-Chancellor held, that the granddaughter took an estate tail in the property. Mandeno v. Mandeno. Nov. 15, 1853. COSTS OF SUIT AS TO CONSTRUCTION OF WHERE NO PERSONALTY. In a suit as to the construction of a will which had been necessarily instituted, the costs were directed to be raised by mortgage in preference to a sale of the real estate, there being no personalty, the decree to be worked out at chambers. In this suit, as to the construction of a will, it appeared there was no personal estate, and it was therefore proposed to sell or mortgage the devised estate to provide for the costs. Rolt, Baily, Sheffield, Prior, Haddan, and J. W. De L. Gifford, for the several parties, citing Adams v. Adams, 1 Hare, 536. The Vice-Chancellor directed that the costs which had been necessarily incurred, should be raised by mortgage in preference to a sale, so as to avoid having a surplus beyond the sum required-the decree to be worked out at chambers. YEAR. 77 and injured his goods: Held, that as the relation of the parties was entirely one of contract, and it did not appear the defendant was bound to repair on request, the plaintiff was not entitled to recover in an action for such damages, and a demurrer to the declaration was allowed. THIS was a demurrer to the declaration in an action by the tenant from year to year of certain premises against his landlord, and which alleged that a chimney on the premises, without the negligence or default of the plaintiff, as such tenant to the defendant, was in danger of falling, yet that the defendant, not regarding his duty in the premises, did not nor would not do such substantial repairs to the chimney as were necessary and proper, or do or take any other means to prevent the same from falling, by means of which negligence the chimney, whilst the plaintiff was in occupation of the premises, fell and injured the palintiff's goods. Unthank in support of the demurrer; J. A. Russell, contrà. The Court said, that as it did not appear the defendant was bound to repair on request, and the relation of the parties was entirely one of contract, the defendant was entitled to judg ment. Kernot v. Catlin. Nov. 15, 1853. INSOLVENT.-DIPLOMA OF SURGEON.-AS SIGNEES. Held, that the diploma as surgeon of an insolvent does not pass to his assignees. THIS was a demurrer to the declaration in this action by the plaintiff, who was a surgeon, and had become insolvent, to recover his diploma from the assignees. Willes for the defendants in support; Milward for the plaintiff, contrà. The Court said, the diploma was necessary for the plaintiff to prove his personal identity and title to practise, and did not pass to the assignees, and he was therefore entitled to judg ment. THE declaration in this action alleged that the plaintiff, who was an able-bodied seaman with a register ticket, had been engaged by the defendant, a shipowner at Plymouth, to proceed on a voyage on board a vessel lying there, and that the vessel at the time of the commencement of such voyage was unseaworthy and leaky, whereby the plaintiff was unable to sleep in his hammock, and was exposed to un Court of Queen's Bench. Gott v. Gaudy. Nov. 11, 1853. LANDLORD AND TENANT FROM YEAR TO LIABILITY OF LANDLORD FOR INJURIES CAUSED BY FALL OF CHIMNEY. The plaintiff was tenant from year to year of the defendant's house, and it appeared one of the chimneys fell down on the premises murrer, on the ground that there was no im reasonable labour. To this there was a de 78 Superior Courts: Queen's Bench.-Common Pleas. plied warranty of the ship's seaworthiness, and also that the plaintiff's remedy was confined to the penalty of 207., imposed by the 7 & 8 Vict. c. 112, s. 18 (Merchant Seamen's Act). Kingdon in support of the demurrer; Milward, contrà. Cur. ad. vult. The Court said, there was no contract or duty disclosed in the declaration, which could be the foundation of the action. The defendant might have been himself ignorant of the defects in the ship, and it was open to the plaintiff to have examined its condition before engaging himself to serve in it. The case of Gibson v. Small, in the House of Lords, did not apply, as the dicta of the Judges had reference to warranty in the case of a policy of insurance; but on the contrary, if the principle of Seymour V. Maddox, 16 Q. B. 326, and Priestley v. Fowler, 3 M. & W. 1,' were applied, the action could not be obtained. The demurrer must therefore be allowed. The defendant sold to the plaintiff a bill of exchange purporting to be drawn at Sierra Leone, and unstamped. It appeared to have been drawn in this country: Held, that the plaintiff was entitled to recover its amount in an action for money had and received to his use, there being a failure of consideration. THIS was a rule nisi to set aside the nonsuit and enter the verdict for the plaintiff in this action, which was brought for money had and received to the plaintiff's use. It appeared that the defendant had sold to the plaintiff a bill of exchange purporting to be drawn at Sierra Leone, and unstamped. It appeared, however, that it had been drawn in this country, and this action was brought as for a total failure of consideration. Chambers and Pearson showed cause; Petersdorff in support. The Court said, that the plaintiff was entitled to recover on the ground the bill sold was of an entirely different description from what it professed to be, and was of little or no value, having been drawn in England. The rule was therefore made absolute to enter the verdict for the plaintiff. Foxhall v. Barnett. Nov. 17, 1853, ACTION FOR FALSE IMPRISONMENT UNDER CORONER'S INQUISITION.-COSTS OF SET TING ASIDE INQUISITION. The plaintiff was taken into custody and held See also Hutchinson v. York, Newcastle, and Berwick Railway Company, 5 Exch. R. 343; Wigmore v. Jay, ib. 354. to bail, under an inquisition before a coroner, which afterwards appeared to have been taken without jurisdiction as in a wrong county: Held, that the plaintiff was entitled to recover as well the costs of setting aside the inquisition as the costs of procuring bail. A RULE nisi had been obtained on Nov. 4 last, to reduce the damages in this action for false imprisonment brought against the coroner for Gloucestershire. On the trial before Coleridge, J., at the last assizes for Gloucester, it before the defendant, on the body of a man appeared that, in consequence of an inquisition found dead, the plaintiff had been taken into 251. odd for procuring bail, and that it was custody, and had been put to the expense of afterwards ascertained the inquest had been held at a public-house not in the county for which the defendant was coroner, and proceedings were thereupon taken to set aside the inquisition; and costs incurred to the amount of about 461. The question in this action to recover such costs was, whether the proceedings to set aside the inquisition were necessary. James and Holl showed cause; Keating in support. The Court said, that as the plaintiff was not by his discharge on bail restored to the state in which he was before the charge in question was preferred, and could not be said to be restored until the inquisition was quashed, he was entitled to set aside the inquisition and to recover the costs thereby incurred. The rule would therefore be discharged. On the trial of a plaint in the County Court by the owner of a ship against the charterers, to recover damages for its detention in the river Tyne, contrary to the charterparty providing for its being loaded in regular turn of loading with coals and coke, the Judge rejected evidence of the custom of the port, as to the meaning of the words "in regular turn of loading —a new trial was, on appeal, directed with costs. By a charterparty, it was agreed the respondent's vessel should, with the first opportunity and all possible despatch after the signing thereof, proceed to the river Tyne, and on arrival there be ready forthwith, in regular turn of loading, to take on board a cargo of coals and coke, and being so loaded, should be ready for sea and proceed with the first opportunity and all possible despatch to Carthagena, in Spain. The charterparty was signed on Jan. 11, 1853, and the vessel arrived at Newcastle on the 25th, and was loaded with the coals on Feb. 3, and on March 3 she commenced loading with coke, and was fully loaded on the 11th Superior Courts: Common Pleas.-Exchequer.-Exchequer Chamber. The respondent claimed 507. for this detention, and had brought an action in the Northumberland County Court, at Newcastle. On the trial, evidence was tendered as to the custom of the port in reference to the entry of vessels for their turn, but it was rejected; and the jury were directed that the cargo should be put on board within a reasonable time, and returned a verdict for the respondent, whereupon this appeal was presented. 79 panies, it was provided that all bonds given to either of them should enure to the benefit of the new company. A demurrer was overruled in an action by the new company on a bund given by the defendant for the fidelity and honesty of a clerk in the service of one of the old companies. THIS was a demurrer to the declaration in an action on a bond given by the defendant for the fidelity and honesty of a clerk in the Bovill in support, citing Robertson v. Jack-service of the plaintiffs before their amalgason, 2 C. B. 412; Syers v. Jonas, 2 Exch. R. mation with the Ipswich and Bury St. 111; and the 8 & 9 Vict. c. 73, s. 11. Udall, contrà. The Court said, that the evidence as to the custom of the port had been improperly rejected as to the meaning of the words "in regular turn of loading," and there must be a new trial with costs. Bryce v. Higgins. PUBLIC HEALTH ACT. Nov. 14, 1953, ACTION FOR PE NALTY FOR MEMBER OF LOCAL BOARD In an action to recover a penalty under the Edmunds Railway Company under the 10 & 11 Vict. c. clxxiv. By s. 10 of the Act it was enacted, that all "bonds, &c., of which the dissolved companies, or either of them, were possessed or entitled at Law or in Equity," "shall be vested in and belong to the new company for their absolute benefit," "and may be proceeded on and enforced in the same manner to all intents and purposes as if the last-mentioned company had been a party to and executed the same, or had been named or referred to therein." O'Malley in support of the demurrer; Bramwell for the plaintiffs, contrà. The Court said, that the words in the Act were clear on the point, and that the plaintiff's were entitled to judgment. PLETE LINE. COMPULSORY POWERS.- THIS was an action against the defendant, RAILWAY COMPANY.-MANDAMUS TO COMwho was a proprietor of the Margate Pier and a member of the Local Board of Health, to recover a penalty of 501. under the 11 & 12 Vict. c. 63, s. 133, for voting on a question which came before the board relating to the pier. The facts were turned into a special case for the opinion of this Court. By s. 19 of the 11 & 12 Vict. c. 63, it is provided, that "no person, being a proprietor, shareholder, or member of any company or concern established for the supply of water, or for the carrying on of any other works of a like public nature," "shall vote as members of the said local board upon any question in which such company or concern is interested." Channell, S. L., for the plaintiff; Phipson for the defendant. The Court said, that as the plaintiff had the party grieved" or had obtained the Attorney-General's permission to sue for the penalty, the defendant was entitled to judgment. failed to show he was 66 A railway Act enacted, that the company "shall and they are hereby required" to go to Parliament for an Act to make a branch line, and an Act was accordingly obtained, in which the words were it shall and may be lawful" for the company to make the line in question: Held, affirming the decision of the Court of Queen's Bench, on a demurrer to the return to a mandamus on the company to complete the line, that as the later Act was incorporated with the former one, it did not repeal the compulsory powers of the former Act. THIS was a writ of error from the judgment of the Court of Queen's Bench (reported 1 Ellis & B. 774), on a demurrer to the return and complete a line of railway from Bradford to a mandamus on the above company to make to Barhampton, under the 8 & 9 Vict. c. liii., which, after reciting that it was expedient an improved communication should be formed from the Wilts, Somerset, and Weymouth Railway, enacted by s. 62, that on the Act being obtained, the company shall, and they are hereby required," to go to Parliament in the following Session for an Act to make such communication accordingly. An Act was afterwards obtained in 1846, to extend the On the amalgamation of two railway com- time for making the railway and empowering Court of Exchequer. ACTION ON BOND. CLERK TO RAILWAY NIES. |