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ments or re-assignment of the term was made. S. U. delivered the deeds to his solicitor, J. B., to whom, as alleged, he was indebted to a large amount; and in Feb., 1841, S. U., by indenture, agreed with J.B. to charge the debt upon the said hereditaments. The plaintiff did not execute the indenture of Feb., 1841. The larger part of the debt due to J. B. was for costs incurred in defending a suit, first on behalf of the plaintiff, and subsequently of herself and her husband. In 1843 J. B. entered into possession of the hereditaments, &c., and had ever since continued in such possession. Although all principal and interest due to J. T. had been paid, yet it was alleged that he, as mortgagee, had paid the sum of £175 for certain costs, which he was entitled to recover under the mortgage security; and in Sept., 1854, he, in consideration of £40, assigned this debt to J. B., and conveyed the hereditaments to him to secure the amount due to him. S. U. died in Dec., 1855, and shortly afterwards the plaintiff filed this bill, to have, inter alia, the indenture of Feb., 1841, declared void; that J. B. was not entitled to any larger sum than £40; and that, in taking the accounts, he would not be entitled to be paid the sum alleged to be due, and secured by the indenture of 1841 Held, that J. B. was entitled to the principal and interest secured by the indenture of 1841, and also to the £40 and interest from Sept., 1854; to his costs of the suit, and in defending his mortgage title; and that the indenture of March, 1837, and the amount due thereon to J. T., were to stand as security for the payment of the amount found due to J. B.; and the court ordered an account against J. B. as mortgagee in possession. Nelson v. Booth, 3 Jur. N. S. 951.

INSOLVENT DEBTOR.- Discharge Subsequently acquired property [vol. 2, p. 57; vol. 3, p. 161]- Administration of assets Representative of deceased insolvent debtor suing. The following is an Irish decision, on the Irish Insolvent Act clauses (analogous to those in the English Act) as to the future estate of an insolvent debtor. In Thomas v. Purell (15 Beav. 148), where it appeared that the debt was barred, not by the Insolvent Debtors Act only, but by the Statute of Limitations, the Master of the Rolls decided that the subsequently acquired property could not be made available, as the mode pointed out by the statute had not been followed, and that case appears to have proceeded upon the same principle as Sir J. Romilly acted upon in the subsequent case of Re Moylan (16 Beav. 220), because that was the case of a bond creditor, whose debt was not barred by the Statute of Limitations, and he, in the most precise language, declared that no judgment having been entered upon the warrant of attorney (see vol. 3, p. 161), the

future estate of the insolvent could not be affected, and that whether the debt existed or not, the remedies at law and equity were gone; upon the same principle upon which it has always been held that a demand is barred by the Statute of Limitations, as the remedies for it are lost. In the following case it appeared that H. became an insolvent in the year 1851, and took the benefit of the act for the relief of insolvent debtors. D., a judgment creditor of H., was appointed his assignee in the insolvency, and his debt was inserted in the schedule. In the course of the same year H. was discharged, having executed the usual warrant of attorney for the assignee to enter up judgment pursuant to the 3 & 4 Vic. c. 107 (Irish Insolvent Act); but no judgment was actually entered up. Subsequently to his discharge H. acquired some personal property, and died in the year 1855: Held, that the personal representative of D. could not maintain a suit for the administration of the property acquired subsequently to the insolvency. Dunlevie v. Hart,

30 Law Tim. Rep. 23.

LANDLORD AND TENANT [ante, pp. 91,122]. -Letting by steward-Lease.—The appointment, by a landlord, of a paid steward to manage and let his property, does not of itself convey to the st ward an authority to let a farm so as to bind the fandlord. Collen v. Gardner, 21 Beav. 540.

PARTNERSHIP.-In mines-Management-Dissolution by decree-Directing alteration in working— Disagreement between owners, manager, and receiver.A colliery partnership being dissolved by decree, and a sale of the colliery, as a going concern, directed, the court will not, until it be found impossible to effect a sale, direct such an important alteration in the working as the cutting through a fault, although the evidence was all on one side as to the economy of working to ensue on such a course, there being no immediate necessity for such cutting in order to carry on the concern. When part owners of a mine cannot agree on a plan for working it harmoniously, a court of equity will interfere to appoint a manager and receiver, and will do so if the circumstances seem to render such a course advisable, when a sale has been directed. Lees v. Jones, 3 Jur. N. S. 954.

POWER [ante p. 85].—Power to wife to appoint in default of husband's appointment—Appointment to grandchildren not objects of power [vol. 2, p. 369]— Election [ante, p. 84; vol. 2, pp. 27, 195, 200].— Where a settlement gives the wife surviving the husband a power to appoint by will, in default of direction, limitation, or appointment by the husband, the legal effect of such provision is, to give the wife a power of appointment in respect of any portion unappointed by the husband, or not completely or

validly appointed by him. A father, having a power of appointment among all his children, by his will, purporting to make an appointment of the whole of the fund, excluded one child, and appointed a portion of the fund to grandchildren who were not ol ects of the power: Held, that the appointment was valid as far as it related to the portion of the fund appointed to the children. But having given other legacies by the will to the children in whose favour he had appointed: Held, that they were bound to elect in favour of the grandchildren. Exparte Bernard, in the matter of Leigh's Trust, 6 Ir. Ch. Rep. 133.

RAILWAY COMPANY.-Priority of preference shareholders-Railway Company-Fraud.-The following decision sustaining the priority of preference shareholders in a company, has an interest beyond the peculiar circumstances of the case, which originated in the frauds of the notorious Redpath. A sum of £243,923 net revenue of the Great Northern Railway Company was admitted to be applicable to dividend for the half-year ending December 31, 1856. Shortly before that date, an officer of the company had by forgeries defrauded his employers to nearly that amount. Preference shareholders filed a bill claiming their full dividends from June, 1856, and seeking an injunction against payment to ordinary shareholders until after satisfaction of the claims of the preference shareholders: Held, that the preference shareholders were entitled to the declaration, and perpetual injunction prayed, restraining the company from declaring or paying any dividend upon the ordinary original stock, the A. stock and the B. stock, without regard to the rights of the preference shareholders to be paid in priority their dividend from the 30th June, 1856; that sect. 3 of the act passed in 1857, consequent on the discoveries of the frauds of the officer of the company, was to be construed as cumulative, by way of security for, and not in substitution of, such preference dividends. Henry v. The Great Northern Railway Company, 30 Law Tim. Rep. 10.

RAILWAY COMPANY [ante, pp. 81, 86].— Lands and Railways Clauses Consolidation Acts, 1845 (c. 18, s. 68; c. 20, s. 6)—"Lands injuriously affected"-Injury must be actionable-Execution of works-Vibration by use of railway after completion of line-Overlooking from railway-Certiorari.-By sec. 6 of the 8 & 9 Vic. c. 20 (the Railways Clauses Consolidation Act, 1845), the company are to make to the owners and occupiers of " any lands taken or used for the purposes of the railway, or injuriously affected by the construction thereof, full compensation for the value of the lands so taken or used, and for all damage sustained" by such owners and occupiers "by reason of the exercise as regards such

lands, of the powers by this or the special act, or any act incorporated therewith, vested in the company." That section, together with sec. 16, defines who is entitled to compensation; and sec. 68 of stat. 8 & 9 Vic. c. 18 (the Lands Clauses Consolidation Act, 1845), prescribes the method of settling the claim, "if any party shall be entitled to any compensation in respect of any lands, or any interest therein, which shall have been taken or injuriously affected by the execution of the works." Under the provisions of the above acts, it has been held that it is not every kind of disturbance that entitles a party to compensation; it is necessary to draw the line somewhere. It is difficult to say that for every fanciful ground of complaint compensation is to be given, as for the obstruction of a prospect which might detract from the agreeable enjoyment of a house. A well-defined line is drawn in The Çaledonian Railway Company v. Ogilvy (2 H. L. C. 234; 2 Macq. 229)—viz., that it must be an injury in respect of which, if there was no enabling statute empowering the company to do the act, an action would have lain for the injury at common law. A house and premises, of which the claimant was lessee, and which adjoined the railway of defendants, were injured by the vibration caused by ballast waggons during the construction of the line, and by the passing of trains after the completion of the line, and the privacy of the premises was destroyed by being overlooked from an embankment on which the line of railway passed. A warrant issued to the sheriff to assess the damages to which the claimant was entitled "in respect of the said lands or property, or his interest therein, having been so injuriously affected." The under-sheriff directed the jury that both these matters were subjects for compensation, and the jury found that the claimant had sustained damage to the amount of 100 guineas: Held, that the premises were not "injuriously affected" within sec. 68 of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vic. c. 18), by being over-looked; and that the inquisition being bad as to part, the court were bound to issue a certiorari to quash it. Semble, held also, that under sec. 68, compensa ion for injury caused by vibration must be confined to vibration in the construction of the works, and could not be claimed for what arose from the use of the railway after its completion. Re Penny and the SouthEastern Railway Company, 3 Jur. N. S. 957.

SETTLEMENT.-Portions-Younger chilaren— Ellest son-Disentailing deed-Resettlement of estate -Younger son becoming eldest.—Where the bulk of an estate is limited in strict settlement, and by the same settlement portions are provided for younger children, no child taking the bulk of the estate by virtue of the limitations in strict settlement can take

any benefit from the portions, whether the settlement does or does not contain an express provision to exclude him from a share in the portions. But where a younger child becomes the eldest without taking any part of the estate, whether or not he is entitled to share in the portions, is a question of intention. The bulk of certain real estate having been settled in strict settlement, and a term having been limited to trustees upon trust to raise portions for younger children, with a provision that if a younger son should become an eldest son, his portion should accrue to the survivors-one son became of full age, and joined the tenant for life in disentailing and resettling the estate, and died, leaving the tenant for life: Held, that the second son, who became the eldest son during the life of the tenant for life, but was prevented by the disentailing deed from taking the settled estate under the settlement, was not excluded from a share in the portions. Spencer v. Spencer, 8 Sim. 87, is in conflict with Peacock v. Pares, 2 Keen, 689, and it is to be followed in preference. Macoubrey v. Jones, 2 Kay & J. 684.

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SHIPPING.—Shipowner and master — Principal and agent― Contract by master Authority. The broad question raised in the following case was whether, if the commander of a ship spends his owner's money improperly, and has no money to repair the ship or to purchase the cargo, and borrows money for the purpose, the owners are or are not liable. It may be stated in reference to this question, that if the owners of a ship receive goods bought with the moneys of another person through an unauthorised contract by the captain of the ship, and it appears from the evidence that, but for that unauthorised contract, there could have been no goods at all, or that a certain part of the goods could not have been purchased, but that the ship must have returned empty, none of the authorities justify the proposition that either the captain of the ship or the person from whom he borrowed the money should have no remedy whatever against the produce of the cargo purchased under such circumstances. Even if it is assumed that the transaction was without the owners' knowledge, yet, if it be shown to have been intended for their benefit, and that they could not have had the cargo without such person's money, they must be liable for the advance. B., the master of a ship, being on a foreign station, was intrusted by A. with a sum of money to complete a purchase, which afterwards went off. B. thereupon expended part of the money in purchases of merchandise on behalf of the owners of the ship, and part in repairs. In order to reimburse A., B. drew a bill upon the owners for the amount deposited with him, and sent it to A., together with a bill of lading, by way of collateral security. The bill of exchange, upon

being presented for acceptance by A., was dishonoured, and the bill of lading repudiated by the owners of the ship, it being alleged that B. had cash and merchandise nough on board to bring home the ship and a cargo without borrowing money. A bill was filed by A. against the owners, praying for payment by them, or in default of payment for a declaration that he was entitled to a lien on the part of the cargo comprised in the bill of lading. At the hearing of the cause, inquiries were directed as to whether the whole, or any and what part of the money was applied to or for the use and benefit of the defendants, the owners: Held, that as the defendants, the owners, had had the benefit of the plaintiff's money (though upon an unauthorised contract), the plaintiff was entitled to a decree with costs. Want of authority for the contract was not a reason why the owners should have the benefit of the contract which was made without their authority. If the conduct of the master had been proved by the owners to be fraudulent, and his representations untrue, whether, in such a case, a person in the position of the plaintiff ought to bear the loss arising from the misconduct of the master, who was an agent of the owners, quære. Ashmall v. Wood, 30 Law Tim. Rep. 20.

SURETY [ante, pp. 54, 118].-Giving time to principal without consideration [vol. 2, pp. 307, 344; ante p. 123]. It is not every alteration of position that authorises a surety to come into equity and claim to be discharged from his liability. Equity will not interfere unless the creditor has in some way altered the position of the surety with reference to his remedies against the principal debtor. Where a creditor, knowing that the surety was in treaty with a third party for an arrangement under which the principal debtor was to relieve him from his suretyship, made to the principal a' promise for giving time, which was without consideration, and not binding, and the surety thereupon discontinued his treaty with the third party: Held, that the creditor did not thereby lose his remedy against the surety. Tucker v. Laing, 2 Kay & J. 745.

TRADE MARKS [vol. 3, p. 126].-InjunctionPiracy of trade mark-Fraud.-We have before noticed the subject of trade marks (vol. 3, p. 126), and we may now add that the remedy in cases of taking another person's trade mark is founded on the fraud committed by the person so using it, thereby falsely representing that the article on which the trade mark is placed has been made by the person whose trade mark is used. There is no property in a trade mark, but a person may acquire such a right in respect to it as to say, that nobody else shall use it. A.'s trade mark placed on goods, is an announcement to all the world that the goods

are made by A. No man has a right to state a falsehood, and commit a fraud; therefore, nobody but A. has a right to make that representation. If A. has, by the use of a particular mark on goods, fixed in the minds of the customers in any market the opinion that goods so marked are of A.'s manufacture, nobody but A. has a right to use that mark, and palm off a surreptitious article upon a purchaser. And so it is put by Lord Hardwicke in Blanchard v. Hill (2 Atk. 485), which was a suit for an injunction to restrain the defendant from using the mark of the Great Mogul, which the plaintiff alleged to be his own mark, granted to him by the Cardmakers' Company, under their charter. Lord Hardwicke refused the injunction on several grounds, stating, among others, that it was not the single act by the defendant of using the same mark that would entitle the plaintiff to a remedy; but doing it with a fraudulent design to put off inferior goods by this means, or to draw away customers from the plaintiff. These remarks will explain the following decision, it being borne in mind that the principle applicable thereto is, as above stated, that a man has no property in a trade mark, but he has a right to prevent anybody else from using it so as to attract custom, which otherwise would flow to himself: —C., the plaintiff, an alien ami, manufactured, in his own country, certain goods, which he distinguished by a peculiar trade mark. The goods obtained considerable reputation, both in his own country and in various other foreign countries, and also in some British colonies, but it was not shown that any of such goods had ever been even introduced or imported into England. The defendants were in the habit of manufacturing in and selling in this country goods similar in appearance, and with an exact copy of the plaintiff's peculiar trade mark. Some of these imitative articles where sold, and used abroad in countries where the plaintiff's goods had obtained a repution: Held, that the plaintiff was entitled to an injunction restraining the defendants from copying or imitating the trade mark. The Collins Company v. Brown, 3 Jur. N. S. 929.

TRUSTEE AND CESTUI QUE TRUST.— Breach of trust-Duty of trustee [vol. 2, pp. 310, 370]. -The cases of the liabilities of trustees newly appointed, for the continuance of the improper investments of their predecessors, deserve especial notice. In the case of Dix v. Burford (19 Beav. 409), the trust-funds devolved upon a trustee who was in an infirm condition, and the negligence consisted in the trustee not doing that which the testator himself had not done. The Master of the Rolls held, that the trustee was guilty of a neglect of duty. He said, "the moment Yells accepted the trust it became his duty to take proper steps to prevent his co-trustee

alone receiving the money." In the following case it appeared that in 1847 C. obtained a judgment against S. This judgment was not registered by C. Upon the marriage of C.'s daughter, in 1849, this judgment, along with other moneys, was assigned to H., upon the trusts of the settlement. H. took no steps to complete the registry, and subsequent incumbrances of S. obtained priority over it. It appeared that the attention of the trustee had been called to the position of the trust-fund. The judgment was not finally registered until the year 1854. The lands of S. were subsequently sold, but the fund did not reach C.'s judgment, and the only remaining property of S. was a life estate of little value: Held, that H. was liable for the amount of the judgment. Lester v. Lester, 30 Law Tim. Rep. 23.


BILL.-Written bill-Printed bill not filed in time [vol. 2, p. 344; 3 Id. 191].—A written bill had been taken off the file in consequence of the printed bill not having been filed in due time: this was proved to have been caused by a mere slip. Ordered that the written bill should be restored to the file, and that a printed copy should be received and filed as of the day on which the print ought to have been filed; and that, notwithstanding the General Order of 7th August, 1852, no costs should be taxed and paid to the defendants by reason of the print not having been actually filed on that day. Ferrand v. Corporation of Bradford, 21 Beav. 422.

COSTS.-Amended bill-Evidence on matters struck out. Where a charge against a defendant is struck out by amendment, the defendant is not justified in entering into evidence on the subject; and will be liable for the costs occasioned by such evidence being entered into. Stewart v. Stewart, 22 Beav. 393.

COSTS.-Fund standing to separate account— Costs not taxed; lumping sum allowed.-The Master of the Rolls, on a petition for transfer out of court of a fund standing to the separate account of the petitioner, no other person being interested, does not order taxation of the costs, but allows £10 for costs without taxation. Gower v. Stitwell, 21 Beav. 182.

COSTS.-Application to Parliament.-Where an application to Parliament is sanctioned by the court the costs of it will be allowed, although the application fails. Re The Bedford Charity, 26 Law Journ. Ch. 613.

DISMISSAL OF BILL [ante, p. 47; vol. 3, pp. 45, 127, 398].-115th Order of May, 1845— Dismissal of bill for want of prosecution-One of several defendants not required to answer amendments. -Where one of several defendants is not required to answer to an amended bill, he is not entitled,

under the 115th Order of May, 1845, to move, at the expiration of fourteen days, to dismiss for want of prosecution, when a co-defendant is required to answer. Brown v. Butter, 21 Beav. 615.

EVIDENCE.-Special examiner [vol. 2, p. 223]Fees.-The allowance to a special examiner is five guineas a day, and to his clerk five shillings a day. The length of the meeting makes no difference; the examiner is bound to give the whole of a legal day. No fee is allowed for a preliminary perusal of the papers in the cause. Payne v. Little, 21 Beav. 65.


EVIDENCE OF DEATH. - Recital in private act of Parliament.-As stated in the "First Book," p. 25, a mere recital in a statute is not conclusive. In the following case, the Master of the Rolls held that a recital of a death contained in a private act of Parliament sixteen years old not to be sufficient evidence of the death. Cowell v. Chambers, 21 Beav. 619.

EVIDENCE.-Vivâ voce examination- Accounts -Producing documents [vol. 3, p. 258].-A defendant having brought in and vouched his accounts may be examined vivâ voce thereupon, and may be required to produce documents; but notice must be given of the points on which it is desired to examine him. Wormsley v. Sturt, 22 Beav. 398.

INJUNCTION [vol. 3, p. 191].-Service of notice of motion-Leave for, before bill filed.-Application for leave to serve a notice of motion for an injunction before bill filed refused, but leave given to serve notice, with copy of bill. Simmons v. Heaviside, 22 Beav. 412.

MORTGAGE. Administration Costs of suits [ante, p. 47; vol. 3, p. 398].-The following case may be considered as illustrating our remarks in vol. 3, p. 398. In a suit for administration, all proper and necessary parties are paid their costs in the first instance, and before the fund is administered. But in a suit by a mortgagee, or for the benefit of mortgagees, to ascertain priorities upon an estate, or upon a fund which is the produce of the estate (after payment of such costs as may be proper to the plaintiff in the first instance, where all persons obtain the benefit of the suit), the costs of the mortgagees are added to their mortgage securities. Ford v. Earl of Chesterfield, 21 Beav. 426.

PRODUCTION OF DOCUMENTS [ante, pp. 47, 48, 119; vol. 2, p. 373; vol. 3, pp. 35, 398].— Court rolls of manor.—Under an order for production of documents, court rolls of a manor (as a merchant's account books) are merely to be produced for inspection, and not to be deposited in the court. Carew v. Davis, 21 Beav. 213.

PUBLIC COMPANY.-Winding-up acts-Interlocutory inquiries-Costs.-If the right to an order

to wind up a company is established, the costs of intervening proceedings arising out of an opposition to the order must be borne by the respondents. Re The Bosworthon Mining Company, 26 Law Journ. Ch. 612.

SOLICITOR AND CLIENT [ante, p. 89]Taxation-Costs-Bankruptcy-More than a sixth off [vol. 3, p. 53].-The assignees in bankruptcy of a solicitor, whose bill has been referred for taxation on the application of the client, must pay to the client the costs of the reference where more than one-sixth has been taken off the bill. Re Peers, 21 Beav. 520.

SOLICITOR AND CLIENT.-Balance of trust fund not ordered to be paid to cestuis que trust-Breach of trust.-On ordering taxation of a bill of costs in respect of a trust estate, the court will not direct any money found due from the solicitor to be paid to the cestuis que trust, for the solicitor would have no indemnity against a breach of trust. Re Hallett, 21

Beav. 250.

SOLICITOR AND CLIENT.-Taxation-CostsNeglect to deliver bill-Extension of time.-A solicitor being ordered to deliver his bill within fourteen days, and on his failing to do so, a motion being made for the second order, and the solicitor being allowed further time: Held, that he must pay the costs of the motion. Re Dendy, 21 Beav. 565.

SOLICITOR AND CLIENT [vol. 3, pp. 219, 298].-Taxation-Several bills, order to tax some only of them.-A solicitor claimed five bills of costs: Held, that an order of course obtained by the client for taxation of two of the bills was irregular. In re Law and Gould, 21 Beav. 481.

STAYING PROCEEDINGS.-Concurrent suits -Consolidating-Transferring.-Where two suits are instituted for the same object in different courts, the parties ought to apply to the Lord Chancellor to have them transferred to one court. If they do not, the court itself will make the application. Swale v. Swale, 22 Beav. 401.


BILL OF EXCHANGE.-Surety · Giving time Release of acceptor who is surety [ante, p. 123].-The holder of a bill had notice that the acceptor was surety for the drawer. By giving time to the drawer, he was held to have released the acceptor in equity, if not at law. The acceptor is not bound to use the giving of time as a defence at law; but may, at the risk of costs, defend the action on other grounds, and then resort to equity for an injunction. Davies v. Stainbank, 6 De G. Mac. and Gor. 679.

CONSIDERATION.-Promise not to sue debtor -Nudum pactum.-A promise, without consideration, not to sue a principal debtor is binding neither at law nor in equity., Where, for instance, a credi

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