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tributories may apply to the court to have his name removed from such list. By sec. 17 of the Windingup Act, 1849, such person may apply to the master to review his decision, but it appears from the following decision that he is not bound to pursue this course-A joint-stock company was provisionally registered in October, 1846. In November, 1816, B. applied by letter for 100 shares. He received a letter in reply, stating that seventy shares had been allotted to him, and a deposit of 1s. a share was paid by B., or on his behalf, on the 8th December, 1846. On the 26th February, 1847, the company was completely registered. The deed of settlement, dated 17th February, 1843, was never executed by B., but his name appeared in one of the schedules as the holder of shares, the deposit on which was stated to be part paid. On the 1st February, 1847, a call of 10s. a share was made by the directors, made payable on the 22nd February following. A payment of £3 10s. on account of this call appeared in the books of the company, to the credit of B., but he denied having paid anything on account of this or any subsequent call A winding-up order having been afterwards obtained, B. was, after some discussion, placed by the master on the list of contributories, and paid £150 in respect of calls, to the official manager. B. moved under the 99th section of the Winding-up Act of 1848, to be at liberty to serve a notice of motion for the removal of his name from the list, and for repayment by the official manager of the £150. It was objected that the application was unnecessary, owing to the provisions of the 17th section of the Act of 1849, which gives the master power to review his own decisions. But it was held, that notwithstanding the 17th section of the act of 1849, the 99th section of the Act of 1848 still remained in force, and that the present motion might be regularly made. The court refused to impose terms upon the appellant that he should undertake not to ask for the repayment of the £150, and that he should undertake to pay the costs of the present motion. Re The Merionethshire Slate and Slate Slab Company, Exp. Day, 30 Law Tim. Rep. 51.

RESTRAINT OF TRADE [vol. 3, pp. 263, 286]-Injunction - Master and servant - Soliciting custom.-An agreement by a servant not to carry on the same trade as that in which his employer is engaged for a limited time after he leaves his service, is founded on a sufficient consideration, viz. the wages during his service. A servant carrying out milk at weekly wages, with trade allowances, will be restrained from trading on his own account in contravention of an agreement signed by him not to carry on the same business, &c., within the same district, for two years after ceasing to be employed

or leaving the service of his master, his successors, or assigns. Benwell v. Inns, 26 Law Journ. Ch. 663.

SOLICITOR AND COUNSEL.-Extent of authority-Compromise. In the following notorious case, the Master of the Rolls has decided that neither a solicitor nor a counsel retained to conduct a cause has any implied authority to compromise it. Swinfen v. Swinfen, 6 Week. Rep. 10; 3 Law Chron. pp. 158, 271.

TRUSTEES [ante, pp. 86, 118, 119].- Trustee Relief Act [ante, pp. 13, 14] — Costs.-The Trustee Act is obviously framed to enable trustees, with. funds in their hands, to relieve themselves from any responsibility which might arise or be incurred, and they are justified, except in very plain cases, in the payment of a fund into court. On the other hand trustees are not so justified where they do not act bonâ fide, but from capricious or worse motives, and from a desire to vex, annoy, oppress, or injure the parties with whom they are dealing. The case of Woodburn's Trust (ante, p. 86) is the leading case in this sense, that it established the jurisdiction which the court had, to make trustees pay costs; and the Master of the Rolls proceeded on the ground that a trustee might, in the first instance, decline to run any risk, but that he was not entitled, after leading on the parties to incur expense in proving their title, suddenly to pay the money into court, where he evidently acted from caprice without any assignable reason. When the case came before the Lords Justices, they thought it a case of oppression. In the following case, it appeared that H., being entitled in remainder to £500 under a will, makes an assignment for the benefit of his creditors, and becomes insolvent. The legacy falls into possession, and H. sends a written notice to the surving executor of the will not to pay it to any one but himself. A claim is also made by the trustees of the deed, and the executor pays the £500 into court under the Trustee Relief Act. Upon a petition for payment out of court, asking the costs against the executor: Held, that he was justified in paying the money into court, and must have his costs. Re Headington, 6 Week. Rep. 7.

WILL.-Direction by widow for payment of debts of late husband - Composition — General release— Dilapidations.-A mere direction in a will to pay debts will not necessarily include those which have been previously released by a formal deed. The rector of a parish died insolvent, leaving the rectoryhouse dilapidated. He was indebted to W., who, with other creditors, received a composition for their debts from the widow and administratrix of the deceased, and they executed a general release by signing their names against the amount stated in the

schedule. W. succeeded to the rectory, and he made a further claim of £200 against the estate of the insolvent for dilapidations. The insolvent's widow afterwards, by her will, charged her real and personal estate with the payment of her husband's debts. In a suit for the administration of her estate: Held, that the release discharged all the claims of W. against the estate of the insolvent, and that the claim for dilapidations was not payable under the I will of the testatrix. Bissett v. Burgess, 26 Law Journ. Ch. 697.


ADMINISTRATION.-Order for an account of liabilities Motion-13 & 14, Vic. c. 35 [see ante, p. 13]. Where an order for an account of debts and liabilities is necessary under Sir George Turner's Act, 13 & 14 Vic. c. 36, s. 19 (ante, p. 13), such order may be mentioned to the court; and, semble, it should be by motion, not by petition. Re Brown, 6 Week. Rep. 5.

COPYHOLD COMMISSIONERS. Costs of appearance on petitions where no opposition [ante, p. 48]. Formerly it was the pre ce to give every person served with a petition the costs of his appearance, although such appearance is unnecessary; but this, it seems from the following decision, is confined to petitions in a cause (see Day v. Croft, 19 Beav. 518). Where copyhold lands had been enfranchised under the Copyhold Act, 1852, and the money had, under the provisions of the act, been paid into the bank to an account, “Exp. The Copyhold Commissioners:" Held, that the commissioners are entitled to the costs of appearance on the petition of the lord to have the money invested, although no opposition was offered, or objection made, to the prayer of the petition. Exparte Queen's College, Cambridge, 6 Week. Rep. 9.

LEASES AND SALES OF SETTLED ESTATES ACT [ante, pp. 12, 48]-Married woman abroad-Commission.-The 38th section of 19 & 20 Vic. c. 120 (vol. 3, pp. 105-111), does not authorise a commission to examine a married woman abroad. The solicitor appointed by the court must be in actual practice, and not the solicitor of the husband. Re Noyes, 6 Week. Rep. 7.

PRODUCTION OF DOCUMENTS [ante, pp. 47, 48; vol. 3, pp. 35, 127, 375, 398].-Privileged communications [vol. 3, p. 297]-Agent for getting up evidence.-In Curling v. Perring (2 Myl. and K. 380), the Master of the Rolls decided that a correspondence having taken place between the defendant's solicitor, and a person not a party to the suit, after the dispute which was the subject of the litigation had arisen, the plaintiff was not entitled to the inspection of it; and that, if the right of inspec

tion were allowed in such a case, it would be impossible for a defendant to write a letter for the purpose of obtaining information on the subject of the suit without the liability of having the means of his defence disclosed to the opposite party. The case of Steele v. Stewart (1 Phil. 471), went, perhaps, a step further. The communications there were made between the person sent out to collect evidence, and were partly with the defendant and partly with his solicitors; and Lord Cottenham held that he must be taken to be the agent of the solicitor. In the following case, it appeared that the defendants in a suit, by the advice of their solicitor, sent an agent abroad for the purpose of collecting and getting up the evidence in support of their case; and it was held, that the reports and letters transmitted by the agent to his principals, relating to such evidence, were privileged. Lafone v. Falkland Islands Co., 6 Week. Rep. 4.

TRANSFER OF FUND.—Order for transfer of fund on motion.-Where the title to a fund carried over to a legacy account is clear, the court will, on motion, order a transfer of such fund. Linford v. Cooke, 6 Week. Rep. 5.


ACTION. When maintainable-Statutory obligation-Remedy, whether exclusive or cumulative-Summary process-18 & 19 Vic. c. 120, ss. 105 and 225.The following illustrates the rule stated in the First Book, p. 22, as to no action being maintainable where a penalty is imposed by statute recoverable before justices. Where an act of Parliament creates a pecuniary obligation, and gives a remedy by a particular mode of proceeding, a question arises on the particular terms in which it is given - viz., whether

it is exclusive or cumulative. The 225th section of the Metropolis Local Management Act provides that where the amount of any costs or expenses is by that act directed to be ascertained or recovered in a summary manner, or the amount of any damages, costs, or expenses is directed to be paid, and the method of ascertaining the amount or enforcing payment is not provided for, such amount shall in case of dispute be ascertained and determined by, and shall be recovered before, two justices. The 105th section provides for paving new streets, and that the owners of the houses forming the street shall on demand pay to the vestry the amount of the estimated expenses, to be determined by the surveyor for the time being, and the actual expenses, in case they exceed the estimate. The 217th section makes the occupier liable in the first instance, giving him a power to deduct the amount so paid from his rent: Held, on demurrer, that the remedy given by the statute is exclusive, and therefore that

no action lies at the suit of the vestry against an owner for the amount of such expenses. The Vestry of St. Pancras v. Batterbury, 26 Law Journ. C. P. 243.

ARREST.-Malicious-Action.-In an action for a malicious arrest, such arrest being for a larger amount than was due upon a judgment, the plaintiff must show special damage. Thus in the case of Churchill v. Siggers (3 Ell. and Bl. 929), the Court of Queen's Bench, in an elaborate judgment, held an action to be maintainable for a malicious arrest without reasonable or probable cause, for more than remained due upon the judgment, special damage being shown to have been sustained by the plaintiff in consequence of such arrest. In the following case the declaration stated that the defendant recovered judg ment against the now plaintiff for £265 9s. 6d., and afterwards obtained from certain debtors of the plaintiff, as garnishees of a certain debt then owing to the plaintiff, the sum of £20 13s. 11d. in payment and satisfaction of so much of the said £265 9s. 6d., and that the defendant afterwards maliciously sued out a ca. sa. for the whole amount, and indorsed the writ with directions to the sheriff to levy the whole amount, and delivered the said writ to the sheriff, who afterwards arrested and imprisoned the plaintiff under the said writ to satisfy the defendant the whole of the said sum of £265 9s. 6d.; and that the plaintiff, by reason of the premises, was necessarily put to and incurred divers costs and expenses in and about his maintenance during the said detention, and in and about obtaining his discharge. Upon demurrer, it was held, in accordance with Churchill v. Siggers (3 Ell. and Bl. 929), that such action is maintainable if special damage be shown, and that special damage was sufficiently alleged in the declaration.


Jennings v. Florence, 30 Law Tim. Rep.

CORPORATION.-Simple contract by corporation -Adoption - Pleading.—The following decision of the Court of Queen's Bench in Ireland supports what is stated in the "First Book, p. 96, as to a corporation being liable on a simple contract. The Chief Justice, speaking of the lea of want of seal, said he should like to know whether that defence had ever been extended to the case of goods sold and delivered: adding that he knew of no such case. He, however, admitted that when parties rest on the contract alone, there may be a question whether a corporation can be bound by a contract not under seal; but (he said) even that question had been now settled, and that on no novel principle--namely, that a company incorporated for the purpose of a particular trade is entitled, as a matter of convenience, to make contracts not under seal respecting the subject-matter of that trade; this is clear on the

cases of Henderson v. Australian Steam Packet Co. (5 Ell. and Bl. 409), and Renter v. Electric Telegraph Company (6 Id. 341); but no reference was made to the dissenting opinion of Lord Wensleydale, ante, p. 151. It appeared in the following case that the promoters of the Beet Sugar Company having entered into a simple contract for the supply of goods to be used for the purposes of the company, and the goods having been supplied after incorporation; in an action against the corporation: Held, first, that the defendants might be liable on the simple contract, and (dissentiente Crampton, J.) that there was evidence to go to the jury of adoption of the contract after the incorporation of the company; and, secondly, that the corporation having, as such, pleaded a conditional contract, of which they alleged a breach, they thereby admitted on record a contract under seal (per Lefroy, C. J.). M'Andrew v. The Irish Beet Sugar Company, 30 Law Tim. Rep. 55.

DISTRESS.-Landlord and tenant [ante, pp. 50, 91].-Impounding-Tender of rent-11 Geo. 2, c. 19. -By the 11 Geo. 2, c. 19, a distress taken for rent may be impounded on the premises. A tender of rent after the distress is impounded is too late. Where a landlord sends in a person to distrain for rent upon the tenant's premises, but none of the goods are removed, and by the tenant's request nothing is done but an inventory taken and a man left in possession: Held, that this is an impounding under 11 Geo. 2, c. 19, and that the landlord was not bound afterwards to accept a tender of rent. Tennant v. Field, 6 Week. Rep. 11.

INTEREST.-Not after judgment-Action for interest agreed to be paid upon a bill, if such bill were not paid at maturity, after judgment recovered in an action upon the bill itself for the amount of bill and costs. When judgment is recovered on a contract or bill of exchange, the claim for interest in respect thereof is passed into res judicata, and therefore ceases, though it may be payable in respect of the judgment under the statute giving interest on judgments recovered. In the following case, it appeared that the defendant, jointly with another person, undertook, if a bill of exchange drawn by the defendant in favour of the plaintiff were not wholly paid at maturity, to pay as interest thereon £20 for each month during which the bill should remain unpaid after maturity. The bill was not paid at maturity, and the plaintiff paid the defendant for the amount of the bill, and the interest £20 per month, as appeared by his particulars of demand specially indorsed. He declared upon the bill only, and recovered judgment by default for the amount of the bill. He afterwards brought an action for the interest as per agreement: Held, that he could not recover for interest subsequent to the judgment, the

claim being then res judicata, but that he was entitled to interest prior to the judgment, as he could not have recovered it in the first action, there being no count upon the agreement, or for interest. Florence v. Jennings, 30 Law Tim. Rep. 53.

LIFE INSURANCE [ante, p. 51].— Action against company by assured-Transference of fundsCeasing to carry on business.-The plaintiff effected a policy of insurance in the company of the defendants by the terms of which the funds of the company were, according to their deed of settlement, to be subject to pay, &c.; and no shareholder was to be individually or personally liable beyond the amount unpaid of his shares. The defendants transferred their funds to another company, and ceased to carry on business. The plaintiff, before the happening of the contingency, on the happening of which the sum insured would become payable, sued the defendants for transferring their funds, and ceasing to carry on business: Held, that the action would not lie. King v. The Accumulative Life Fund and General Assurance Company, 6 Week. Rep. 12.


MALICIOUS PROCEEDINGS AT LAW.Insolvent - Maliciously procuring order of imprisonment Statute of Limitations [ante, pp. 53, 54].— Action for maliciously procuring evidence against the plaintiff whereby he was imprisoned for sixteen months by order of commissioner of Insolvent Court: Held, that such order is the act of the court, and, therefore, the plaintiff cannot maintain his action six years after the date of such order for imprisonViolet v. Simpson, 6 Week. Rep. 12. NEGLIGENCE.-Public Health Act-Negligence of contractor [First Book, 105]-Liability.-In the cases of injuries from negligence, the principle respondeat ouster, whilst it makes the superior liable, does not relieve the inferior from liability, where through his negligence loss has been sustained. In cases of public acts, parties acting under them are exempted from liability in many cases in which otherwise they would be liable. Sec. 140 of the Public Health Act, 1848, enacts, that no matter, &c., done by any officer or person acting under the direction of the local board, shall, if the matter, &c., were done bona fide for the purpose of executing the act, subject him personally to any action, liability, &c., whatsoever. Under this provision, if there is no negligence, a party doing an act in obedience to the board of health is not liable-in that case he is very properly absolved, and the superior alone is liable; but if he is guilty of negligence in doing the act, and damage ensues, he is personally liable. A contractor employed by a local board to execute a work on a highway is not relieved by s. 140 of the Public Health Act, 1848, from liability for negligence in the execution of the work, whereby a

third party suffers damage. Arthy v. Coleman, 6 Week. Rep. 34.

PATENT [vol. 2, p. 231; vol. 3, p. 396; vol. 1, p. 369]. Want of novelty - Identity of mode of application.-A patent was taken out in 1853 for improvements in finishing cotton and linen yarns. In 1856, another patent was taken out by the owners of the former patent for improvements in finishing yarns of wool or hair: Held, that the patent of 1856 was bad, the machinery and mode of application to the new material being the same as in the patent of. 1853, and therefore, the only difference being in the application of the same invention to another material, there was no novelty. Brooke v. Aston, 30 Law Tim. Rep. 131; 6 Week. Rep. 42.

PATENT [vol. 3, pp. 159, 183].-Infringement of patenl-Title of assignee-Registration-PleadingNotice of objection.-The provisions contained in the 5 & 6 Will. 4, c. 83, and the 15 & 16 Vic. c. 83 (see 1 Law Chron. 275), as to notice of objections in actions for infringement of a patent, are confined to objections affecting the validity of the letters patent, and the defendant may object to the validity of an assignment of the patent though no notice of such objection has been given. To a declaration for the infringement of a patent, which alleged that by indenture the letters patent 66 were duly assigned to the plaintiff," the defendant pleaded that the letters patent were not assigned as alleged: Held, that the plaintiff's title under the assignment was put in issue, and the assignment not being registered in pursuance of the 15 & 16 Vic. c. 83, s. 35, that the verdict was properly entered for the defendant upon the plea. Chollet v. Hoffman 26 Law Journ. Q. B. 249.

RAILWAY AND CANAL TRAFFIC ACT [vol. 3, pp. 130, 401].—17 & 18 Vic. c. 31-Tolls.— The court will, by injunction under 17 & 18 Vic. c. 31, enjoin a railway company to give the same advantage, as to the payment of tolls, to persons who do not, as to persons who do, send their goods to the railway through particular agents. Baxendale v. The North Devon Railway Company, 30 Law Tim. Rep. 134; 6 Week. Rep. 38.

SHIPPING.-Merchant Shipping Act, 1854-6 Geo. 4, c. 125, s. 59—Compulsory pilotage within London district.-The exemption of certain vessels from compulsory pilotage under 6 Geo. 4, c. 125, s. 59, is still in force under 17 & 18 Vic. c. 104, s. 353, although 6 Geo. 4, c. 125, is repealed by s. 17 & 18 Vic. c. 120; and such exemption is not repealed by 376 of the 17 & 18 Vic. c. 104, which, taken with s. 379, extends the exemptions expressly retained by s. 353 to certain other vessels. Reg. v. Stanton, 30 Law Tim. Rep. 118; 6 Week. Rep. 39.

STATUTE OF LIMITATION [vol. 3, pp. 80, 157, 217].-Mercantile Law Amendment Act, 1856, 8. 10-Immediate operation of-Disability of imprisonment [vol. 3, pp. 89, 91]-Right of prisoner to allowances under 53 Geo. 3, c. 113, lost by title to discharge under Insolvent Act.-By sec. 10 of the 19 & 20 Vic. c. 97, it is enacted that "no person who shall be entitled to any action or suit with respect to which the period of limitation within which the same shall be brought is fixed by the act 21 Jac. 1, c. 16, &c., shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed, &c., in the cases in which imprisonment is now a disability by reason of such person being imprisoned at the time of such cause of action or suit accrued." It has been decided by the Court of Queen's Bench that the above 10th section of the Mercantile Law Amendment Act, 1856, takes away the disability of imprisonment from persons who were imprisoned, and whose causes of action accrued, but who had not commenced their actions before the passing of the act. A prisoner for debt who is entitled to be discharged under the act for the Relief of Insolvent Debtors, is not entitled by remaining in prison to allowances under 53 Geo. 3, c. 113. Comill v. Hudson, 30 Law Tim. Rep. 130; 6 Week. Rep. 37.

TROVER.- Evidence of conversion-Statement of defendant-Refusal to deliver up alleging the thing was burnt. In an action for the conversion of a bill accepted in blank, the evidence was that it had been given by the plaintiff to a brother of the acceptor, the defendant, to get a mistake in the defendant's signature rectified; and that the defendant, on being applied to for the document, had said, "I cannot give it up because it has been burnt." There was no other evidence that it had ever even come to his hands, but the defendant was not called at the trial: Held, that there was evidence from which the jury might infer that the defendant had destroyed the acceptance. M'Kewan v. Cotching, 6 Week. Rep.




The Act to amend the Law relating to Divorce and Matrimonial Causes in England, with Notes on the Principles and Practice of the Ecclesiastical Courts in similar Cases, and the Changes introduced by the present Act. By M. C. MERTINS SWABEY, D.C.L. London: Shaw and Sons.

THE time is fast approaching for the new act relative to divorces to be put in operation. Already the judge of the new court has been nominated; and Mr. Justice Cresswell is known to be trying his

'prentice hand in matrimonial law, preparing for the heavy conflict, which is evidently about to be waged, so soon as the "Order in Council" appears. It will soon be seen whether our ancestors were really wiser than ourselves; whether their notion of the indissolubility of the marriage tie was better than our loosening process. They appear to have formed their notions of the marriage status much upon the principle which governed the doctrines relating to real property: as in the latter they could only allow a plenum in the shape of a feudatory for life at the least (scorning to notice the limited and uncertain interest of a termor, though extending to a thousand years), so in the former they would not admit of less interest than for life-in the language of old Britton, "per demurrer ensemble come un chaire à touts lour vies sans espoier de departure." We demur, indeed, to this practice, and have, by a new Act, given both husband and wife "espoier de departure," though, perhaps, not quite French—leave, any more than Britton's language can be called modern French-though we may notice, en passant, that it is rather appropriate French for us, being such as Britons usually make use of at the present day, when they essay in Paris to pass themselves off as real natives. We have not yet, indeed, arrived to that point at which it would be lawful for a man and woman to contract matrimony for a certain number of years, but we have made the former enduring life interest defeasible on certain events-a sort of marriage durante bene placito, or more precisely, but not unfortunately much opposed, durante castitate. There is little doubt that the new court will commence with a good crop of cases, for we understand the act is very acceptable to many, married couples, and there has not been a statute which has had so great a sale since the Abolition of Arrest Act, of which many thousand copies were sold to persons who were under the pleasant impression that there was no longer any need to pay their debts.

There can be little doubt that the act will afford additional employment to the profession, and in that light it is one of considerable interest. At the same time, the novelty of the practice will make great demands on the practitioner, and cause him to seek a guide through the labyrinthine clauses of the act, particularly as the matter smacks of mystery, by having been the peculiar province of proctors and civilians; and if the latter possessed much civility, it is generally believed they kept it to themselves, and certainly it never extended its influence to the proctors. The profession will, therefore, be glad to have a work from one who is able from former labours to guide them safely, so far as the old may serve as a precedent for the new practice. We have not space to speak more fully of Dr.

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