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register rectified in the manner above mentioned, as to all the chase the whole of the debtor's estate and effects for 60001., to be allottees but two, who were aware that the contract had not been paid in three instalments, in four, eight, and twelve months. registered. They cited the New Zealand Kapanga Gold Mining This arrangement was carried out, and the instalments were duly Company (Weekly Notes, 1873, p. 156).
paid, and a deed was executed by which the trustee assigned to Fellows appeared for members of the company.
Blackburn all the estate which had passed to him under the THE VICE-CHANCELLOR directed the names of the allottees, proceedings or which he had in any way power to dispose of. other than the two, to be removed from the register, but made Blackburn then took the debtor into partnership with him. In no other order.
February, 1874, the debtor applied to the trustee to call a meetSolicitors : Evans, Foster, & Rutter,
ing of the creditors to consider the propriety of granting him an order of discharge. On the 6th of March a meeting was held for this purpose, and it was proposed that an unconditional dis
charge should be granted. The resolution was not, however, BANKRUPTOY. Ex parte NADEN.
June 8. carried by the requisite statutory majority. On the 6th of May, In re Wood.
1874, on the application of the debtor, the registrar made an Proof-Debt "incapable of being fairly estimated "-- Separation order declaring that the effect of the resolution of the 13th of Deed - Annuity-Bankruptcy Act, 1869, s. 31.
March, 1873, and the deed of assignment was to vest in Black
burn all property vested in the trustee after the commencement This was an appeal from a decision of the judge of the Kingston County Court.
of the liquidation, or which might devolve on him during its
continuance, and restraining the members of the committee of W. R. Wood went through the ceremony of marriage with the
inspection, and some other creditors (who were named) from sister of his deceased wife, and lived with her as his wife. Dif
seizing or interfering with the profits made by Blackburn or the ferences arose, and they agreed to live separately, and on the 5th of October, 1858, a deed in the ordinary form of a separation
debtor in connection with the business, and from taking any deed between husband and wife was executed, in which she was
proceedings against the debtor or his property in respect of their described as his wife. By this deed Wood covenanted that the
The trustee and the creditors thus restrained appealed. lady should live separately, and that he would during their joint lives pay to her, or to the trustees of the deed for her use, an
De Gex, Q.C., and Jordan, for the appellants.
Roxburgh, Q.C., and Beaumont, for the debtor, annuity of 401., and the trustees jointly and severally covenanted
THE CHIEF JUDGE held that as the creditors had sold the that the lady should not molest Wood or take proceedings against him to compel him to live with her; that she should not
whole of the debtor's property it would be inequitable for them reside within five miles of his house; and that the trustees
to claim the profits of the business merely because no express would indemnify Wood from all debts thereafter contracted
od order of discharge had been granted. He therefore dismissed by her, and all proceedings on account thereof. There was a
the appeal. proviso that if Wood and the lady should at any time thereafter
Solicitors : Shum, Crossman, & Crossman ; Laroyd, Learoyd, de
June 8 1870. He married again, and the lady married and became a
In re POTTER. widow. On the 26th of June, 1871, Wood was adjudicated a
Mortgage by Tenants in Common Separate Attornment as to each bankrupt. The trustees of the deed sought to prove for the
Moiety at a separate Rent - Distress - Seizure of Chatleis value of the annuity, and for the arrears due at the date of the
belonging to the Mortgagors as Partners-Bankruptcy Act, 1869, bankruptcy. The judge admitted the proof for the arrears, but
s. 34. thought the value of the annuity incapable of being fairly esti. mated, and therefore not provable.
This was an appeal from a decision of the judge of the Croydon The trustees of the deed appealed.
County Court. H. W. Lord, for the appellants.
Potter and Ferridge on the 29th of August, 1867, execated a J. Wilkinson, for the trustee in bankruptcy.
mortgage of land of which they were seised as tenants in THE CHIEF JUDGE said that the proviso contemplated the
common in moieties, to secure 20001, and interest at 5 per cent, deed becoming void on the parties living together again as hus
which they jointly and severally covenanted to pay, and each of band and wife. This was a thing which, according to law,
them separately attorned tenant to the mortgagors in respect of they never could do, and therefore the proviso might be disre
a moiety of such part of the mortgaged property as was in their garded altogether. The annuity must be treated as simply one
I joint occupation, at the separate rent of 501. The mortgagors for the joint lives, and as such its value could be fairly esti
| were in partnership as brickmakers, and carried on their business mated, and must be admitted to proof.
on that part of the mortgaged property which was in their joint Solicitors: E. M, Hore; Wilkinson & Howlett.
occupation. On the 10th of February, 1874, the mortgagees issued separate distress warrants against Potter & Ferridge for 3001., being six years' rent of the undivided moiety of each mort.
gagor of the premises. Each warrant authorized the bailiff to BANKRUPTCY. Ex parte TINKER.
June 8. seize the goods of the person against whom it was issued, on In re FRANCE.
the premises in the possession of the two. Under these warLiquidation-Sale of all Debtor's Estate for a gross Sum-Refusal
rants certain bricks belonging to the two mortgagors as partners of Creditors to grant an Order of Discharge-Right of Creditors
were seized. On the 13th of February, the mortgagors were to future Property of the Debtor-Bankruptcy Act, 1869, s. 125,
adjudged bankrupts. The judge held that this seizure was illegal,
and that only the separate property of each mortgagor could be sub-s. 9.
seized, and restrained the mortgagees from proceeding with their This was an appeal from a decision of the registrar of the distress. Huddersfield County Court, acting as judge.
The mortgagees appealed. On the 1st of February, 1873, J. W. Franco filed a liquidation Winslov, Q.C., and Oswald, for the appellants. petition, and on the 19th of February the creditors resolved on a Benjamin, Q.C., and E. C. Willis, for the trustee. liquidation, and appointed a trustee and a committee of inspec- THE CHIEF JUDGE affirmed the decision of the county court tion. On the 13th of March the creditors resolved that the judge. trustee should accept an offer made by a Mr. Blackburn to pur- | Solicitors : W. Foster ; Chauntrell & Pollock.
Numerous other bets were made on the pigeon match, and afterwards a foot race took place at which bets were made in the same manner as on the pigeon match.
The appellant was standing near the policeman, and could hear what the book-makers and the other persons said.
It was contended on behalf of the appellant that the ground Q. B. HORNE v. LYMINGTON RAILWAY COMPANY. June 2. / was not "a place” within the meaning of 16 & 17 Vict. c. 119, Railway_" Superfluous Land"-Lands taken by voluntary Agreement- Railways Clauses Consolidation Act, 1845 (8 Vict. c. 18),
The justices convicted the appellant. 8. 127.
Forbes, for the appellant.
The respondent did not appear. The defendants, by their Act of 1856 (19 & 20 Vict. c. lxxi), THE COURT (Lush and Archibald, JJ.) held that the ground after reciting the deposited plans, &c., were authorized (by s. 18) was a "place" within the meaning of 16 & 17 Vict. c. 119, s. 3, to take the lands for the purpose of constructing a railway and that there was evidence that it was kept for the purpose of and landing-place; by s. 28 the railway and landing were to be betting. completed within four years from the passing of the Act.
Attorneys for appellant: Blakeley & Beswick, for Ibberson, By s. 40 “the company may purchase from the owners thereof Dewsbury. upon terms to be mutually agreed upon," a certain bridge, "together with all rights, roads, lands, buildings, and other works connected therewith, and also all tolls in respect of the same; Q. B. CUTLER, APP.; TURNER AND ANOTHER, RESPS. June 3. and after the purchase the company may demand and take all Master and Servant-Absenting from Service-Second Offencethe tolls which may now be legally taken.”
Master and Servant Act, 1867 (30 & 31 Vict, c. 141), s. 9. For 100 years before the passing of the Act there had been connected with the bridge certain lands consisting of land on
The appellant had agreed to serve the respondents as a fireboth sides of the river, and the bridge, works, tolls, &c., wero
iron forger, and was, on the 28th of October, 1873, summoned known as the “ Bridge Estates." The company, after negotia
under "The Master and Servant Act, 1867," for absenting himtions, purchased of the proprietors of the bridge the said estates
the said states self from the service of his employers, the respondents, without in September, 1857, which were duly conveyed to the company
lawful excuse, under 30 & 31 Vict. c. 141, s. 9, and ordered by in 1858; and the company then expended a large sum in re.
the magistrate to pay the sum of 111. 14s, to his employers as building the bridge, and altering and improving the approaches.
compensation to them for the breach of the contract. The plaintiff, as owner of adjoining land, brought ejectment,
The appellant had previously absented himself from the serclaiming certain of the bridge lands as "superfluous lands | vice of the respondents on the Ist of April, 1873, and was sumwithin s. 127 of the Railways Clauses Consolidation Act. None
moned for so absenting himself, and on the 13th of May was orof the lands claimed were within the lines of deviation of the
dered to pay the sum of 1ll. 8s, to his employers as compensarailway.
tion for the breach of contract, but the sum of 117.8s, not having Kingdon, Q.C. (Cowie with him), for the plaintiff.
been paid, and the appellant not having any goods and chattels Pinder, for the defendants.
whereon to levy, he was adjudged to be imprisoned in the THE COURT (Mellor Lash, and Archibald. JJ) gave judgment house of correction for three months. The amount was then for the defendants. It was clear on the proper construction of
of paid on his behalf before his actual imprisonment. The defen8. 127, and it had been so decided in Glasgow Union Railway Comel
dant not having returned to his work was, on the 6th of June, pany v. Caledonian Railway Company (Law Rep. 2 H. L., Sc. 160),
1863, again summoned, and on the 7th of July ordered to find upon the corresponding section in the Scotch Act, and assumed
security for the fulfilment of his contract, and in default to be in May v. Great Western Railway Company (Law Rep. 7 Q. B.
imprisoned until he should find security, but so that the term 364, and 8 Q. B. 26), that the enactment only applied to lands
of his imprisonment should not exceed three months. This taken compulsorily, and not to lands which a railway company
order was not complied with, and the appellant underwent the were authorized to pnrchase by voluntary agreement.
three months' imprisonment; and on his liberation he continued Attorney for plaintiff : J. E. Coxwell.
to absent himself from his employment. The summons of the
28th of October was then taken out and the order thereon made. Attorneys for defendants: Hume, Bird, & Bird, for Moore & Jackman, Lymington.
The question for the opinion of the Court was whether the orders of the 13th of May and the 7th of July (or either of them) were a bar to the subsequent complaint, and summons on
the 28th of October, 1873, and order thereon.
June 3. Hopwood, Q.C. (Forbes with him), for the appellant.
THE COURT (Lush and Archibald, JJ.) held that neither of The appellant was charged for that he being the occupier of the orders made previously to the order of the 28th of October certain enclosed ground called the Borough Park Ground, did 4
Taid annulled the contract, and that they were no bar to the subseknowingly and wilfully permit such place to be opened, and que kept, and used by other persons for the purpose of betting on a
Attorneys for appellant: Doyle & Edwards.
Attorneys for respondents: Rickards & Walker. certain pigeon-shooting match for money, contrary to 16 & 17 Vict. c. 119, s. 3.
On the 15th of November, 1873, a police constable went to the Borough Park Grounds occupied by the appellant; the public
MULLER v. BALDWIN.
June 5. were admitted on payment of money; the policeman saw a number of people there, and amongst others two book-makers
Port Dues on “ Coals exported.” with books in their hands. These two men were shouting out By the Tyne (Coal Dues Act 1872 (35 Vict. c, xiii.) the old "twenty to two on the match.” The match was a pigeon-shoot- coal dues were abolished, and the commissioners are empowered ing match for 101. a side between a person of the name of Par- to levy dues, inter alia, one penny per ton" on coals exported kinson and a person of the name of Wooler. He saw a man give from the port;" the commissioners having sought, under this to one of the men with a book a sovereign. The book-maker clause, to enforce payment of dues on coals taken out of the port then gave a ticket to the man, and said " That is on Wooler." in a steamer for her use on her voyage to New York, the plain
tiff paid under protest, and brought an action to recover the Breach, non-payment thereof.
Demurrer and joinder.
Warton, for the plaintiffs. THE COURT (Mellor, Lush, and Archibald, JJ.) gave judgment THE COURT (Lord Coleridge, C.J., Mellor and Brett, JJ.) gave or the defendant. In the absence of anything in the Act to the judgment for defendants. contrary, "exported from the port" must be taken to be used in Judgment for defendants. its ordinary meaning of "taken out of the port," and therefore Attorney for plaintiffs : H, Philipps. included coals taken out of the port in a steamer for her own use Attorney for defendants: Walter Webb. on a distant voyage.
Attorney for plaintiff: John Tucker.
thun a Year between Date of Order and of Arrest. Q.. B. SMIDT v. TIDEN.
An order of commitment under the Debtors Act, 1869, s. 3 Ship and Shirping - Charterparty-Implied Contract to pay I need not be executed within a year from its date. The proviFreight,
sions of the Common Law Procedure Act, 1852, s. 124, as to A charterparty was entered into on the 17th of June, 1872, writs of execution do not apply to it. between the plaintiff, as master of a ship lying at London, and Arbuthnot argued for the plaintiff, and R. B. L., a ship broker, to carry 407 tons of iron to G., at freight Pinder for the defendant. of 7s. 3d. per ton. Freight to be paid in London on signing bills | Attorneys: Robinson & Preston ; Garrard & James. of lading, the owner to have an absolute lien for freight. On the following day L. chartered the ship to defendant at 8s. per ton for the same amount of iron, with similar clauses as to payment Ex.
June 4. and lien, and the following clause at the end, "the brokerage of
MILL v. HAWKER AND OTHERS AND WICKETT. 5 per cent, is due on the execution of this charter to R. B. L., byl Trespass -Pe sinal Liability of Members of Highway Board whom the vessel is to be entered and cleared at the port of
Liability of Surviyor. loading." Though the defendant was thus led to believe that he was treating with L. as broker for the ship, L. had no
This was an action of trespass. Plea. Not guilty by statule authority in fact to act as broker for the plaintiff, or to receive
(5 & 6 Will. 4, c. 76). The plaintiff was the occupier of
some land at Roscastle, in Cornwall, across which a path ran, the freight; and neither plaintiff nor defendant knew of the charter entered into by the other.
alleged to be a public way. In November, 1872, the plain
tiff closed and locked two gates across the path. Thereupon The cargo having been taken on board, the master signed bills of lading making it deliverable to consignees or assigos,
"the defendants who (except the defendant Wickett) were men“they paying freight for the said goods as per charterparty.”
bers of the highway board for the district, held a meeting and The plaintiff did not demand the freight on signing the bills of
passed a resolution declaring the path to be a public way, and lading. The cargo was delivered at the port of discharge without
directing the defendant Wickett to remove the locks from tbe the lien being insisted upon; and in the meantime L. obtained
and gates. Wickett also received on the day after the meeting
written instructions in conformity with the resolution signed by the freight of 8s. per ton from the defendant, and afterwards stopped payment, leaving the 7s. 3d. per ton unpaid to the
the clerk and purporting to be “by order of the Board."
Wickett acting on the resolution and letter, removed the locks. plaintiff. The plaintiff having brought an action against defendant to
The plaintiff then brought this action jointly against all the recover the 7s. 3d, freight.
members of the board who had concurred in the resolution, and Cohen, Q.C. (Hollams with him), for the plaintiff.
against Wickett. R. G. Williams, Q.C. (Lanyon with him), for the defendant.
At the trial before Kelly, C.B., at the Cornwall Summer Assizes, THE COURT (Mellor, Lush, and Archibald, JJ.) gave judg.
1873, the trespass having been proved, it was objected by the ment for the defendant. The parties never were ad idem, conse
defendants that the action was misconceived, and that it should sequently there was no express contract; and no contract to pay
have been brought against the highway board in their corporate freight could be implied on the shipment under the circum
capacity. The learned judge was of that opinion, and nonsuited
the plaintiff. A rule to set aside the nonsuit was obtained in stances. Attorneys for plaintiff: Tollams, Son, & Coward,
Michaelmas Term, 1873, on the ground that the defendants who Attorney for defendant: 11. P. Sharp.
concurred in the resolution, and Wickett who obeyed it, were personally liable.
Jan. 30; Feb 7. Kingdon, Q.C., and Pinder (Lopes, Q.C., with C. P.
them), shewed cause.
June 1." MELHADO AND ANOTHER v. Porto ALEGRE, NEW HAMBURGH,
Arthur Charles (Cole, Q.C., with him), supported the rule.
June 4. THE COURT (Cleasby and Pigott, BB., Kelly, C.B. AND BRAZILIAN RAILWAY COMPANY,
dissenting) made the rule absolute. They held, lst, That the Joint Stock Company-lixpenses of Promotion-- Articles of Asso
defendants who concurred in the resolution were personally ciation - Ratification.
liable, inasmuch as the act done was wholly beyond the comDeclaration for that the defendants were a joint stock com- petency of the board under the 5 & 6 Will. 4, c. 50, to perform: pany under the Companies Acts, and it was provided by their and 2ndly, that Wickett the surveyor was also liable, as having articles of association that all expenses incurred in the establish- actually committed the trespass complained of, although he comment of the company not exceeding 20001., which the directors mitted it under the orders of the other defendants professing to should consider might be deemed and treated as preliminary act as the bighway board of the district. expenses, should be defrayed by the company.
Rule absolute. Averment that the plaintiffs were the promoters of the com- Attorneys for plaintiff: Puttison, Wigg, & Co., for White & pany, and bad incurred preliminary expenses exceeding 20001., | Dingley, Launceston. and that all conditions were fulfilled necessary to entitle them Attorneys for defendants: Coode, Kingdon, & Cotton, for to receive payment of 20001, from defendants.
TABLE OF CASES.
During the sittings of the Courts THE WEEKLY Notes will be published on Saturday, and will generally comprise Notes of the Decisions up to
and including those of the previous Wednesday. All cases of permanent Equity.
interest noted herein will be reported in full in The Law REPORTS.
PAGE Bush's CASE. In re IMPERIAL RUBBER COMPANY (Issue of Shares
-Registration of Contract—30 & 31 Vict. c. 131, 8. 25) L.JJ. 137 GREEN'S CASE. In re FREEHOLD INVESTMENT COMPANY (Company
- Contributory- Director - Qualification-Withdrawal from Office-Lapse of Time) . .
. . V.-0. B. 139 PAINE T. JONES (Will- General Devise-After-acquired real Es
tate-Tille of Tenant for Life by Adverse Possession-Es
toppel) . . . . . . . . V.-C. M. 138 RICHARDS v. WILLIAMSON (Trade-mark-Injunction-Acquisition L.JJ. In re IMPERIAL RUBBER COMPANY. June 10. of Plaintiff's Mark by Purchase of Goods in open Market)
V.-C. B. 139 Issue of Shares-- Registration of Contract-30 & 31 Vict. c. 131, STRONG 7. BIRD (Debt-Appointment of Debtor as Executor-In
S. 25. tention to forgive Debt-Incomplete Gift) . . M. R. 137
This was an appeal from an order of Vice-Chancellor Bacon, TEWART V. LAWSON (Will-Construction-Debts, &c., to be paid refusing to put Mr. Bush on the list of contributories to the comout of Rents and Profits- Tenant for Life or in Tail not to be
pany for unpaid shares, as noted ante, p. 112. entitled to Estates till clear of Debts-Perpetuity- Accumula
Swanston, Q.C., Grahum Hastings, and Ince, for the official tion-Possession) . . . . . . V.-C. H. 140 liquidator. WARNE v. ROUTLEDGE (Copyright-Married Woman-Contract
Kay, Q.C., and Romer, for Bush. Publication of New Edition of Book) . . . M. R. 138 THEIR LORDSHIPS held that under the circumstances the shares WILSON, Ex parte. In re FOREIGN AND COLONIAL GAS COMPANY could not be taken to have been issued until the certificates were
(Company – Shareholder - Unwritten Agreement to take issued, which was after the contract was registered. Mr. Bush fully paid-up Shares -- Registration of Shares as Ordinary was therefore not liable under the 25th section of the Companies Shares - Rectification-Companies Act, 1867, 8. 25) V.-C. B. 139 Act, 1867. The appeal must be dismissed with costs.
Solicitors: Harper, Broad, & Battcock ; Linklater & Co.
June 12. in Ship reaching Port at which Risk is to attach-Risk varied Debt- Appointment of Debtor as Excecutor-Intention to forgive by unreasonable Delay) . . . . . Q. B. 140
Debt-Incomplete Gift. Fox .. CLARKE (Conveyance of House-House now in Occupation
This was a suit instituted by one of the next of kin of Frances of P.- Ornamental Frontage extending across adjoining Bird, who died in December, 1870, having made a will containing House). . . . . . Ex. Ch. from Q. B. 141 ,
an appointment of the defendant as executor, but no disposition FOWLER v. LOCK (Master and Servant-Relation of Cab Proprietor of her residuary personal estate. The question, which now came
and Driver -Bailor and Bailee) . Ex. Ch. from C. P. 142 before the Court on an adjourned summons, was whether the HUTTON . BULLOCH (Undisclosed Foreign Principal -- Authority of defendant was to be charged with a debt of 9001. alleged to be
English Merchant when buying Goods on Account of Foreign due from him to the estate.
English and Foreign Firms) . . Ex. Ch. from Q. B. 141 defendant, and for several years previously to her death resided Nevill v. BRIDGER (Burial Fees—Right to charge for Selection of
with him and his wife. She had an annual income of 20001., and Site-Opening Vaults-Non-Parishioner) ; . . Ex. 142 paid to the defendant a sum of 2121. 10s, per quarter for her OGBEN v. BENAS AND ANOTHER (Cheque payable to Order-Forged
board and lodging. In 1866, the defendant borrowed of her Indorsement-Right of Indorsee) . . . . C. P. 142
a sum of 11001., and it was agreed that this loan should be paid
off by a deduction of 1001. from each quarter's payment for REG. V. EDMONDS (Union Assessment Committee Acts, 1862
board. Accordingly deductions of this amount were made from &1864 (25 & 26 Vict. c. 103, 8. 21; 27 & 28 Vict. c. 39, 8. 1) Re-deposit of Valuation Lists-Costs-Practice). ' Q. B. 141
the quarterly payments made by the testatrix in June and
October, 1866. At Christmas, 1866, according to the evidence of RHODES AND ANOTHER v AIREDALE DRAINAGE COMMISSIONERS the defendant and his wife,a conversation took place between them (Arbitration- Lands Clauses Consolidation Act-Compensa
and the testatrix, in the course of which the testatrix stated that she tion-Power to state Special Case-Reference by Consent
did not want to have any more of the money lent returned; and Common Law Procedure Act, 1854, 8. 5) . . C. P. 141
she thereupon drew and gave to the defendant & cheque for the RODOCONACHI V. ELLIOTT Marine Assurunce - Restraint of
full quarterly payment of 2121. 10s., and she continued down to Princes) . . . . . Es. Ch. from C. P. 142 the time of her death to pay to the defendant the like quarterly SWIFT ». JEWSBURY (P. O.) AND GODDARD (Costs of Unsuccessful sum. The evidence of the defendant and his wife was corrobo
Defendant-Certificate to deprive Defendant of Costs—3 & 4 rated by memoranda in the handwriting of the testatrix.
Wm. 4, c. 42, 8. 32-Statement of Case on Appeal) Q. B. 141 The chief clerk found by his certificate that the defendant TAYLOR AND OTHERS v. LIVERPOOL AND GREAT WESTERN STEAM remained liable for the debt, and thereupon the defendant took
COMPANY (Ship and Shipping-Bill of Lading-Exception of out a summons to vary the certificate, which now came on to * Thieves," " Barratry"_" Damage” to Goods which can be be heard.
insured against) . . . . . . .Q. B. 140 Southgate, Q.C., and G. Miller, for the defendant. WESTERN COUNTIES MANURE COMPANY v. LAWES MANURE COM
Chitty, Q.C., and Jolliffe, for the plaintiff, contended that the PANY (Disparaging Statement as to Plaintif's Goods-Special debt was not released at law, and that there were no circum
Damage-Malice-Intention to injure) . . . Ex. 142 stances which would induce a court of equity to treat the debt No. 21.-1874
as gone; and that on the facts there was merely an intention on use, and after her death to pay the said rents and profits to his the part of the testatrix to make a gift, which she had not carried niece Ann Hasler for her life for her separate use, and after her out, and which could not be carried into effect by the Court. death to convey the same freehold and copyhold estates to the Mackeson, Q.C., Mander, and A. Thomson, for other next of children of Ann Hasler as tenants in common in fee.
In September, 1824, certain freebold estate was conveyed to THE MASTER OF THE ROLLs held that the defendant could the testator to the ordinary uses to bar dower. not be charged with the debt for two reasons: first, because the In December, 1830, the testator died. Thomas Harrison disdebt was released at law by the appointment of the defendant as claimed the trusts of the will, and Charlotte Nicoll entered into executor, and it could not be enforced in equity in opposition to possession of all the testator's real estate, including that acquired the intention of the testatrix, the estate being solvent; and, by him subsequently to the date of the will. secondly, because the testatrix had actually carried out her in- Ann Hasler intermarried with William Paine, and had issue tention of making a gift to the defendant, by paying him for each seven children, of whom the plaintiff was one. of nine successive quarters & sum of 1001. in excess of what could In 1852 the children of Ann Paine instituted a suit of Paine have been legally claimed by him.
v. Nicoll against Charlotte Nicoll, praying for administration of Solicitors : Mason & Withall; Chapple & Welch; Farrar; c. the trusts of the testator's will, and for the appointment of new J. Mander.
trustees. Charlotte Nicoll put in an answer by which she admitted that the after-acquired real estate of the testator was
subject to the trusts of the will. After the filing of the answer M. R. WARNE v. ROUTLEDGE.
an arrangement was made for putting an end to the suit; and .. Copyright-Married Woman-Contract- Publication of New by an order dated the 4th of December, 1852, a new trustee of Edition of Book.
the will was appointed jointly with Charlotte Nicoll, and sbe This was a suit by a firm of publishers to restrain the pub- was ordered to convey all the real estate of the testator to the lication by Messrs. Routledge of a second edition of a work of use of herself and such new trustee upon the trusts of the will. wbich they claimed to have the exclusive right of publication
In the preparation of the conveyances necessary to carry this until the first edition was sold.
order into effect, it was for the first time discovered that the In 1873 the plaintiffs entered into a verbal agreement with after-acquired real estate of the testator did not pass by the a married woman, who was the authoress of a book entitled will, and Charlotte Nicoll upon being informed of this refused • How to Dress on 151. a year as a Lady' for the publication of to convey the same; and by an order dated the 26th of February, the work, and that the plaintiffs should bear all expenses and 1853, made on the petition of the plaintiffs in the suit, it was pay to the authoress a royalty of one penny for each copy sold. ordered that Charlotte Nicoll should convey only the property reckoning for this purpose thirteen copies as twelve. The plain- / which passed by the will. tiffs expended a considerable sum in advertising the book, which On the 3rd of August, 1853, Charlotte Nicoll, who claimed to had a large sale, and they paid the authoress 1001. on account of have acquired the fee simple of the after-acquired property by royalty.
adverse possession, conveyed the reversion then expectant on her Differences having arisen between the plaintiffs and the own life to one Jones in fee for valuable consideration. authoress, she arranged with Messrs. Routledge to bring out a
Charlotte Nicoll died in 1858. In 1860, Jones for valuable second edition of the work. revised before the whole of the consideration conveyed one moiety of the property to Johnston, first edition was sold off. The plaintiffs accordingly filed their
who had acted as solicitor for Charlotte Nicoll in the suit. bill against Messrs. Routledge, and the authoress and her
| Ann Paine (formerly Ann Hasler) died in 1868. husband as defendants, praving a declaration that the authoress In 1869, Jones and Johnston sold the property to a Miss Sandwas entitled to the copyright of the said book for her separate ford, and in the beginning of the following year she sold and use, and that she had entered into an implied contract with the conveyed the property to Thomas Salter, who died shortly afterplaintiffs that no other edition of the said book should be pub- wards, having devised it to Rebecca Salter and George Redding lished until the plaintiffs should have sold all the copies of the upon certain trusts. book to be published in accordance with the agreement, and that in 1871 this bill was filed, alleging that the property was sabthe separate copyright of the authoress in the book, or in the
ject to the trusts of the will of the testator, and that Jones, Johncopyright thereof, was bound by such implied contract.
ston, Sandford, and Salter, purchased with notice that such was E. Beaumont (Fry, Q.C., with him), for the plaintiffs.
the case; and praying that they or their representives might Daniel Jones, for Messrs. Routledge.
convey the property to the present trustee of the testator's will, Shortt and J. D, Bell, for the authoress and her husband. and might account for the mesne profits.
THE MASTER OF THE ROLLs considered that whatever contract. The cause now came on to be heard. the authoress as a married woman might have made, the actuall. W. Pearson, Q.C., and Warmington, for the plaintifi, contended contract in this case was not for any definite time, but was de- that Charlotte Nicoll was estopped from denying that the proterminable by either party at pleasure, and only amounted to / perty passed by the will of the testator. this, that while it existed no one else was to be at liberty to
Cotton, Q.C., and W. Barber, for Johnston and the representapublish the book; the Court could not import a new term into
| tives of Jopes. the contract, and the bill must be dismissed with costs.
Glasse, Q.C., and Graham Hastings, for the representatives of Solicitors : Beaumont & Son; Allen & Son.
Stirling, for Miss Sandford.
E. B. Cooper, for the trustee of William Nicoll's will.
THE VICE-CHANCELLOR held that although it had been deWill-General Devise-After-acquired real Estate—Title of
cided that where a testator purported to devise a specific pro
perty to a tenant for life with remainder over, the tenant for life Tenant for Life by Adverse Possession- Estoppel.
could not acquire a title by adverse possession against the reWilliam Nicoll by his will, dated the 12th of April, 1824, de- maindermen claiming under the same instrument, that doctrine vised all his freehold and copyhold estates and also all other did not apply to the present case, where the will had no effect his estate and effects whatsoever and wheresoever, and of what whatever on the after-acquired property, and that Charlotte nature and kind soevor, of which he might be possessed at the Nicoll was not bound by the admissions in her answer, which time of his decease, to his wife Charlotte Nicoll and Thomas were made in ignorance of her rights, and he dismissed the bill. Harrison, their heirs and assigns, upon trust to pay the rents Solicitors: A. G. Ditton; Johnston & Jackson ; Gamlen & Son; and profits to Charlotte Nicoll during her life for her separate Nickinson, Prall, & Nickinson ; Tayler & Baxter.