the 29th of March, 1873, Wilson left England, and remained | of the estate, which was their security, meant to provide for abroad until the 27th of February, 1874.

Kay, Q.C., and Methold, in support of the motion, were stopped by the Court.

Eddis, Q.C., and Daniel Jones, for the company: Under the 25th section of the Companies Act, 1867, all shares are to be held subject to the payment of the whole amount in cash, unless the same shall have been otherwise determined by a contract duly made "in writing." The company has no security for the 20007. advanced by them to Wilson except his liability on these shares. He fails to fulfil his agreement, and goes abroad for nearly a twelvemonth. Either Wilson should hand over the concessions, or the contract should be rectified.

them an additional one by the accumulations; and at the same time to make sure of the corpus of the property for the benefit of those entitled to it. The result, therefore, was that the accumulations must be continued till the corpus was fully recouped, | and that until then the plaintiff could not be let into possession. THE VICE-CHANCELLOR held that to accede to the defendants' argument would be to create a trust which the testator himself had not created by his will; even if to create such a trust were an act which the law would allow. It was true the estate was now disencumbered and cleared of debt, and, though not in the precise way which the testator contemplated, in a way which it must be assumed he could not have been ignorant might occur. THE VICE-CHANCELLOR said he could not hesitate a moment To refuse the order asked for, and on the grounds suggested, as to his decision. Mr. Wilson ought not to be exposed to the would be in reality to say that persons might by way of acculiability of having these shares registered in his name as unpaid-mulations beyond the prescribed period create an estate in up. Mr. Wilson had been charged with committing a fraud, but perpetuity which the law did not permit. The result was that in fact, he had been cheated into a responsibility for which he the receiver must be discharged and the plaintiff let into the never bargained. The 25th section of the Companies Act, 1867, possession of the estates. was quite inapplicable. If the company had any claim against Mr. Wilson, they should establish it in the regular way.

The motion must be allowed; and the company must pay the costs.

Solicitors: Bevan & Whitting; Allen & Edwards.

Solicitors: Gray & Mounsey; Markby, Tarry, & Stewart.

Common Law.

V.-C. H.

Q. B.

June 5.

TAYLOR AND OTHERS v. LIVERPOOL AND GREAT WESTERN
STEAM COMPANY.

Ship and Shipping-Bill of Lading-Exception of "Thieves,"
Barratry"-" Damage" to Goods which can be insured against.
The plaintiffs shipped at Liverpool on board defendants' ship
for New York, five boxes of diamonds under bills of lading, by
which were excepted, inter alia, Pirates, robbers, thieves,
"The ship-
vermin, barratry of master and mariners."
owner is not to be liable for any damage to any goods which is
capable of being covered by insurance."

TEWART V. LAWSON. June 12. Will-Construction-Debts, &c., to be paid out of Rents and Profits -Tenant for Life or in Tail not to be entitled to Estates till clear of Debts-Perpetuity-Accumulation-Possession. John Tewart, who died more than twenty-one years ago, by his will declared that his trustees should out of the rents and profits of his real estates pay his funeral expenses and all his debts, mortgage, bond, or otherwise, including a sum of 80001 charged on a portion of his real estate; that they should apply the rents and profits from time to time in liquidation of the debts until the whole of them, including the 8000, were fully paid; that no person to whom any estate for life or in tail was given by the will should be entitled to the rents and profits of the estates, or any part of them, until they were totally disencumbered and clear of debt; and that the trustees should invest the moneys to come to their hands under the trusts of the will, as therein mentioned, until the same should be applied by them in any payment to be made under the will. The whole of the testator's debts had been paid, with the exception of the 8000. The debts had been paid by a sale of portions of the estates under the direction of the Court, and there was an accumulation of stock in existence more than sufficient to pay the 80001. A receiver of the estates had been appointed; and the cause now came on upon a summons taken out by the plain-of tiff, John Edward Tewart, the tenant for life under the will, to discharge the receiver, and to be let into the possession of the

estates.

Joshua Williams, Q.C., and Ferrers, for the plaintiff, contended that the trust to accumulate the rents and profits was, so far as it was sought to recoup the corpus of the estate, something more than a mere provision for the payment of debts. It tied up the beneficial interest in the property for more than twentyone years after the testator's death, the proper period; it was an attempt to create a "perpetuity," and, therefore, void; and, as all the debts were now paid or provided for, the estate was clear and unencumbered; the receiver ought to be discharged and the tenant for life let into possession.

Dickinson, Q.C., and Peto, for the defendants, who were in

terested in the corpus of the estate, insisted that it must be recouped the amount which it had contributed to the payment of the debts before the plaintiff could take any of the rents or profits. The trust for the payment of the debts was, ab initio, good, and the accumulations for that purpose did not invalidate it. The testator, while he knew his creditors might force a sale

One of the four boxes was lost; and an action having been brought for the loss, the defendants sought to bring the loss within the exceptions in the bill of lading. It appeared that the box was stolen during the voyage or on the ship's arrival in port, before the time for delivery, but there was no evidence to shew whether it was stolen by one of the crew or by a passenger, or, after her arrival, by some person from the shore. Cohen, Q.C. (Hollams with him), for plaintiffs.

Herschell, Q.C. (R. V. Williams with him), for defendants. "thieves" in the bill of lading must be interpreted as in a policy THE COURT (Lush and Archibald, JJ.) held, 1st, that insurance, and only applied to thieves external to the ship; and assuming theft by one of the crew to be "barratry" (as to which they expressed no opinion) 2nd, it lay on the defendants to bring the loss specifically within one of the exceptions by shewing by whom, whether stranger, crew, or passenger, the theft had been committed; 3rd, that "damage to any goods" in the clause as to insurance would include damage amounting to a total destruction of the goods, but did not apply to the case of the abstraction of the goods. The Court therefore gave judgment for the plaintiffs. Attorneys for plaintiffs: Hollams, Son, & Coward. Attorneys for defendants: Gregory, Rowcliffes, & Rawle.

Attorneys for defendants: Chester, Urquhart, & Co., for Burial Fees-Right to charge for Selection of Site-Opening Vaults Frodshom & Nicholson, Liverpool.

G. R. Barry, deceased, and held by the respondent, had been allowed priority over other securities given by the same party in favour of the bank. The case depended chiefly on the facts, but also related to the effect of the Registration Acts in Ireland.

Mr. Fry, Q.C., Mr. Fitzgibbon, Q.C. (of the Irish Bar), and Mr. Westlake, Q.C., were for the appellants.

Mr. Isaac Butt, Q.C., Mr. O'Hagan, Q.C., and Mr. Ronayne (all of the Irish Bar), were for the respondent.

THE LORDS affirmed the decision of the Court below, and dismissed the appeal with costs.

Solicitors for the appellant: Ashurst, Morris, & Co.
Solicitors for the respondent: Holmes, Anton, Greig, & White.

Equity.

June 22.

Axman v. Lund (Injunction—Letters Patent—Issuing Circulars—
Invalidity of Patent)

145

146

V.-C. B.
HEWISON V. KENMIR (Practice-Costs-Motion to dismiss for want
of Prosecution-Delivery of Brief)
M. R.
LAUTOUR v. ATTORNEY-GENERAL (Practice-Affidavit filed before
Replication-Notice)
V.-C. H.

V.-C. M. 145
CLERGY ORPHAN CORPORATION, In re (Investment-Cash under
the Control of the Court-Power to vary Investment) V.-C. M.
Cox v. BENNETT (Practice-Contempt)

MUMFORD v. STOHWASSER (Conflicting Equities-Priority of Time
-Legal Estate-Notice)
M. R.
PENYSTON, Ex parte. In re PARTRIDGE (Bankruptcy—Jurisdic-
tion-Suspension of Proceedings under Bankruptcy Act, 1861,
8. 110-Injunction restraining Chancery Suit)

145

146

145

L. JJ. 144

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 interest noted herein will be reported in full in THE LAW REPORTS.

This was an appeal against a decree of Lord Chancellor Hatherley, which had reversed a previous decision of Vice-Chancellor Malins. The question in the case depended on evidence, and related to the performance of an agreement as to a lease of land, one party contending that the quantity of land exceeded what the other insisted on as being the proper limits of the land to be leased. The property in question was the subject of a private Act of Parliament, and one contention of the respondents was, that that Act prevented them from granting a lease of the kind claimed by the appellant.

Mr. Glasse, Q.C., and Mr. Locock Webb, for the appellant.
Mr. Cotton, Q.C., and Mr. W. H. Townsend, and Mr. J. Pear-
son, Q.C., and Mr. George Sumner, for the various respondents.
THE LORDS (LORD CHELMSFORD, LORD O'HAGAN, and LORD
SELBORNE) affirmed the decree of Lord Hatherley.
Solicitor for the appellant: C. W. Dommett.
Solicitors for the respondent: Townsend, Lee, & Houseman

AGRA BANK v. BARRY.
Irish Registration Acts.

BRIDGES V. NORTH LONDON RAILWAY COMPANY.
Railway-Negligence-Invitation to alight.

chequer Chamber, which had affirmed a previous decision of the
This was an appeal against a decision of the Court of Ex-
Court of Queen's Bench.

The action was brought by the widow and executrix of a gentleman who had been killed on the railway. He resided at Highbury, and was a season-ticket holder between Highbury and London. His death occurred on the 9th of January, 1869. He left the Broad Street Station on that day to go home. The Highbury Station is approached from Broad Street by a tunnel. The platform towards the southern or London end was at that time on a descent, and there was a quantity of hard rubbish lying by the side of the road and at the end of this descent. The train stopped before the whole of it reached the platform, and the carriage in which the deceased sat (the last of the train) was within the tunnel when it stopped. The servants of the company called "Highbury," and many of the passengers alighted. Among them was the deceased. There was afterwards a call of " "Keep your seats," and the whole train then moved up to the platform. There was a light at the northern end of the tunnel adjoining the platform, but it did not appear that this light was of use in the tunnel itself. The deceased in getting out must have fallen over or upon the rubbish, and he suffered such severe injury that he died very shortly afterwards. His widow brought an action against the company, and the cause came on for trial before Mr. Justice Blackburn, when evidence of the above facts was given, and a passenger in the last carriage but one was called as a witness, and said that on hearing the word "Highbury" he too alighted, and after he had done so heard the words "Keep your seats." He then heard groans in the tunnel, went back and found the deceased. Mr. Justice Blackburn held that the circumstances did not shew any negligence on the part of the company's servants, and directed a nonsuit, but, in order to save the expense of a second trial, should the Court above think that the case ought to have been left to damages. The jury assessed the damages at 12007. A rule to the jury, he took the opinion of the jury on the amount of set aside the nonsuit and to enter the verdict for the plaintiff with these damages was obtained and discharged, and on appeal to the Exchequer Chamber the decision was affirmed by four to three of the judges then composing that Court. This appeal was then brought.

Justices KEATING, BRETT, and DENMAN, and Barons MARTIN_and
The judges were summoned, and Lord Chief Baron KELLY,

POLLOCK attended. The lords who heard the case were LORD
CAIRNS, LORD COLONSAY, and LORD HATHERLEY.

Mr. Henry James, Q.C., Mr. Kemp, and Mr. Snagge, appeared for the appellant, and

Sir J. Karslake, Q.C., Mr. Aspinall, Q. C., and Mr. A. G. Shiell, June 15. for the company.

This was an appeal against a decision of the Court of Appeal in Ireland, by the effect of which certain securities given by No. 22.-1874.

The opinions of the consulted judges were delivered on the 15th of May last. They were all of opinion that there was evidence of negligence to go to the jury. The case then stood over for judgment.

L. JJ.

Equity.

Ex parte PENYSTON.

In re PARTRIDGE.

May 29.

THE LORD CHANCELLOR (who, as Lord Cairns, had presided in July, 1873, at the hearing of the appeal) moved the judgment of the House, referring particularly to the evidence of the witness who had alighted on hearing the word "Highbury" and afterwards heard the words "Keep your seats;" he said that without laying down as a rule of law that the shouting out of the name of a station was an invitation to the passengers to alight, there could be no doubt that in this case, the train having come to a stand still, it had been so taken, and that the conduct Bankruptcy-Jurisdiction-Suspension of Proceedings under Bankruptcy Act, 1861, s. 110-Injunction restraining Chancery Suit. This was an appeal from a decision of Mr. Registrar Pepys, sitting as chief judge in bankruptcy, which involved a question respecting proceedings commenced under the Bankruptcy Act, 1861.

of the company's servants in afterwards calling out “Keep your seats" shewed that it had been improvidently uttered, and therefore furnished evidence fit to be considered by the jury on the question of negligence. He moved to reverse the decision of the Exchequer Chamber, and to direct that the verdict should be entered for the plaintiff in the action for the sum assessed by the jury as damages.

LORD HATHERLEY entirely concurred.
Judgment of the Exchequer Chamber reversed, and verdict
ordered to be entered for the plaintiff in the action with the
damages (12007.) assessed by the jury.

Solicitor for appellant: J. Fluker.
Solicitor for respondent: J. Blenkinsop.

SAXBY AND ANOTHER v. CLUNES AND ANOTHER.

Patent.

This was an appeal in error under the Common Law Procedure Act, against a judgment of the Court of Exchequer Chamber, which had reversed a previous judgment of the Court of Exchequer.

Mr. F. R. Partridge for some time carried on the profession of a solicitor in partnership with Messrs. C. Goodwin, H. Edwards, and J. C. Williams. On the death of Goodwin the partnership was dissolved, and Partridge carried on business with Edwards alone. In 1861 it was discovered that Williams, while he was in the firm, had contracted considerable debts unknown to his partners, for which they were liable; and eventually, on the 14th of October, 1861, Partridge & Edwards were adjudicated bankrupts, and creditors' assignees were appointed of their joint and separate estates. On the 20th of January, 1862, the bankrupts June 22. obtained their discharge. On the 8th of July, 1862, one of the assignees resigned his office, and a meeting of the creditors was held at which it was resolved by three-fourths of the creditors, under the 110th section of the Bankruptcy Act, 1861, that the proceedings in bankruptcy should be suspended, and that the joint and separate estates of the bankrupts should be wound up and administered by the two remaining assignees, as trustees, out of bankruptcy, in 'like manner, as far as the difference in Messrs. Saxby & Farmer were the holders of a patent for "a circumstances would admit, as the same would have been carried mode of working simultaneously the points and signals of rail-out and administered in bankruptcy if the bankruptcy not been ways at junctions to prevent accidents," and they brought an suspended. action against Clunes and two other persons (one of whom has since died) for an infringement of their patent. It was contended at the trial, which took place before the Lord Chief Baron in June, 1869, that the principle of the plaintiffs' patent was that the point and signal must move together, whereas the principle of the defendants' patent was that the point and signal could not move together, and therefore, though a like result was produced so far as the safety of the travelling was concerned, the means were so different that one patent could not be an infringement of the other. A verdict was taken for the plaintiffs, subject to a motion in the Court for a nonsuit or a new trial. A rule was accordingly obtained and argued, and in January, 1870, the rule was discharged, Mr. Baron Cleasby dissentiente. The judgment was afterwards reversed by three to two judges in the Court of Exchequer Chamber, and this appeal was then brought. The case was argued in this House in July, 1873, before Lord Chief Baron KELLY, Justices KEATING, BRETT, and DENMAN, and Barons MARTIN and POLLOCK.

THE LORDS present were LORD CAIRNS (in the chair), LORD COLONSAY, and LORD HATHERLEY.

Mr. Holker, Q.C., Mr. T. Aston, Q.C., and Mr. Edmund Macrory, were for the plaintiffs in error, and

Sir J. D. Coleridge, A.-G., Mr. T. Webster, Q.C., and Mr. Henry O'H. Moore, for the defendants in error.

On the 15th of May last, Mr. Justice Brett read an opinion written by Mr. Baron Martin, in which also Justices Keating and Denman and Mr. Baron Pollock concurred, to the effect, that there had been no infringement by the defendants of the plaintiffs' patent. The Lord Chief Baron's opinion was that there had been an infringement.

Under this resolution the two trustees fully administered the joint estate, and received considerable sums belonging to the separate estate of Partridge, but difficulties having arisen in the administration of the separate estate, Penyston and another person, who had been admitted creditors of the separate estate, filed a bill against the trustees on behalf of themselves and all other separate creditors of Partridge, praying that his separate estate might be administered in Chancery. On the 21st of March, 1874, a decree for accounts was made in the suit. On the 17th of April, two ladies named Ingle, who were also separate creditors of Partridge, applied to the registrar for an injunction to restrain the proceedings in Chancery, and the registrar granted the injunction.

From this order the plaintiffs in the suit appealed.

De Gex, Q.C., and Cracknall, for the appellants, contended that as no proceedings were pending in bankruptcy at the time when the Bankruptcy Act, 1869, was passed, the matter was now entirely removed from the jurisdiction of the Court of Bankruptcy.

Little, Q.C., and Finlay Knight, for the Misses Ingle, argued that the proceedings were only suspended by the resolution of the creditors, and that the Court had still power under the 136th section of the Bankruptcy Act, 1861, to decide all questions with respect to the estate, and therefore that the chancery proceedings ought to be stayed.

Roxburgh, Q.C., and Bagley, for the trustees.

THE LORD JUSTICE JAMES said that he was of opinion that the registrar was right in granting the injunction. There was no difference in principle between an arrangement under the 110th section of the Act of 1861 for winding up the estate by trustees, and a creditors' deed under the 192nd section. The Court of Bankruptcy was empowered by the 136th section to determine questions arising between creditors and the assignees or trustees of the estate, and that section had been held to apply to questions arising out of arrangements under the 110th section. Attorneys for defendants in error: Palmer, Eland, & Nettleship. He was of opinion that the Court had still the power to deter

THE LORDS were of opinion that the judgment of the Court of Exchequer Chamber must be affirmed, for that though the object of the two patents was the same, the means of effecting that object were different.

Attorney for the plaintiffs in error: G. Faithfull.