M. R. OWEN v. DAVIES. July 24. Riparian Proprietor-Stream-Diversion of Water—Board of Health-Acquiescence-Injunction. This was a suit to restrain the Barmouth Local Board of Health from obstructing a brook flowing through the plaintiff's land. The ordinary flow of water in the brook was stated to be 77,000 gallons of water a day, but in summer it was sometimes dry. The board of health, who had purchased a piece of land adjoining the brook for the purpose of obtaining the water, constructed a five-inch pipe capable of conveying 67,000 gallons a day to their reservoir, and thereby diverted about seven-eighths of the water. The plaintiff who was the owner of a mill, now disused, and of two cottages adjoining the stream, filed his bill to restrain the acts of the board, on the ground that his rights as a riparian owner were thereby injured. The defendants contended that the plaintiff was aware of the progress of the works, and must be taken to have acquiesced. Chitty, Q.C., and W. W. Cooper, for the plaintiff. Southgate, Q.C., and Stevens, for the defendants. THE MASTER OF THE ROLLS held that the defence of acquies: cence failed; that the plaintiff as a riparian owner had a right to the natural flow of water through his lands, and to use it for all necessary purposes; that, according to the decision in Wilts and Berks Canal Navigation Co. v. Swindon Waterworks Co. Order of the 23rd of December, 1872, which directs that notice of any applications under the Copyhold Acts respecting any money in Court is not to be given to the Copyhold Commissioners, except when the judge may so direct. His Honour said that as the commissioners had been served, they might in this instance have their costs of appearing, but it must be understood that in future they could not be allowed. Solicitors: Rashleigh & Smart; White, Borrett, & Co. V.-C. M. TICKNER v. OLD. July 22. Government S'ock-Long Annuities—Varying Investment— Perishing Securities-Enjoyment in Specie. gave to his wife and two other persons all his residuary property J. B. Hewitson, by his will, dated the 17th of February, 1842, upon trust to sell and convert and invest upon Government or real securities in England or Wales, and to pay the income to his wife for her life, and afterwards to dispose of the property as in the will mentioned. invested any of his Government stocks, and that his wife should The testator also provided that his trustees might continue be entitled to the interest, dividends, and annual proceeds of his residuary estate from the day of his decease. Part of the testator's estate consisted of 100%. per annum Con solidated Long Annuities, for eighty years from the 5th of January, 1780. After the testator's death this fund was allowed to remain un (Law Rep. 9 Ch. 451), the board of health had only the ordinary rights of a riparian owner, and could not divert the water to their reservoir; that the case was not one in which damages could be assessed, and that an injunction must be granted to restrain the defendants from obstructing or diverting the water so as injuriously to affect the supply of water through the plain-appointed the defendant Old, who was the surviving trustee of tiff's land. Solicitors: Edward Balden; Venning, Robins, & Venning. M. R. WELLS v. WELLS. July 24. Will-Gift to "my Nephews and Nieces"-Niece by affinity. Testator after making a specific bequest "to my niece Ann Burman," bequeathed after the death of her sister" to the whole of my nephews and nieces who shall be living at her decease" the sum of 6001. There were eleven nephews and nieces of the testatrix, but Ann Burman was a niece of the husband of the testatrix. The question was whether she was entitled to a share in the 6007. Speed, for the executors. Giffard, for Ann Burman. Henderson, for the other nephews and nieces. THE MASTER OF THE ROLLS held that the gift was confined to those who were nephews and nieces of the testatrix in the primary sense, and did not include the niece by affinity. Solicitors: Taylor, Hoare, Taylor, & Cooke, agents for R. C. Heath, Warwick. M. R. TEMPLER v. SWETE. July 25. Practice-Application under Copyhold Acts-Service on Copyhold Commissioners-Costs of appearing-Gen. Order of the 23rd f December, 1872. This was a petition under the Copyhold Acts for the investment in consols of a sum of money payable out of the proceeds of the sale of copy holds belonging to persons under disability. The petition had been served on the Copyhold Coumissioners. R. W. E. Forster, for the petitioners. Borrett, for the Copyhold Commissioners, asked for their costs. THE MASTER OF THE ROLLS referred to rule 8 of the General converted, and the income was received by the widow till the annuities expired. She died on the 13th of March, 1872, having her husband's will, one of her executors. The bill was filed by a beneficiary for the administration of her estate, and on the part of Old the point was raised that the husband's executors ought to have sold the long annuities and invested the proceeds on a permanent investment, and that the fund which would have been produced by the sale ought now to be provided out of her estate. Bristowe, Q.C., and W. R. Ellis, for the plaintiff. Morgan, Q.C., Walker, and Bush, for parties in the same interest. W. Pearson, Q. C., and Simmonds, for the trustee Old. THE VICE-CHANCELLOR held that the widow was not entitled to receive the long annuities, and that they ought to have been converted and the proceeds invested in permanent securities. Solicitors: Henry Hill; Symes, Sandilands, & Humphry ; Brooks & Co. V.-C. M. John Carson (who died in 1836) by his will, dated the 21st of March, 1835, gave his residuary estate to trustees on trust for his daughter, Agnes Turner, for life, and after her death for her children as she should appoint, and in default of appointment equally. The plaintiff, who was one of the four children of Agnes Turner, on the 1st of January, 1851, married a Mr. De Serre, a Frenchman domiciled in France. No settlement or agreement for settlement was made on their marriage, and he died on the 3rd of May, 1857. The only child of the marriage was Georgina A. V. R. Do Serre, who was born on the 26th of September, 1854. Agnes Turner, by deed dated the 18th of March, 1870, appointed 65001, to the plaintiff for her separate use, and died on the 11th of April, 1871. The suit was instituted to compel the present trustees of John Carson's will to raise and pay to the plaintiff the appointed fund. According to the French Civil Code whatever property de- | invitation on the part of the managers of the undertaking to the volves upon a husband or wife before or during the marriage is subject to the law of community of goods, unless in the case of a gift the donor expresses a contrary intention. If the law applied Miss De Serre was entitled to half the fund as representing her father. On behalf of the plaintiff it was contended that she only became entitled to the fund by the appointment, and consequently after the termination of the marriage, and further that the restriction to her separate use was an expression of intention to the contrary by the appointor. On behalf of Miss De Serre, it was contended that the plaintiff took an interest in the fund from the death of John Carson, and that the appointment did not operate to divest that interest, and the appointed fund was subject to the law of community of goods. Glasse, Q.C., and Macnaghten, for the plaintiff. THE VICE-CHANCELLOR held that the plaintiff originally took On the 9th of December last an order was made for windingup this unregistered association (Weekly Notes, 1873, p. 224). Charles Moore and Romaine De la Torre were the promoters of the undertaking, which was one for the purchase of the Victoria Theatre, Surrey, and the conversion of it into a theatrical music hall. In or about August, 1871, a circular was issued by Moore and De la Torre, signed "Moore & Co." the name of their firm, headed "Private and Confidential-Royal Victoria Palace," in which the following statements occurred :"The great success which has attended the Alhambra Palace as a place of entertainment has induced a few friends to enter into arrangements to provide the Surrey side of London with a similar establishment. . . . The entire remodelling, redecorating, and furnishing on a magnificent scale will cost 12.0007., and of this 5000l. only remains for subscription." Annexed was a form of receipt as follows:-" London, 1871. Received from the sum of pounds, being one-half of my subscription towards the sum of 12,000. for the purchase, alteration, redecorating, and refurnishing the above theatre, in accordance with the statements contained in our circular of the the of day of the balance to be paid by me on or before day of 1871." In the course of the winding-up the chief clerk, at the instance of some of the contributories, directed the official liquidator to bring in a supplemental list, treating Moore & De la Torre as contributories for 6550l., the difference between the sum of the amounts subscribed by other members and the full amount of 12,000l., on the ground that the above statement in the circular was a valid contract by Messrs. Moore & De la Torre to provide the unsubscribed-for balance of the capital of the undertaking. This was resisted, and the matter was adjourned into Court. Jackson, Q.C., and Solomon, for Moore & De la Torre. Eddis, Q.C., and T. A. Roberts, for the other members. Kay, Q.C., and Methold, for the official liquidator. Jackson, in reply. THE VICE-CHANCELLOR said that the circular was a very plain persons to whom the circular was sent to come in and join a partnership with a capital of 12,000l., of which 70001. had been already collected. Promoters who made such a statement as this were bound to make the statement good. Supposing the concern had been successful, could the right of these promoters to have shared in profits in the ratio of six to five, or thereabouts, have been disputed? They must contribute to the losses in a like proportion. From the statement that 12,000, was the capital of the partnership, there had been no departure. Some one must stand on the list of contributories to represent this sum, and no one could be placed on the list to represent the unsubscribed balance but Messrs. Moore & De la Torre, who had made the statement. With this statement of the opinion of the Court, the matter would be referred back to chambers, and the costs of all parties would come out of the fund. Solicitors: J. I. Solomon; Knox & Mould; Bolton & Co. Proof by Partner-Executor of deceased Partner-Proof for This was an appeal from a decision of the judge of the Peter Dixon and four other persons carried on business in partnership under articles which provided that on the death of a partner his share should be taken by the surviving partners at its value according to the stocktaking preceding his death, and that the amount due to him should be paid by the surviving partners to his executors or administrators by fourteen annual instalments, with interest until payment, the payment being secured by the joint and several bond of the surviving partners. Peter Dixon died in April, 1866, and in 1868 another of the Marten, Q.C., and Colt, for the executors. THE CHIEF JUDGE held that this sum was a mere debt from This was an appeal from a decision of the judge of the Sheffield County Court. The registrar of the Court had refused to register the resolutions in favour of liquidation passed at the first meeting of the creditors of George Hirst, on the ground that the notice summoning the meeting was not duly signed. It purported to be signed by the debtor's attorney, but his name was in fact signed by his clerk by his direction. The registrar thought this insufficient, and refused to register the resolutions. The judge affirmed this decision. The debtor appealed. Finlay Knight, for the debtor. Bagley, contrà. THE CHIEF JUDGE held that there was a sufficient signature. 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. House of Lords. July 24. Equity. 178 ATKINSON v. LITTLEWOOD (Election—Annuity settled by Deed- M. R. 180 DUNNE v. ENGLISH (Practice – Payment into Court—Motion_after covered or preserved-23 & 24 Vict. c. 127, s. 28) L. JJ. HARPER, Ex parte (Arbitration-Submission by Consent-Common Law Procedure Art, 1854 (17 & 18 Vict. c. 125), s. 17— Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), s. 25) M. R. HOLTHAUSEN, Ex parte. In re SCHEIBLER (Conflict of LawDeposit of Deeds in England with a German Creditor-Liability of Trustee in Liquidation to carry out the Contract) 179 179 179 L. JJ. 178 181 MERCHANT BANKING COMPANY v. MAUD (Repayment of Money paid in under an Order of Court-Interest) V.-C. B. MILES'S CLAIM. In re ADANSONIA FIBRE COMPANY (Windingup-Company consisting of Four Firms—Authority to accept Bills) MORTON'S ESTATES, In re (Payment to Married Women-Examination in Court-Separate Receipt) V.-C. M. 181 L. JJ. 179 181 NALTY v. AYLETT. In re THOMPSON'S ESTATE (Order upon a Soli- O'MAHONY AND OTHERS v. BURDETT. Will-" Die unmarried or without Children." This was an appeal against a decree of the Court of Chancery in Ireland. Mrs. Brooke of Cheltenham, in September, 1810, made her will, in which was contained the following bequest: "I bequeath to my sister Grace L'Estrange, the widow of Colonel L'Estrange of Moystown, the sum of 10007. in the Three and a Half per Cent. Irish Stock, for her life, and after her death to her daughter Grace L'Estrange. If my niece should die unmarried or without children, the 10007. I here will to revert to my nephew Colonel Henry L'Estrange of Moystown." Grace L'Estrange, the niece, survived the testatrix and her own mother, married Mahoney, but died in 1871 without children. The question was whether, under these circumstances, she took an absolute interest in the 10007., or only an interest for life. In May, 1858, a cause petition was filed in the Court of Chancery in Ireland, and the Master of the Rolls decided that the fund went to Grace L'Estrange (Mrs. Mahoney) absolutely. This decision was reversed in the Court of Appeal, by which it was declared that upon the true construction of the will of Mrs. Brooke the bequest of 1000l. was defeasible in the event of Mrs. Mahoney dying unmarried or without children. This appeal was then brought. for the appellants. Mr. Serjeant Sherlock (of the Irish Bar), and Mr Stiffe Everitt, Mr. G. A. C. May, Q.C. (of the Irish Bar), and Mr. Vaughan Hawkins, for the respondent. THE LORD CHANCELLOR (LORD CAIRNS), LORD Hatherley, and LORD SELBORNE were of opinion that the decree of the Court below must be affirmed, and the appeal dismissed with costs. Solicitors for the appellants: P. Coll, Dublin; T. Johnston. Solicitors for the respondent: Mude & Colles, Dublin; II. Shoulridge. July 24. WILLIAM FORSTER CHARTER v. CHARLES CHARTER. Forster Charter of Woodburn Hill, Northumberland, farmer, executed in 1859 a will, which contained this sentence, "I hereby nominate and appoint my son Forster Charter as the executor of this my will." The testator died in 1869. He had at the time of making the will two grown-up sons, William Forster Charter and Charles Charter, and a daughter named Barbara Charter. Probate was in the first instance granted to the elder son, William Forster Charter, but this grant was afterwards_disputed. On the hearing of the cause in the Probate Court, Lord Penzance admitted evidence as to the state of the family, and also evidence of the verbal declarations of the testator before and after the date of the will, and on the ground that the use of the words, "Forster Charter" in the will, was a mistake of the writer of the will (the clergyman of the parish), revoked the probate and granted probate to Charles Charter (Law Rep. 2 Prob. & D. 215). This was the decision appealed against. Mr. Manisty, Q.C., and Mr. Bauford, appeared for William Forster Charter. L. JJ. Ex parte BAUM. In re EDWARDS. July 31. Dr. Tristram and Mr. Pritchard, were for Charles Charter. LORD CHELMSFORD and LORD HATHERLEY thought the course taken in the Court below was erroneous, and that the order there Bankruptcy-Composition-Injunction to restrain Action by Cremade ought to be reversed. Robert Heathcote by his will, made in 1811, gave his residuary estate to his wife for life, and after her death or second marriage one-half of the income to each of his two daughters, Mary Ann and Maria, and to the children of each, if no child of one the principal to go to the other and her children, and if neither should have a child then to his two sons, and if either of them should die without issue, to the other, in case both should die without issue, then for Mary Heathcote (a grandchild), and in case she should die without issue living at the time of her death, then for such one or more of the daughters of Philip Deare and George Russell Deare as should be living at the time when the trusts thereinbefore declared should end, equally to be divided between them. The testator's daughters survived the widow, and died childless. The sons had died without issue during the life of Mary Anne, the surviving daughter, who became tenant for life of the whole fund. She died in June, 1866, and Mary Heathcote, who married a Mr. Southen, became entitled. She died on the 8th of April, 1872, without issue, and the daughter of Philip Deare survived her one day, and died on the 9th of April, 1872. Their respective representatives claimed the fund. Vice-Chancellor Malins decided in favour of the representatives of the daughter of Philip Deare, but his decision was, on appeal to the Lords Justices, reversed. (Nom. In re Heathcote's Trusts, Law Rep. 9 Ch. Ap. 45). This appeal was then brought. Mr. J. Pearson, Q.C., and Mr. A. P. Whately, for the appellants. Mr. Cotton, Q.C., and Mr. Hubert Lewis, for the respondent. THE LORDS were of opinion that the decision of the Lords Justices must be reversed and the case remitted to the Court of Chancery with a declaration that the gift over on the death of Mary Southen without issue took effect. Solicitors for the appellants: Birch, Ingram, Harrison, & Co. Solicitor for the respondent: W. J. Mitton. ditor-Debt not provable in Bankruptcy-Counts in Contract joined with Counts in Tort. This was an appeal from a decision of Mr. Registrar Murray, sitting as chief judge in bankruptcy. Messrs. Edwards & Co. applied to Messrs. Baum & Co., who were merchants at Danzig to discount bills drawn on them by Mr. J. G. Ord, and in order to induce them to do so they wrote a letter, dated the 14th of January, 1871, stating that Ord was a highly respectable and honourable man, and that they might safely rely upon his only drawing bills which he was authorized to draw. Baum & Co. accordingly discounted certain bills drawn by Ord upon Edwards & Co., but Edwards & Co. refused to accept them, on the ground that Ord was not authorized to draw them. On the 3rd of September, 1873, Baum & Co. brought an action in the Court of Common Pleas against Edwards & Co. for their loss in discounting the bills. The declaration contained several counts, some of them being in assumpsit on the promise of the defendants to accept the bills, and others in tort, on the misrepresentations contained in the letter of the 14th of January, 1871. On the 23rd of April, 1874, Edwards & Co. filed their petition for liquidation; and the creditors passed a resolution for a composition. The debtors then applied to the registrar for an injunction to restrain Baum & Co. from proceeding with the action, which the registrar granted, and Baum & Co. appealed from his decision. De Gex, Q.C., and Brough, for the appellants. THE LORD JUSTICE MELLISH said that it was clear that a claim for damages for misrepresentation could not be proved in Bankruptcy, and therefore was not within the 260th of the Bankruptcy Rules, which empowered the Court to restrain proceedings in any action against the debtor for any debt "provable in bankruptcy." He was of opinion that the fact of the creditors having joined counts in contract with counts in tort did not give the Court jurisdiction to restrain the proceedings on the counts in tort. The order of the registrar must, therefore, be varied, and the injunction would only be granted against the creditors proceeding on the counts which were founded on contract. THE LORD JUSTICE JAMES Concurred, and added that the creditors could not come in under the composition for any balance which they might fail to recover in the action. They must elect between proceeding at law or under the composition. Solicitors: F. W. Mount; Sorrell & Son. This was an appeal from a decision of Mr. Registrar Hazlitt acting as chief judge. with Scheibler & Co., who were merchants in London, to open a Holthausen & Co., who were merchants in Prussia, agreed credit in their favour for 5000l., on Scheibler & Co. depositing with them, as security, the title deeds of a house at Shanghai in China, which belonged to Scheibler & Co. The agreement was first made verbally in Prussia where the members of the firm of Scheibler & Co. were at the time, but it was confirmed by a letter written by them on their return to England. On the 0th of October, 1872, Scheibler & Co. wrote to Holthausen & Co., from London, inclosing the title deeds of the house at Shanghai, and the latter firm accordingly accepted bills in their favour according to the contract. The mortgage by deposit of the deeds was not registered at Shanghai, and conse quently, according to the German law, Holthausen & Co. ac- | quired no valid lien or charge on the house. On the 6th of August, 1873, Scheibler & Co. filed a petition for liquidation and a trustee was appointed. Holthausen & Co. then applied to the registrar for an order directing the trustee to cause the house at Shanghai to be duly assigned to them and registered in their name, but the registrar refused to make the order, and Holthausen & Co. appealed from his decision. J. Pearson, Q.C., and Latham, for the appellants. THE LORDS JUSTICES were of opinion that the contract was an English contract and must be governed by English law. But even if it were a German contract there was a clear personal liability on Scheibler & Co. to carry out the contract and give the mortgagees an efficient security, and by the English law of bankruptcy that liability passed to their trustee. He was therefore bound to perfect the security by giving Holthausen & Co. a legal transfer of the house, and if the house was sold they would be entitled to the proceeds to the extent of the debt. Solicitors: Freshfields & Williams; Hollams, Son, & Coward. L. JJ. In re ADANSONIA FIBRE COMPANY. July 31. Winding-up—Company consisting of Four Firms-Authority to accept Bills. This was an appeal by the official liquidator from a decision of Vice-Chancellor Malins (ante, p. 150). Cotton, Q.C., and Rodwell, for the appellant. THEIR LORDSHIPS held that the bills were not provable against the company, and discharged the order of the Vice-Chancellor. Solicitors: Paine & Layton; Druce, Sons, & Jackson. 8 Vict. c. 18, s. 69- Rebuilding Rectory-Payment to Rector. The Aylesbury and Buckingham Railway Company had taken part of the glebe of the Rectory of Waddesdon, and the price was fixed at 700l. The rectory house was old and dilapidated, and, with the consent of the bishop and the patron, an arrangement was made that the old house should be pulled down and a new house built at an expense of 1900l., the Commissioners of Queen Anne's Bounty advancing 11407., and the remaining 7601. being supplied by the money for the land taken by the railway company and by the patron. The rebuilding went on, but the railway company fell into difficulties, and did not pay the 7007. The rector thereupon advanced the money and the building was completed. The rector then filed a bill against the railway company for specific performance, and ultimately the railway company paid the purchase-money. The rector then presented a petition to have the money paid to him. The Master of the Rolls doubted if he had power to order the payment, and the petition now came before the Lords Justices. Townsend, in support of the application. Solicitors' Lien-Charge on Property recovered or preserved― North, for the purchaser. Macnaghten, for the trustees in bankruptcy, and Fry, Q.C., and Rodwell, for the purchaser's mortgagees, were not called upon. THEIR LORDSHIPS dismissed the appeal. Practice-Payment into Court-Motion after Decree and before In this suit a decree for an account had been made against the defendant (see ante, p. 131); and the defendant had filed Solicitors: Singleton & Tattershall; Doyle & Edwards; Wilkins, affidavits shewing a considerable sum coming to the plaintiff. L. JJ. This was an appeal from a decision of Vice-Chancellor Malins (ante, p. 158). Cotton, Q.C., and Cozens-Hardy, for the appellant. THEIR LORDSHIPS dismissed the appeal on a ground not taken below, namely, that the mortgage was made under a power of attorney which under the circumstances could not in equity be held to authorize the making it. Solicitors: Woolacott & Leonard; R. Jones & Co.; Pattison & Russell. Southgate, Q.C., and Kekewich, now moved that the defendant might be ordered to pay this sum into Court. Chitty, Q.C., and Graham Hastings, submitted that it was not in accordance with the practice of the Court to make such an order after decree and before further consideration of the cause. THE MASTER OF THE ROLLS made the order. Solicitors: Waller & Handson; Newman, Dale, & Stretton. M. R. Mr. Harper claimed to be entitled to compensation in respect of certain lands of his which he alleged to be injuriously affected by works of the Great Eastern Railway Company now in course of construction, and served on the company a notice in writing to appoint an arbitrator to assess the amount of compensation under s. 25 of the Lands Clauses Consolidation Act, 1845. Pursuant to this notice arbitrators were duly nominated in writing by Mr. Harper and the company, and had made their award. |