페이지 이미지

to account for all sums received by them, and to set forth the April, 1873, and on the 17th of July, 1873, the bill was amended, particulars of all the transactions entered into by them for the alleging that the plaintiffs were not ntitled to withdraw or purchase of scrip certificates and bonds on behalf the Republic. abandon their notice; and praying a further declaration that the

Upon the examination of Mr. Knowles before the special exa- defendants were bound to take the whole of the manufactory. miner the witness was asked to produce all the scrip certificates, A motion for an injunction had been ordered to stand to the the scrip book containing the entries of the scrip issued, and also hearing. the bonds which were in the possession of Knowles & Foster. Kay, Q.C., and Marten, Q.C., for the plaintiffs. Erlanger & Co, refused to allow the production of these docu- Jackson, Q.C., Speed, and W. P. Beale, for the defendants, nents, and the question was now argued before the Court were not heard.

Glasse, Q.C., Higgins, Q.C., and Locock Webb, for the Republic. THE VICE-CHANCELLOR held that the plaintiffs were right in Cotton, Q.C., Fry, Q.C., and Ingle Joyce, for Erlanger & Co. their contention, that if the defendants took any part of the Bristowe, Q.C., and Ferrers, for the defendants Cohen & Sons. manufactory they were compelled to take the whole; but tbat they J. Pearson, Q.C., Hemming, and Davey, for Knowles & Foster. were wrong in supposing that the effect of the notice of the 24th

THE VICE-CHANCELLOR was of opinion that the scrip certifi- of January was to render the defendants unable to withdraw cates which were received by Knowles & Foster on behalf of the their notice if they thought proper. His Honour said that to plaintiifs, upon the bonds being issued, were the property of the decree specific performance as prayed by the amended bill would Republic and must be produced, and the same principle applied be in opposition to the wishes of the parties, and contrary to the to the scrip book. But the bonds were differently situated. practice of the Court. The result was that there must be a Erlanger & Co. claimed a lien upon these bonds, and as a general declaration as prayed by the original bill; and the defendants rule & mortgagee was not bound to produce his securities; but must pay the costs of the suit up to the hearing. to this rule there were many exceptions, and it must be shewn Solicitors : J. Elliott Fox, agent for Earle, Son, & Co., Manthat the production would be injurious to the person holding the chester; C'unliffe & Beaumont, agents for Lingards & Neuby, documents. In the present case it was alleged that if the bonds Manchester, were produced, the Republic, by advertising the numbers of such bonds and declaring them to have been improperly obtained, might seriously injure their value, and in the case of a foreign

V.-C. B.

Nov. 4. government the Court had no power to enforce an undertaking

Will- Construction-Precatory Words. not to take such a course as this suggested, therefore he thought John House, who died on the 6th of July, 1823, seised of real the production of the bonds ought not at this stage of the suit estate, by his will, dated the 18th of January, 1815, devised and to be ordered.

bequeathed as follows:-“I give and bequeath all my worldly The costs were made costs in the cause.

estate both real and personal unto my only son John House, Solicitor: A. C. Edwards ; Bischoff, Bompas, & Bischoff ; G. M. and do hereby nominate and appoint him my whole and sole Clements.

executor, in trust nevertheless for the payment, execution, and

discharging the intentions and devises hereinafter made, and to V.-C. B. GRIERSON v. CHESHIRE LINES COMMITTEE. Nov. 4

which my said property real and personal so devised is hereby Notice to Treat-Counter Notice to take the whole of a Manufactory

made subject. And first, I bequeath to my wife, Ruth House,

for the term of her natural life, one hundred and twenty pounds - Notice to apply for Surveyor to value-Notice to withdraw

of lawful money, to be paid her half-yearly by my said executor. Specific Performance-Lands Clauses Act, 1845, s. 92.

And also I give and devise unto my wife, Ruth House, all my Bill filed on the 30th of January, 1873, by H. H. Grierson and household furniture, together with my dwelling-house, the Sir Eustace F. Piers, in partnership as ironfounders and me- orchard and close adjoining the said dwelling-house, and orchard chanical engineers at St. George's Ironworks, Hulme, Man- and close, for the term of her natural life and after to my said chester, under the firm of " Ormerod, Grierson, & Co.," against executor.” After bequests of various personal legacies, the will the above defendants, stating that the land occupied by their proceeded:"And I give and bequeath all the rest, residue, and ironworks, which was held by them on a term of 999 years, being remainder of my estate both real and personal after payment of traversed by the Manchester South Junction and Altrincham my just debts and funeral expenses unto my said son, John, Railway on piers, covering together with the line 1120 out of the requesting him that if he should not find an opportunity to 11,775 square yards of which the works consisted, and forming dispose of my freehold estate at Whitchurch greatly to his adnine arched-over spaces, in which part of plaintiffs' works was vantage, and to the benefit of his family, that the said estate carried on, the railway company on the 25th of July, 1872, should belong after him to his eldest son." served the plaintiffs with a notice to treat for the whole of the Ruth House, the widow, died in the testator's lifetime. plaintiffs' land lying on the north west side of the line; that on John House had had nine children, of whom John Way House, the 11th of January, 1873, the plaintiffs served a counter notice his eldest son and heir-at-law, died on the 27th of March, 1872, requiring the defendants to purchase the whole of the premises; having devised and bequeathed all his real and personal estate and that on the 24th of January, the defendants served the to his wife, Emma. plaintiffs with a notice of their intention to apply after seven The bill was filed by John House against the living children days to the Board of Trade, under the Railway Companies Act, and the representatives of such of them as were dead, stating 1867, for the appointment of a surveyor to determine the value that he had found an opportunity of disposing of a freehold of the lands comprised in the notice to treat; and praying for a estate at Winterborn Whitchurch, Dorset, part of the realty, to declaration that the plaintiffs ought not to be required to sell or great advantage, for 30001., that doubts had arisen as to the conconvey to the defendants the piece of land, or any other part only struction, and praying for a declaration that the plaintiff was not of the plaintiffs' manufactory, the plaintiffs being able and willing a trustee of the real estate for any other person than himself, and thereby offering to sell the whole; and for an injunction to and that he was absolutely entitled; or if the Court should be of restrain the defendants from entering on the land without pur- opinion that he was to any extent a trustee of the Winterborn chasing the whole manufactory.

estate, then for a declaration that the plaintiff had absolute After bill filed, the defendants, on the 26th of February, power to sell the said estate at his discretion, and retain the 1873, served a notice on the plaintiffs that they thereby with-purchase-money for his own use and benefit; with other relief. drew and abandoned the notice to treat, and offered to pay Whitehorne, for the plaintiff. the costs of the suit, and of the necessary order to stay Herbert Lake, for the children generally, did not oppose. further proceedings. The plaintiffs declined to accept the Eddis, Q.C., and Phear, for Emma House, contended that the offer, and insisted on an answer, which was filed on the 21st of effect of the will was to settle the Winterborn estate upon John

Common Law.

[ocr errors]

House for life, with remainder to bis eldest son. With this train. The registrar received the telegram at 12.10. He waited intention a power of sale was not inconsistent.

until 12.20, and then heard the case and made an adjudication. THE VICE-CHANCELLOR held, upon the true construction of the Pbillips' counsel reached the registrar's office at 12.32, and found will, that the property belonged to the plaintiff, John House, that the petitioning creditor and his solicitor were there still. He absolutely, and made a declaration accordingly; the costs of all applied to have the case reheard on its merits, but the registrar parties to be provided for and paid by the plaintiff.

said that it was too late, and refused to alter his order. Phillips Solicitors: Lewis, Munns, & Longden, agents for R. D, Marsh- appealud. field, Wareham; Prior, Bigg, Church, & Adams, agents for H. W. H. Wildey Wright, for the appellant. Dickinson, Poole.

Bagley, for the petitioning creditor. -- THE CHIEF JUDGE said that there had been undue haste in

the proceedings. There was a sincere intention to dispute the V.-C. H. JONES v. JONES.

Nov. 3. adjudication, and the registrar knew this, and that the parties Demurrer-Settlement_Trustee ignorant of Trust-Refusal to act. were on their way to the Court for this purpose. That being so, Effect of-Bill to appoint new Trustee.

it was inconsistent with the practice of the Court and with ordi

nary justice that the appellant should be deprived of his statuOne Jones, having a general power of appointment over cer

tory right to dispute the adjudication. The petition must go tain hereditaments, by an indenture, dated the 31st of December, he

ember, back to the registrar to be heard on its merits. 1855, in exercise of the power, appointed to Francis William

Solicitors: T. Noton; Hollams, Son, & Coward. Calder upon the trusts therein mentioned. By the deed Jones covenanted for further assurance. The deed was signed, sealed, and delivered by Jones, but was not communicated to or executed by Calder. The hereditaments comprised in the power were, subject to such power, limited to the use of Jones, his heirs and assigns, for ever In 1865, Jones made his will, not referring to the power by which he devised his real estate upon trusts, therein contained. Jones died in October, 1865, and his will

Nov. 5. was proved by the plaintiff. It was not until 1872 that the

HOWELLS v. LANDORE SIEMEN'S STEEL COMPANY. existence of the deed and the trusts of it were communicated to Calder, who positively refused to undertake the trusts on

Master and Servant-Liability of Master for Injury caused by account of his great age. The heir-at-law of Jones having

Fellow Servant. claimed the real estate as having descended on him free from the Action for damages for the death of J. H. caused by the neglitrusts of the indenture, the plaintiff thereupon filed this bill, I gence of defendants. praying that the hereditaments in question were subject to the The defendants were the owners of a colliery within the Coal trnsts of the deed, and for the appointment of new trustees.

| Mines Regulation Act, 1872 (35 & 36 Vict. c. 76); and they had To this bill the defendants demurred.

appointed a certificatod manager, as required by s. 26. The Dickinson, Q.C., and C. Browne, for the demurrer, contended deceased was a workman in the colliery, and was killed by an that the trustee named having repudiated the character of explosion of fire-damp caused, as the jury found, by the neglitrustee, there was no valid trust. It was well settled that this gence of the manager. Court will not aid an imperfect voluntary trust.

The presiding judge directed & verdict for the defendants, Westlake, Q.C., and Sherlock Hare, supported the bill.

being of opinion that the case was governed by Wilson v. Merry THE VICE-CHANCELLOR said that this settlement was valid (Law Rep. 1 H. L., Sc. 326), with leave to move to enter & verupon the face of it, and was believed to be such by the settlor dict for plaintiff, if the Court thought that the manager was not up to the time of his death, though he never communicated the a fellow servant with the deceased within that decision. trust to the person named as trustee. It was said, however, I Field, Q.C. (Bowen, Q.C., and B. T. Williams with him) moved that in consequence of the person named in the deed declining accordingly. to undertake the trusts, that the settlement was inoperative, and THE COURT (Cockburn, O.J., Blackburn, Quain, and Archithat the Court would not appoint a trustee. His Honour bald, JJ,) refused the rule. In order to make the defendants could not take that view. The case was not within the rule as liable for his negligence, it was necessary that the manager should to voluntary settlements. This view was strengthened by the be the servant of the defendants; and if he were a servant, then covenant for further assurance. The demurrer must be over the fact that he was a certificated manager appointed by the ruled.

defendants under s. 26, did not put him in any different posiSolicitor for all parties : John R. Adams.

tion from the manager in Wilson v. Merry, who was held to be a fellow workman with the deceased man.

Attorney for plaintiff: Woodward, Swansea.


Nov. 9.

Nov. 6. Bankruptcy Petition-Non-appearance of Debtor at Time fixed for BRADBURN V. GREAT WESTERN RAILWAY COMPANY. Hearing-Accidental Delay-Adjudication.

Negligence-Insurance-Damages. This was an appeal from a decision of the Registrar of the Action for negligence tried before Pigott, B., at the StaffordCroydon County Court.

shire Summer Assizes. The jury found a verdict for 2171., but The hearing of a bankruptcy petition, which had been pre- the defendants contended that this amount ought to be reduced sented against Richard Phillips, was fixed for 12 o'clock on the by 311., which the plaintiff had received from the Accidental 3rd of November. Phillips had given notice of his intention to Insurance Company on account of the accident in question. dispute the petitioning creditor's debt, and counsel was instructed The learned judge directed the verdict to be entered for 2171., on his behalf to attend the hearing. The counsel intended to reserving leave to the defendants to move for & rule to reduce leave London by a train which would arrive at Croydon at 12.10, I the amount of the verdict by 311. but on reaching the station, found that the time of the departure | Huddleston, Q.C., moved accordingly, but of the train had been altered, and that he could not reach | THE COURT (Bramwell, Pigott, and Amphlett, BB.) refused Croydon till 12.23. He thereupon telegraphed to the registrar the rule. that he was on his way to the court, but that he had missed his Attorneys for defendants: Young, Maples, & Co.





SAULL v. BROWNE (Criminal ProceedingsInjunction)

L.'C. & L. JJ. 192 SHERIFF OF HEREFORDSHIRE, Ex parte. In re W. Smith (Trader

Debtor--Execution-Sale-Liquidation Petition-Notice to

Sherif-Bankruptcy Act, 1869, 8. 87 . BNKCY. 199 Equity.

Tanner's Trusts, In re (Marrried Woman-Separate Estate

Transfer of Fund). BALL, Ex parte. In re Adams (Winding-up-Unregistered Com

. . . . . 1-0. H. 198 pany-Bankrupt Contributory). . . L. C. & L. JJ. 192 BATLEY v. KYNOCK (Patent-Practice-Inspection), V.-C. B. 197.

Common Law. BOLLAND, Ex parte. In re HOLDEN (Bankruptcy Act, 1869, 8. 96 -Summons for Examination-Service-High Bailiff of County

Banks, APP.; CROSSLAND, RESP. (Master and Servant-30 & 31 Court Bankruptcy Rules, 1870, rr. 58, 166, 167)" "Bakcy. 198

V'ict. c. 141, 8. 3, sch. 1–4 Geo. 4, c. 34, 8, 3-Proceedings

against Servant who has not entered into Service-Parol ConCAAVASSE r. STEVENS (Assignment of Patent-Representation as

tract not enforceable -- Statute of Frauds, 8. 4) , Q. B. 193 to calidity of Patent-Setting aside Assignment). M. R. 193

ELLIS AND OTHERS v. WILMOT (Principal and Surety-Efect of COLES 1. PILKINGTON (Verbal Agreement - Part Performance

Discharge of Principal under the Bankruptcy Act, 8. 125) Ex. 200 Statute of Fraud). . . . . . V.-C. M.


Houses Act (16 & 17 Vict. c. 19) 88.1, 3Place"-- Person (Right of Common of Pasture-Waste of Forest - Immemorial

knowingly and wilfully permitting Place to be used by other Usage--Suit against Lord of Manor). . . M. R. 192 Person for the Purpose of Betting with Persons resorting CROMPTON 0. LEA (Demurrer-Mines-Working so as to flood a

thereto) . . . . . . . Q. B. 199 Mine at a lower Level-Danger to Life) . . V.C. H. 197 MARSHALL v. King (Bankrupt-Promise to pay debt after AdjudiGILLIBRAND, Ex parle. In re SIDEBOTHAM (Evidence-Judge's

cation but before Order of Discharge-Bankruptcy Act, 1869 Notes - Trial of Issue before Judge-Bankruptcy Act, 1862,

(32 & 33 Vict. c. 71), 88. 12, 13) . . . Q. B. 200 3. 72) . . . . . . . L. C. & L.JJ. 191 PLUMSTEAD BOARD OF Works v. BRITISH LAND COMPANY (MetroGISBORNE 0. GISBORNE (Provision for Wife by Settlement-Lunacy

polis Management Act, 1862 (25 & 26 Vict. c. 102), s. 77of Wife-Provision by Husband by Will-Appointment of Com.

Owners of " Land "-Public Roads-Land--Conveyance, inmittees - Provision by Will Primary Fund for Main enance

tention not to pass Soil of adjacent Road) . . Q. B. 199 of Lunatic) . . . . . . . V.-C. H. 198 Reg v. HARVEY ( Highway5 & 6 Will. 4, c. 50, 88. 84, 85-StopGLASSBROOK 0. RICHARDSON (Specific Performance-Sale of Coal

ping up Highway as unnecessary - Certificate, Requisites of) . . . . . . M. R. 194

Q. B. 20.) Gowan 1. BROUGHTON (Administration-Expenses and Debts

Lipeed Legacies) . . . . . . V.-C. M. 194 During the sittings of the Courts THE WEEKLY NOTES will be published HARVEY 7. MOBRIS (Practice-Deposit of negotiable Securities for on Saturday, and will generally comprise Notes of the Decisions up to safe Custody). . .

. . . M. R. 194

and including those of the previous Wednesday. All cases of permanent HARVIE 0. SOUTH DEVON RAILWAY COMPANY (Lands Clauses Act

interest noted herein will be reported in full in THE LAW REPORTS. -Notice to treatHouse”) . . . . V.-C. M. 195 Heugh 1. EARL OF ABERGAVENNY (Principal and AgentTort

-Injunction-Parties) . . . . . M. R. 193 HIDE . CLARK (Practice-Foreclosure Decree taken against some

of the Defendants pro confesso-Service of Decree out of Juris. diction ordered to be effected by Advertisement-Cons. Ord.

ezii.rr. 11, 12, 15) . . . . . V.-C. B. 196 JERVIS 0. BERRIDGE (Vacating a Lis pendens—30 & 31 Vict. c. 47)

V.-C. M. 195
L. C. & L.JJ. Lo parte GILLIBRAND.

Nov. 13. LINDSAY, Ex parte. In re LINDSAY (Bankruptcy Petition-Allegation of act of bankruptcy-Evidence in support- Adjudica

In re SIDEBOTHAM. tion, Deputy Registrar-Jurisdiction - Delegated Authority Evidence-Judge's Notes--Trial of Issue before Judge-Bankruptcy Bankruptcy Act, 1869, 88. 4, 6, 8, 67-Bankruptcy Rules, 1870,

Act, 1862, s. 72. TT. 1, 2, 3, 4, 36, 37) . . . . . BNKCY. 199] In this case an issue had been tried before the judge of the Morris's ESTATE, In re. MORRIS v. MORRIS (Retainer by Ege county court of Manchester, without a jury, as to the circum

culor-Partnership AccountsDebt not yet ascertained) L.JJ. 192 stances under which T. Johnson and J. Beardsall claimed to NELSON's Case. In re UNITED PORTS AND GENERAL INSURANCE prove on a promissory note for 10001. against the estate of the COMPANY (Winding-up Company Invalid Transfer of

bankrupts, Messrs. Sidebotham & Marsh. The judge came to Business--Delay) . . . . . . V.-C. B. 197 | the conclusion that the note was given by the authority of the

firm, and that the holders received it for good consideration, and NEWTON v. TAYLOR (Practice-Partnership Suit-Reference to Arbitration-Common Law Procedure Act, 1854, 8. 11-Costs)

he therefore made an order admitting the proof, and this decision M. R. 194

was affirmed by the chief judge. The trustee in the bankruptcy

appealed from the decision of the chief judge. The judge's notes PAYNE . WEBB (Construction of Will --Gift to Children and

of the evidence were verified and put in evidence; and the notes Grandchildren-Per capitu and noi per stirpes). V.-C.M. 195

* of a shorthand writer were also produced and verified by his PETERSBURG AND VIBORG Gas COMPANY, In re (Petition to wind affidavit.

up-Commencing Business within a Year-Just and Equ table Roxburgh, Q.C., and Finlay Knight, for the appellant.

Clause). . . . . . . . V.-C. M. 196 Benjamin, Q.C., and Hamilton Humphreys, for the respondents. RHYs v. DARE VALLEY RAILWAY COMPANY (Interest on Purchase On the counsel for the appellant offering to read the short

money-Railway Company-Possession taken) V.-C. B. 196 hand notes of the trial, the counsel for the respondents objected No. 31,-1874


to them, as the notes of the judge were in court, and they were In November, 1874, the plaintiff obtained from a police court not satisfied of the correctness of the shorthand notes

a summons against the two other partners for a conspiracy to THE LORD CHANCELLOR said that the Court was of opinion defraud her out of her share in the business, that when the judge's notes of the trial were produced the short- Fry, Q.C., and Ince, now moved to have the proceedings on han 1 writer's notes could not be admitted without the consent of the summons restrained. both parties.

Fischer, Q.C., and Locock Webb, for the plaintiff. The counsel for the respondents then objected that as there THEIR LORDSHIPS said the suit was to recover property, and had been no application for a new trial the finding of the judge the summons was to obtain punishment. The motion was rewas conclusive on the issue of fact, in the same way as a verdict fused with costs. of a jury at common law.

Solicitors: Howard & Co.; Miller & Miller,
THE LORD CHANCELLOR said that there was nothing in the
Bankruptcy Act, 1869, to confine the Court to any technical rules
as to the trial of an issue before a judge.
The case was then heard upon the merits.

|L. JJ.

Nov. 16. THE COURT was of opinion that the decisions of the county

MORRIS v. MORRIS. court judge and the chief judge were correct, and dismissed the Retainer by Executor-Partnership Accounts-Debt not yet appeal with costs.

ascertained. Solicitors : Phelps & Sidgwick, agents for Sale & Co., Manches

This was an appeal from a decision of Vice-Chancellor Hall. ter; E. Storer, Manchester.

T. A. Morris, the testator in the cause, was during his life in partnership with his two brothers, R. Morris and G. W. Morris.

By his will he appointed G. W. Morris and another person his L. C. & L. JJ.


Nov. 13.
Es parte BALL.

The present suit was instituted against the executors

for the administration of his estate. The accounts of the partnerIn re ADAMS.

ship had not been taken, but the surviving partners filed an Winding-up-Unregistered Company-Bankrupt Contributory. affidavit stating that the testator's share of the liabilities of the

This was an appeal from a decision of Mr. Registrar Roche partnership amounted to 31051. The executors had in their sitting as chief judge in bankruptcy,

hands 7101, belonging to the testator's assets, and G. W. Morris In 1871 four firms of merchants in London, of whom the firm claimed his right as executor to retain this sum in part satisfacof Adams & Co. was one, entered into a partnership for trading tion of the testator's liability to the firm. The Vice-Chancellor with the coast of Africa under the style of the Adansonia Fibre allowed the right of retainer, and directed that as the accounts Company. The company was composed of eight persons, but of the firm were very voluminous they need not be taken. One it was not registered under the Companies Act, 1862. Iu of the creditors appealed from this decision. February, 1873, the company was wound up under the 199th sect. W. Pearson, Q.C., and Bardswell, for the appellant, contended of the Companies Act, 1862, and W. J. Adams, a member of the that the right of retainer did not extend to a debt which had not firm of Adams & Co., soon afterwards presented a petition for beon ascertained, and which could not be ascertained in a court liquidation, under which a trustee was appointed.

of law. This was the case with the present liability, which The official liquidator in the winding-up estimated the amount depended on the result of the partnership accounts, which a court of calls which would become due from W. J. Adams as a con- of law was incapable of taking. tributory to the company as 92,0001., and carried in a claim to Karsluke, Q.C., and Locock Webb, for the plaintiff. that amount against his estate. The registrar rejected the claim Lindley, Q.C., and Bury, for the defendant Morris. on the 'ground that as the Adansonia Fibre Company was an THE LORD JUSTICE JAMES said that the courts of law had adordinary partnership and not a corporation, the claim was in mitted a right of retainer in the case of equitable debts, and they violation of the rule that joint creditors cannot prove against had never denied that right in the case of a debt which could the separate estate of a partner in competition with the separate only be ascertained by taking the accounts of a partnership. creditors.

But a court of law, not being able to take such accounts, was The official liquidator appealed from this decision.

unable to give effect to that right. That was no reason why a Rodwell, for the appellant, contended that the 95th section of court of equity, which had the power of taking such accounts, the Companies Act, 1862, was as applicable to the case of an un- should not give effect to the right of retainer. The Vice-Chanregistered company as if a registered company, and therefore cellor was quite right, and the appeal must be dismissed with that the official liquidator was entitled to rank with the separate costs. creditors of the liquidating debtor.

THE LORD JUSTICE MELLISH concurred. G. W. Lawrance, for the trustee of W. J. Adams' estate.

Solicitors: Scott & Co.; W, H, Lammin. THE LORD CHANCELLOR said he was of opinion that it was the intention of the legislatura to apply the 95th section to unregistered companies wound up under the 199th section as M. R.

Nov. 10. well as to companies registered under the Act. The official COMMISSIONERS OF SEWERS OF THE CITY OF LONDON v. liquidator ought therefore to have been allowed to bring in his

GLASSE. claim, and the order of the registrar must be discharged.

Right of Common of Pasture-Wasle of ForestImmemoriul THE LORDS JUSTICES JAMES and MELLISH concurred.

Usage-Suit against Lord of Manor. Solicitors : Paine & Layton; Linklater & Co.

The plaintiffs in this suit, who were owners, and, as to part, occupiers of land within the boundaries of the Forest of Essex,

filed their bill on behalf of themselves and all others the owners L. C. & L. JJ. SAULL v. BROWNE.

Nov. 18.

and occupiers of land within the Forest, except such of them as

were defendants, against the lords of the several manors within Criminal Proceedings-Injunction.

the Forest, and two persons who claimed to be the owners and The bill in this case was filed in 1872 by one partner against occupiers of portions of waste lands which had been enclosed, two other partners, alleging that they had formed a scheme to and the Attorney-General. transfer the business, and asking for a sale of the partnership The bill alleged that the whole of the Forest was subject to property, and that the defendants might pay her for the losses rights reserved by the Crown on granting the manors, and that occasioned by the transfer of the business.

the Crown had reserved an absolute right of disposition over the


berbage; that the lords of manors within the Forest could not M. R.


Nov. 11. inclose with the consent of their respective homages without licence from the Crown; that the government of the Forest was

| Assignment of PatentRepresentation as to validity of Patent

~ formerly administered by Forest Courts, whose jurisdiction em

Setting aside Assignment, braced all matters touching the preservation of the rights of the This was a suit to set aside an assignment of a patent to the Crown in the Forest; that, by virtue of ancient Forest laws made plaintiff on the ground of misrepresentation. by the Crown, the owners of lands and tenements within the Previously to January, 1865, one Charles Falck represented to Forest had enjoyed rights of common of pasture over the wastes the plaintiff that he was the inventor of a new and useful invenof the Forest; that such rights had from time immemorial been tion for improvements in ice safes, and that such invention was enjoyed by the owners and occupiers of such lands and tene- of a character for which valid letters patent might be obtained; ments, without regard to the boundaries of the manors or and Falck requested the plaintiff to supply him with money to parishes in which the lands and tenements were situate; and take out a patent, which the plaintiff did upon the faith of Falck's that the plaintiffs and their predecessors in title, and their representations, and on the terms that the patent should be tenants, and the other owners and occupiers of lands and tene- assigned to the plaintiff. ments within the Forest, had from time immemorial enjoyed as Falck accordingly took out a patent, and by a deed, dated the of right, by virtue of the said Forest laws, as appendant or ap- 27th of July, 1865, assigned it to the plaintiff, who was to pay to partenant to their respective lands and tenements, common of Falck a royalty on all machines manufactured under the patent. pasture for cattle levant and couchant on their respective tene- The deed contained absolute covenants for title by Falck. ments over the waste lands of the forest.

The plaintiff alleged that he had since discovered that Falck The plaintiffs prayed a declaration of the right claimed, and was not the true inventor of his alleged invention; that it was for an injunction restraining the defendants from inclosing any not a new or useful invention, or an invention at all, for which & of the waste lands and from allowing any parts which had been valid patent could be granted; that the letters patent were ininclosed within twenty years of the filing of the bill to remain valid ; that the representations, on the faith of which the plaintiff 80.

had made advances and executed the deed of the 27th of July, The plaintiffs, in sapport of their case, adduced evidence to 1865, were untrue. shew that there was a division of the Forest into parishes, each In July, 1873, the plaintiff instituted this suit against Falck's of which had an officer called a reeve, whose duty it was to assignee in bankruptcy; and the suit now came on to be heard. mark the beasts which were allowed to graze on the waste lands It appeared that the plaintiff's discovery had been made in or of the Forest, and that the right of depasturing cattle was not about October, 1867; but the plaintiff alleged by way of excuse limited to that part which was within the parishes where the for delay in taking proceedings that the sale of the patented owners of such cattle resided, but extended over the whole articles was very small, and the royalties due in respect thereof

much less than what was due to the plaintiff from Falck, from The defendants, the lords of the manor, claimed the right to whom nothing could be recovered. inclose the waste of the Forest. They adduced evidence to shew Chitty, Q.C., and Hemming, for the plaintiff. that the right of depasturing cattle was by usage limited to the Southgate, Q.C., and Graham Hastings, for the defendant. ambit of the parishes to which the commoners who owned the THE MASTER OF THE ROLLs held that the invalidity of the cattle belonged. They contended that the right of common, if patent was not established ; that the representations of Falck established, did not accord with that claimed by the bill; further, were made bona fide; that the representations were not that the ancient rights of common only appertained to so much representations of fact, but of matter of opinion ; and that the of the waste as belonged to the king; that the area of the Forest plaintiff had not repudiated the assignment in proper time after had varied in different times, and that no right of common could making his alleged discoveries; and he dismissed the bill with be claimed over a forest of variable extent; that the alleged costs. rights could not exist after the Forest laws had ceased to be in Solicitors: Bell & Crowder; Harper, Broad, & Battcock. force, and that the alleged right of common was that of common appartenant only quá each particular parish, and was in the Dature of common of vicinage quâ the rest of the Forest.

Manisty, Q.C., Joshua Williams, Q.C., Fry, Q.C., and W.R. Fisher, | M. R. HEUGH v. EARL OF ABERGAVENNY. Nov. 11. for the plaintiffs. Southgate, Q.C., Matthews, Q.C., Chapman Barber, Cookson, Keke

Principal and AgentTort-Injunction-Parties. wich, Cecil Russell, W. F. Robinson, J. T, Humphry, T. C. Wright, | This was a demurrer. Freeling, Dickins, and Rigby, for the lords of the manors.

The plaintiff was the owner and occupier of & mansion-house Langworthy, for the owners of lands alleged to be illegally and grounds adjoining the property of the Earl of Abergavenny. inclosed.

A stream ran through the lands of the plaintiff and the Earl, and The Attorney-General (Sir R. Baggallay), and W. W. Karslake, a weir had been erected across the stream at a point within the for the Crown.

lands of the plaintiff. THE MASTER OF THE ROLLS held, on the facts of the case, The plaintiff claimed to be entitled to use this weir so as to that the owners and occupiers of lands in the Forest had a right pen back the water, and so as to afford the means of working a of common of pasture appendant or appurtenant to their lands wheel and machinery for the purpose of forcing up spring water and tenements over all the waste lands of the forest; that the collected in a reservoir adjoining the weir to the mansion-house plaintiffs had established their case; that all the grounds of and premises of the plaintiff, and also to convey water to the the defence had failed; and that the defendants must bear the reservoir from a spring situate in the plaintiff's grounds, through costs of the suit, except those of one defendant who had dis- pipes situate partly in the plaintiff's lands and partly in the claimed at the bar, and the costs of the Crown.

Earl's. Solicitors for the plaintiffs : Horne & Hunter, agents for the The defendant Delves was a land agent, who in divers letters City solicitor.

purporting to be written on behalf of the Earl had questioned Solicitors for the defendants : Collyer-Bristow, Withers, & Rus- the rights claimed by the plaintiff, and finally, in a letter dated sell ; Cullington & Slaughter; Markby, Wilde, & Burra; Beach- the 3rd of August, 1874, stated that he had his lordsbip's positive croft & Thompson; H. H. Walford; Budd Sons: Sewell & instructions to have the pipes taken up, and the flow of the stream Edwards; Druce, Sons, & Jackson ; Tamplin, Tayler, & Joseph ; restored, on Thursday, the 6th of August. Bothamleys & Freeman ; Lee, Bolton, Lee; Kingsford & Dorman; The bill was thereupon filed against the Earl and Delves, and Hollingsworth, Tyerman, & Son; Solicitor to the Board of Works. alleged that the defendants respectively threatened and intended

« 이전계속 »