and convert, and stand possessed of the moneys in trust for his |
nephews and nieces (except the children of a brother whom he
named) who should be living at his wife's decease, and the
children of any who might be dead. He gave his trustees a
power at any time during his wife's lifetime to sell and convert
the whole or any part of his residuary real and personal estate,
"in such manner in every respect as his trustees or trustee
should" in their or his uncontrolled discretion think proper."
Testator at his death was entitled to-1, freehold lands for
which a fixed rent was paid, and in which were situate brick-
fields and other mines; 2, royalties in respect of the bricks
manufactured; 3, leaseholds; and 4, the stock and plant used
in making a particular cement, in which business he was a
partner.

The only question was whether the widow was entitled to the income of the above property in specie, or whether the remaindermen were entitled to have it capitalized.

Kay, Q.C., and Osler, for the plaintiff, the widow. Bristowe, Q.C., and E. Thurstan Holland, for one of the remaindermen, as representing the rest; the class being still undetermined.

Speed, for the trustees.

THE VICE-CHANCELLOR said the language of the will was tolerably clear. The direction that the widow should receive "the rents, dividends, interest, and annual proceeds," plainly pointed to an enjoyment in specie; and the only thing which could throw a doubt upon this construction was the power given to his trustees to sell at their discretion. Nobody could say that the trustees could be forced to sell against their discretion, and the power did not, in His Honour's opinion, neutralise or qualify the direction that the widow was to have the income of the real and personal estate as it stood. There would be a declaration that she was entitled to enjoy in specie the income of all such parts as the trustees should not in their discretion think proper to sell; the costs of all parties, as between solicitor and client, to come out of the capital. The Court also directed (but not as part of the order) that the absent remaindermen should be served with a copy of the order.

Solicitors: Shaen, Rosco', & Massey; Taylor, Hoare, Taylor, & Cooke.

V.-C. B.

Thomas Benjamin, John, and Edward. Of these six sums, the first three were described as "37. per cent. Consolidated Annuities, further part of the said larger sum," and the last three as "like annuities." By a codicil he said he was desirous of increasing the allowance to Joanna Cock to 14s. a week, and therefore he bequeathed "520l. 31. per cent. Consolidated Bank Annuities, part of a larger sum of like annuities, in addition to the 7001. like annuities, bequeathed to" the trustees by his will for that purpose. The total amount of bank annuities thus bequeathed was 26,3701. Testator bequeathed his residue upon trusts for sale and conversion, and out of the proceeds to pay his debts and funeral and testamentary expenses, "and the legacies hereby bequeathed," and the legacy and other duties, and to divide the proceeds amongst the persons therein mentioned.

At the date of making his will and at his death he had standing in his name only 9,524. 16s. 11d. Consols.; but he had also 14,643. 6s. 5d New and 87221. 6s. 5d. Reduced 37. per cent. Annuities.

The plaintiffs, the residuary legatees, contended that the above legacies were specific, i.c., were payable out of the sum of Consols only; in which case they must necessarily abate.

The defendants, the legatees, on the other hand, argued either that they were general legacies, and had to be answered by the payment to the legatees of so much money as would purchase the several sums of stock; or that they were demonstrative, and payable out of all the testator's 31. per cent. Bank Annuities as a common fund.

Eddis, Q.C., and Laing, for the plaintiffs.

Kay, Q.C., for the defendants:-The Court will strive for some construction which will not defeat the will. The legacies are general; or, if not, they may be treated as demonstrative, by construing "like" as meaning not necessarily "Consolidated only, but "similar," i.c., any class of bank annuities yielding 31. per cent.

W. F. Lawrence (for Dalton), for the trustees.
Eddis in reply.

THE VICE-CHANCELLOR said he must take it that the testator knew what he was possessed of when he sat down to make his will. Supposing him to have had that knowledge, the case presented no great difficulty. The expressions were not to be construed with strict and literal accuracy. It was to be observed that when the testator used the words "part of a larger sum,” he did not say, "part of a larger sum of Consolidated” Annuities, but "part of a larger sum of like" annuities. If there had been anything to shew that the testator meant to draw a distinction between Consols and any other class of Government annuities, there might have been some ground for the contention that the legacies were specific. But from the beginning to the end there was no trace of any such intention; and all doubt was removed by the provisions, that on failure of children of his son E. E. Bumpus, the 2000. stock legacy was to form part of the residuary estate, and that the residue was given subject to the payment of "the legacies hereby bequeathed." That put the question beyond serious doubt. Nor did the Court feel obliged to hold that the expression "like" was to be confined to "Consolidated" annuities. The decision would be that these legacies were not specific, but general legacies, and that they were payable out of the three sums of 37. per cent. annuities, of which the testator was possessed at his death. The costs of all parties would come out of the fund.

BUMPUS v. BUMPUS. Jan. 21. Will-Legacies-Whether specific, general, or demonstrative. Thomas Bumpus, who died on the 10th of May, 1872, by his will, dated the 25th of August, 1870, after giving certain pecuniary legacies and two sums of 50%. and 1007. Consols respectively, bequeathed "700. 31. per cent. Consolidated Bank Annuities, part of a larger sum of like annuities" standing in his name, upon trus: from time to time during the life of his old and faithful servant Joanna Cock to pay her out of the dividends weekly, every week, the sum of 8s. for her separate use. He bequeathed a sum of "2000. like annuities-further part of the said larger sum," for the benefit of his son Evan Evans Bumpus for life, or until bankruptcy, and after his death, as to one moiety, in trust for his (the son's) widow during widowhood, and as to the other moiety for the children until the youngest should attain 21; and subject to the trusts aforesaid, upon trust to divide "the said 20007. Consolidated Bank Annuities" equally between his (the son's) children, and if no children, upon trust to apply "the said 20001. Consols as part of my residuary estate." He then bequeathed a sum of "2000. 31. per cent. Consolidated Bank Annuities, further part of the said larger sum," upon similar trusts for the benefit of another son, Arthur. He then gave to his son Arthur a further sum of "1000l. 37. per cent. V.-C. B. Consolidated Bank Annuities, further part of the said larger sum," for his own absolute "use and benefit;" and then bequeathed six separate sums of 4,000l. annuities for the benefit of Motion to restrain the further publication and sale of any his daughters Frances Margaret Hayes (who died in his life-copies of the Bristol Mercury (of which defendant was the protime), Margaret Ann Shepherd, and Mary Bumpus, and his sons prietor) containing two tales called "A Troubled Night "and

Solicitors for all parties: Walker & Jerwood,

MAXWELL v. SOMERTON.
Copyright-Injunction.

Jan. 22.

"How I Lost the County," copied or pirated from the Belgravia Annual and the Belgravia Magazine, of which plaintiff was the proprietor.

The Belgravia Annual for 1874 was published in November last, and contained a tale called "A Troubled Night."

In the number of the Bristol Mercury (a weekly newspaper) of the 22nd of November this tale was published in its entirety without comment, as an extract from the Belgravia Annual. On the 6th of December, in like manner, "How I Lost the County," taken from the Belgravia Magazine for December, was published in defendant's paper. In restraint of such publication, and of the publication of any other tale, paper, or article copied, taken, or colourably altered from the plaintiff's magazine and annual, the present bill was filed.

Defendant contended that he had acted bonâ fide in accordance with a custom of the trade by which, as a means of advertisement, London publications were forwarded to the country newspapers, and republished, without any notion of thereby infringing the copyright. Defendant was willing to give an undertaking, and would if applied to at once have stopped the publication of plaintiff's tales, but as the bill had been oppressively filed, without the slightest notice, plaintiff ought to be visited in costs. Kay, Q.C., and Northmore Lawrence, for plaintiff. Swanston, Q.C., and Mucnaghten, for defendant. THE VICE-CHANCELLOR said that it was well settled that plaintiff was legally entitled to restrain the republication of the publication of extracts, or a bona fide abridgment for the purpose of criticism, and the custom of trade alleged by them was no justification. Plaintiff was entitled to an injunction, but as defendant appeared to have been acting in good faith, without any intention of doing wrong, neither party would have any Solicitors: Coulard; Meredith, Roberts, & Mills, for Gwynn & Westhorp, Bristol.

whole articles or tales. Defendant had not confined himself to

costs.

THE VICE-CHANCELLOR said it was hardly necessary to repeat the often-stated rule that the testator's intention must be gathered from the expressions he had used; and here he could not say that the testator had mentioned any person to whom he had given his residue. His Honour was sorry for the result; but it too often happened that from somebody's neglect or carelessness a testator failed to express his intention. In this case, from whatever cause, the testator had so failed; and there must be a declaration that the plaintiff as heir and next of kin was entitled to the residuary real and personal estate. Solicitors: Emmet & Son, agents for Mossman, Bradford; G. E. Philbrick, agent for Walker, Halifax.

Practice-Winding-up Petition.

order, asked that his petition might be dismissed, as his debt Speed, on behalf of the petitioning creditor for a winding-up had been paid.

Crossley, for another creditor, asked that the order might be made, and submitted that a person who had presented a windlet it come to a hearing in order to give creditors and shareing-up petition had no power to withdraw it, but was bound to holders the opportunity of appearing to support or oppose it. whom Crossley appeared knew that the petitioner would apply Romer, for the company, submitted that as the creditor for to have the petition dismissed, he was not entitled to the costs of appearing.

litis, and therefore entitled to have his own petition dismissed, THE VICE-CHANCELLOR, holding that the petitioner was dominus made an order dismissing the petition with costs, including the costs of the creditor (for whom Crossley had appeared). Solicitors: Wild, Barber & Brown; W. II. Head.

V.-C. B.
Jan. 24.
WILSON V. NORTHAMPTON AND BANBURY JUNCTION RAILWAY
COMPANY.

Specific Performance-Contract to execute Works-Damages. Bill to enforce specific performance of an agreement entered into in June, 1863, by the promoters of the defendant company with plaintiff, a landowner, in consideration of his withdrawing his opposition to their bill, then pending before Parliament, for the erection at their own cost, when incorporated, in a good, substantial, and workmanlike manner, a station and other specified works on the plaintiff's land.

Will-Imperfect Gift-Want of Object-Intestacy. Jonas Driver, who died on the 24th of March, 1869, by his will, dated the 24th of December, 1867, after directing the payment of his just debts, funeral and testamentary expenses, devised and bequeathed all his property of what nature or kind soever, "unto my executor hereinafter appointed, upon trust for the uses, intents, and purposes of this my last will, that is to say;" then followed gifts of 300l. to his daughter Sarah, wife of Thomas Horsfall, and of 5s. a week to his son John Driver for life; and after other specific gifts, the testator concluded thus: "I further order that after paying the before-mentioned 300l. to my daughter Sarah, the wife of Thomas Horsfall aforesaid, and After some negotiation, in the course of which plaintiff offered the aforesaid legacy to my son John Driver, I give and bequeath in consideration of au annuity or rent-charge of 1001. per annum, the remainder of my property of what nature or kind soever it to waive the agreement, and allow the company to substitute a may be, whether in possession, reversion, or expectancy, all station at a distance of two miles from the site agreed to upon interests, incomes, issues, and profits, book debts, money, secu- plaintiff's land, this proposal fell to the ground, and the comrities for money, and any other property of which I may die pos-pany having erected their station about two miles from plainsessed, and I nominate and appoint my son Robinson Driver of Oakenshaw, farmer and publican, sole executor of this my last will and testament."

The bill was filed for administration by the heir-at-law and next of kin, claiming the residuary real and personal estate as upon an intestacy. The defendant, Robinson Driver, the executor, claimed the same residue upon the construction of the will as containing by implication a gift to him beneficially.

Kay, Q.C., and Kekewich, for the plaintiff :--There is a gift to Robinson Driver, but it is expressly "upon trust." He is precluded, therefore, from claiming beneficially. The residuary devise and bequest is void for want of an object.

tiff's land, the bill was filed to compel specific performance of the agreement of June, 1863. The defendants admitted the agreement, but insisted that it was not one of which the Court could direct specific performance.

Evidence was adduced for the purpose of shewing that the position of the station as erected was far more convenient for the general public and the requirements of the traffic than that proposed by the agreement.

Eddis, Q.C., and D. Jones, for plaintiff.
Kay, Q.C., and Kekewich, for defendants.

THE VICE-CHANCELLOR had not the slightest doubt as to the jurisdiction of the Court to decree specific performance of such Whitehorne, for the defendant:-There is a gift of the residue an agreement. But having regard to the discretion given to to Robinson Driver. The word "to" is not absolutely neces-him by the Legislature, it was a case for relief in damages rather sary. The will must be read, I give and bequeath the remainder to Robinson Driver, and I appoint him executor.

than by decree for specific performance. It was clearly a money question, and if specific performance were directed great diffi

Administration-Legacy Duty-Costs-Residue. Sir De Lacy Evans, the testator, by his will and codicils gave a large number of legacies, some of which were given so as to be subject to legacy duty, and others were given free of legacy duty. Besides these legacies, testator gave to defendant, P. A. Hughes, a legacy of 2000l. free of legacy duty, which he directed should be borne and paid out of his residuary estate. He also gave legacies to Mrs. Passy and her two sons, and to C. R. Williams, with a similar direction for payment of the legacy duty out of his residuary estate.

Upon the hearing in June, 1873, upon subsequent further consideration, it being uncertain whether the estate would or would not be deficient for payment of all the legacies in full, the Vice-Chancellor directed payment of the corpus of the legacies, taxation, and payment of costs, and adjourned the further hearing.

ATTORNEY-GENERAL AND COMMISSIONERS FOR THE REDUCTION OF THE NATIONAL DEBT v. RAY. Annuities granted by Commissioners for the Reduction of the National Debt-Misrepresentations-Contracts set aside. Atlas Assurance Company for a declaration that two contracts This was an information and bill against the secretary of the for the purchase and sale of two annuities of 100. 1s. 6d., and Surrey, granted by the Commissioners for the Reduction of the 100/. 2s., respectively, on the life of Thomas Chalk, of Kingston, National Debt to the trustees of the company were void; and that they might be cancelled. In December, 1843, the company, through their actuary, applied to the Commissioners for These payments having been made, it was ascertained that the annuity on the life of Thomas Chalk. The declaration signed by the purchase in the names of the trustees of the company of an estate was deficient to a small extent, and the cause now came on the actuary, and delivered to the Commissioners, stated that the for the adjourned hearing. The question was whether defen- trustees were desirous to pay to them 9361. in money on 3 per dant Hughes and the other legatees, whose legacies were given cent. Reduced, at 977., and 1l. 2s. 6d. commission thereon, for the with a direction that the duty was to be paid out of the tes-purchase of a life annuity, and the actuary said, “I do hereby tator's residuary estate, were to bear the duty upon their own nominate Thomas Chalk, of Kingston, Surrey, gentleman, now legacies to the extent to which the estate was deficient for pay of the age of 64 years, to be the person on the continuance of ment of duty, or whether the residuary legacies given subject whose life the said annuity is to depend, and whose age is certito duty were to abate, so as thereby to provide the means of pay-fied and verified by the declaration now produced." There was ing the legacy duty on the legacies to Hughes and the other persons whose legacies were similarly given.

W. Renshaw, for the plaintiffs.

Eddis, Q.C., for Hughes and the other legatees of the same

class.

Phear (Kay, Q.C., with him), for the residuary and some of the ordinary legatees.

B. B. Rogers, for an annuitant.

THE VICE-CHANCELLOR held that there being in fact no residue, the gift of the legacies free of legacy duty to be paid out of the residuary estate failed pro tanto, and that the defendant Hughes and the other persons whose legacies were similarly given must bear the legacy duty thereon to the extent to which the estate was insufficient to provide for it.

By the minutes, after declarations to the above effect, it was declared that the legacy duty (which had been paid) ought to be deducted out of the interest on the same legacies now remaining unpaid, and that if such interest respectively should be insufficient to make good the respective amounts of such legacy duty the said several legatees ought to refund the amount of such deficiency respectively out of the capital of their legacies already paid to them.

Solicitors: Stephens & Langdale; Williams & James;

V.-C. H.

Needham.

Jan. 22.

TURTON v. Barber. Privilege-Bill of Costs-Facts ante litem motam. Matthew Tildesley brought in a claim in the cause for damage sustained by the testator's inability to grant a lease of certain mines. In his affidavit he deposed that in consequence of obstacles arising the lease was not granted. He was then asked on cross-examination before the special examiner "whether the obstacles were suggested by him to his solicitor, or by his solicitor to him," and he refused to answer the question, or to produce the bill of costs in respect of the same matter.

a statutory declaration made by a Mr. Hanson, with a document annexed, purporting to be a certified extract from a Register in which Mr. Hanson solemnly and sincerely declared that of Births (London and Middlesex), of the Society of Friends, Chalk was of the age mentioned; was born at Barking, Essex, and that the names of his parents were William and Elizabeth Chalk. He stated that the reason why he could not produce a copy of the parochial register of Chalk's birth or baptism was, that his parents having been members of the Society of Friends he was unable to procure any other record of birth or baptism than an extract from the Register of Births quarterly meeting of London and Middlesex, then deposited at the General Register Office, Rolls Buildings, which he believed to be true. That extract showed, inter alia, that on the 19th of November, 1779, there was born at Barking unto William and Elizabeth Chalk a son, who was named Thomas. On the 30th of December the Commissioners, relying on the representations made, granted the annuity applied for, and in March, 1844, they, relying on the annuity on the same life. The annuities were paid down to the same representations, granted for the sum paid to them another 5th of January, 1869. Thomas Chalk died on the 2nd of February, 1869. The company did not make any claim for any further payment, as they might have done after the death of Chalk; nor did they follow the usual course of giving notice of the death. The Commissioners discovered the death; and that the entry in the register at Kingston was that Chalk was at the time of death 82 years of age; that he was born at Brighton in 1786, and that his parents were Thomas and Sarah Chalk. The explanation in reference to the crrors not being satisfactory, the Commissioners instituted these proceedings for the purpose above mentioned, and for an account-alleging that they were entitled to be paid a further sum of 34251. 5s. 01.-and payment of what might be found due.

Hemming, for the Attorney-General and the plaintiffs. Southgate, Q.C., Dickinson, Q.C., and Kekewich, for the deferdant.

THE VICE-CHANCELLOR held that the plaintiffs were entitled to have the contracts set aside, and made a decree accordingly, with costs against the defendant.

Solicitors: Raven & Bradley; Solicitors to the Treasury; Dawes

& Son.

V.-C. H.

Jan. 27.

HORTON v. HALL. Chief Rent-Land not in Settlement ordered to be sold to pay Arrears-Cupit v. Jackson (13 Price, 721) followed. The plaintiffs were the trustees of William Harrison, who was entitled to a chief rent of 37. 10s., on a plot of land situate at Chorlton-upon-Medlock, Manchester, but subject to two overriding chief rents of 77. 16s. 11d. each. The chief rent (377. 10s.) had not been paid since 1852, and as the land had never been built upon the remedies by distress and entry, possession and receipt of the rents and profits, were valueless. The trustees, who in the meanwhile had had to pay the two chief rents of 7. 16s. 11d., filed their bill asking for an account of what was due to their testator's estate for the arrears, and for a sale of the land (subject to the chief rent of 37. 10s.) to pay the

same.

Birley, for the plaintiffs, referred to Cupit v. Jackson (13 Price, 721) and White v. James (No. 2) (26 Beav. 191).

Jolliffe, for defendant entitled to the land (or a part of the proceeds of sale) subject to the chief rent, submitted that only six years' arrears ought to be paid to the plaintiffs.

No one appeared for the other defendants.

THE VICE-CHANCELLOR after observing that he had declined to apply Cupit v. Jackson in the case of Taylor v. Taylor (ante, p. 11), the land in that case being in strict settlement, said he should follow it in this case, the land not being in settlement and made the order asked.

Solicitors: Milne, Riddle, & Mellor, agents for Slater, Heelis, & Co., Manchester; Bower & Cotton, agents for T. Southum, Man

Poor-rate-Rating of Branch Railway-Railway leased in perpetuity, but other Companies willing to take it on same Terms. The appellants are owners of the railway from Bletchley to Bedford, and thence to Cambridge, the two lines forming a continuous line and being worked as part of the London and North Western Railway system. The line from Bedford to Bletchley joins the appellants' main line at Bletchley. The line from Bedford to Cambridge joins the main line of the Great Northern Railway at Sandy, and joins at Cambridge the Hitchin branch of the Great Northern and the main line of the Great Eastern Railway. At Bedford the Bedford and Bletchley line crosses the main line of the Midland Railway upon the level, and for the purpose of goods traffic is connected with it.

The lines from Bletchley to Bedford, and thence to Cambridge, were originally made by independent companies, but became vested in the appellants under Acts of Parliament, the shareholders in either of the original companies becoming stockholders of the appellant company with a guarantee of 4 per cent. on certain sums calculated as the expense of making the respective lines.

If the line from Bletchley to Bedford and thence to Cambridge were now in the market, either of the above three companies would in consequence of the traffic which it would bring to their line be willing to acquire it upon the same terms as those upon which the appellants hold it.

In assessing the part of the line from Bletchley to Cambridge in the respondent parish, the respondents contended that the above circumstance must be taken into consideration in estimating the rateable value.

Graham, for the respondents.

Field, Q.C., and M. B. Byles, for the appellants.

THE COURT (Blackburn, Quain, and Archibald, JJ.) were of Jan. 26. opinion that the respondents' contention was correct, the amount not being before the Court.

Secured Creditor-Action on Bill of Exchange-Leave to defend given on depositing Money in Court-Reference to Arbitration -Bankruptcy of Defendant before Award-Rights of Trustee as to Money deposited-Bankruptcy Act, 1869, ss. 12, 16 (sub8. 5)-Bills of Exchange Act, 1855, s. 2.

Attorney for appellants: R. F. Roberts.

Attorneys for respondents: Shum, Crossman, & Crossman, for Turnley, Sharman, & Smail, Bedford.

This was an appeal from a decision of the judge of the Liver-Q. B. pool County Court.

Jan. 21

HARDING, APP.; HEADINGTON, RESP. Highway-Turnpike-Evasion of Toll-3 Geo. 4, c. 126, s. 41. By the General Turnpike Act (3 Geo. 4, c. 126), s. 41, if an person shall, with horse or carriage, go off or pass from any turn pike road through or over any land near to or adjoining theret (not being a public highway, and such person not being th owner or occupier, or servant, or one of the family of the owne or occupier of such land), with intent to evade the payment tolls; ... or if any person shall do any other act with intent evade tolls, whereby the same shall be evaded, every such perso shall forfeit a sum not exceeding 57.

On the 11th of July, 1873, an action was commenced by Tate & Co. against Keyworth & Co. upon a bill of exchange for 12007. accepted by Keyworth & Co. On the 22nd of July an order was made under the Bills of Exchange Act, 1855, that on payment into Court by the defendants of 880l. to abide the event, the defendants should be at liberty to appear and defend the action. The money was paid into Court the same day. On the 29th of July an order was made referring the matters in dispute to arbitration. On the 2nd of September, before any award had been made, Keyworth & Co. filed a liquidation petition. On the application of the trustee the judge of the county court restrained further proceedings in the arbitration, and declared that the 8801. belonged to the trustee for distribution among the cre-formed a road for a few yards over his farm with a gap into t ditors. Tate & Co. appealed.

Herschell, Q.C., and North, for the appellants.
Benjamin, Q.C., and Bigham, for the trustee.

THE CHIEF JUDGE decided that the appellants were creditors holding security on a part of the debtors' estate, and directed an inquiry as to the amount to which the appellants were entitled.

Solicitors: W. W. Wynne; J. H. Lydall,

The respondent being the occupier of a farm adjacent to turnpike road, made a gap in the hedge a few feet on one si of a toll gate, at which tolls were authorized to be taken, a

turnpike road a few feet on the other side of the gate. T respondent, with a horse and carriage, having passed more th 100 yards along the turnpike road, with the intention to avo paying the toll passed through one gap over the road on 1 own land and back again by the other gap into the turnpi road, and then passed more than 100 yards along the turnpi road. Justices having refused to convict the respondent in penalty under s. 41,

II. D. Greene, for the appellant,

Inclosure Act (8 & 9 Vict. c. 118), ss. 27, 33, 34, 48, 56, 75, 76, 77-
Provisional Order-Right of Lord to Common of Pasture-sold by the defendant at his repository by auction. The defen-
Claims unobjected to.

C. P.
FREETH AND ANOTHER v. Burr.
Jan. 14.
Cont act for Goods to be delivered at different Times-Effect of
Refusal to pay for the Part delivered.

The plaintiffs contracted with the defendant for the purchase of 250 tons of iron, by a bought-note in the following form:

"Nov. 28, 1871. Bought this day of Messrs. D. M. Burr & Co. two hundred and fifty tons of pig-iron @ fifty-six shillings per ton alongside our wharf, Millwall. Half to be delivered in two weeks, remainder in four weeks. Payment, net cash 14 days after delivery of each parcel. (Signed) S. Freeth & Co."

In consequence of the difficulty of procuring iron, the first 125 tons were delivered in small quantities, and the delivery of that parcel was not completed until the month of May, 1872. The defendant fourteen days after the delivery of these 125 tons claimed to be paid the agreed price; but the plaintiffs (erroneously supposing that they were entitled to set-off differences which they had been obliged to pay on procuring other iron at an advanced price in the market) refused to pay for the first 125