Q. B.

locus in quo.

Common Law.

Jan. 27.

CAPE v. SCOTT. Common pur Cause de Vicinage-Distress-Damage feasant. Replevin for taking twenty sheep on certain land (which was set out by abuttals) and detaining them. Avowry, that the taking was for a distress damage feasant, the defendant having a right of common of pasture over the Plea, that the land was a common, hereinafter called Caldbeck Common, forming part of the common and waste lands of the manor of Caldbeck, and by and from time immemorial had lain contiguous to a common hereinafter called Uldale Common, forming part of the common and waste land of the manor of Uldale, and had never been divided or separated from the last inentioned common by any hedge or fence whatsoever sufficient to prevent cattle from time to time feeding on either common going or escaping on to the other common; that from time immemorial the cattle duly put on either' of the commons in exercise of rights of common over such common have gone and escaped, and been accustomed to go and escape on to the other common, and there to intermix with and feed with the cattle from time to time feeding on such other common; that the plaintiff is possessed of a messuage and lands in the parish of Uldale, the occupiers of which for thirty years before this suit enjoyed as of right and without interruption common of pasture over Uldale Common for all their cattle levant and couchant upon the land of the plaintiff at all times of the year as to the land of the plaintiff appertaining; that being in possession of such messuage and land as aforesaid just before the time when, &c., he put the sheep, being his own sheep levant and couchant, upon the land of the plaintiff upon Uldale Common in exercise of his right of common, and the sheep of the plaintiff afterwards, and just before the time when, &c., of their own accord and without the knowledge and consent of the plaintiff, went and escaped out of Uldale Common on to Caldbeck Common and intermixed and fed with the cattle then and there feeding on

Caldbeck Common.

Demurrer and joinder in demurrer. Bompas, in support of the demurrer, contended that the replication was bad, inasmuch as one commoner cannot distrain the cattle of another commoner.

Crompton, contrà, contended that the right of common was in respect of a common pur cause de vicinage, which was a mere excuse for a trespass, and that the cattle were therefore rightly distrained. THE COURT (Blackburn, Quain, and Archibald, JJ.) held the replication bad, for cattle on the one common may well stray and go on the other common without being distrained. Attorneys for plaintiff: Bischoff, Bompas, & Bischoff. Attorneys for defendant: Sharp & Ullithorne.

Q. B.

THE QUEEN v. SUTTON COALFIELD. Jan. 28. Quarter Sessions, Appeal from—Case reserved on a Preliminary Point.

On an appeal against a poor-rate to the quarter sessions the Bessions granted an application to enter and respite the appeal, subject to a case for the opinion of the Court on a preliminary point. Jan. 17. Hill, Q.C., and Soden, for the prosecution. Wills, Q.C., and Dugdale, for the defendants.

Jan. 28. THE COURT (Blackburn and Quain, JJ.) declined to take cognizance of the facts stated in the case, or to give any opinion on the questions reserved, the quarter sessions not having made an order either confirming or reversing the decision appealed against.

Attorney for prosecution: R. F. Roberts.
Attorneys for the defendant: Beal & Co.

Q. B.

Jan. 28.

SEARLE V. LAVERICK. Bailee for Hire-Livery-stable Keeper, Liability of, for Care of Carriage of Customer-Fall of Coachhouse.

The plaintiff brought his horses and two carriages to the defendant, a livery-stable keeper; the carriages were placed under a shed on the defendant's premises, a charge being made by defendant for them. This shed had just been erected, the upper part being still in the hands of workmen. The defendant contractor and not as defendant's servant, and he was a comhad employed a builder to erect the shed, as an independent petent and proper person so to employ. The shed fell down (the defendant being ignorant of any defect) and the plaintiff's carriages were injured, upon which he brought an action to recover damages from the defendant for the injury. counsel proposed to prove that owing to the neglect of the At the trial, in addition to the above facts, the plaintiff's builder and his workmen the building had been unskilfully built, and that this was the cause of the fall. The learned judge refused to receive the evidence, and nonsuited the plaintiff, ruling that "the defendant's liability was that of an ordinary bailee for hire, and he was only bound to take ordinary had exercised in the employment of the builder such care as an care in the keeping of the plaintiff's carriages, and that if he ordinary careful man would use, he was not liable for damage caused by the carelessness of the builder of which he (the defendant) had no notice."

Holker, Q.C., and Shield, for defendant.

C. Russell, Q.C., and Lewers, for plaintiff.

taken to consider, held the nonsuit right, being of opinion that THE COURT (Blackburn, Mellor, and Lush, JJ.), after time the case came within the second branch of the fifth sort of bailments mentioned by Holt, C.J., in Coggs v. Bernard (2 Ld. Raym. at p. 918), viz. a delivery to carry or otherwise manage for hire, to a person not exercising any public employment; and that no warranty or obligation ought to be implied against the defendant beyond that expressed in the ruling of the judge.

Attorney for plaintiff: John Scott, for Graham & Graham, Sunderland.

Robson, Sunderland.
Attorneys for defendant: Bell, Brodrick, & Bell, for W. W.

Practice-Security for Costs-Plaintiff resident in Scotland— 31 32 Vict. c. 54.

The plaintiff, who was resident in Scotland, brought an action against the defendant. The defendant moved for a rule calling on the plaintiff to shew cause why all proceedings should not be stayed until the plaintiff shall have given security for costs. Lanyon, for the defendant.

THE COURT (Blackburn, Quain, and Archibald, JJ.) refused the rule, stating that the reason why a plaintiff resident abroad or in Scotland or Ireland was required to give security for costs was, that if a verdict be given against the plaintiff he was not within the reach of the law, so as to have process served upon him for costs, but since the passing of 31 & 32 Vict. c. 54, where a judgment has been obtained in England a certificate thereof registered in Scotland has the effect of a decreet of the Court of Sessions, and process would be issued on that certificate; the defendant having therefore a remedy for his costs, he is no longer entitled to have security for costs. Attorneys for defendant: Holland, Son, & Co.

Selhurst," and then the train stopped. Hearing the noise of the opening and shutting of doors, the plaintiff concluded he had arrived at his destination, and stepped out of the second carriage from the engine; but instead of alighting upon the platform, he fell a depth of 4 feet on to the embankment-the train having overshot the platform. There was no evidence that the driver backed or intended to back the train; and others had got out of the train before him.

Upon this evidence, Bovill, C.J., nonsuited the plaintiff; ruling that there was no evidence of negligence in the company's servants to go to the jury; but he reserved leave to the plaintiff to move to enter a verdict for 1007. (agreed damages), the Court to be at liberty to draw inferences both as to negligence by the defendants and want of reasonable care of the plaintiff.

D. Seymour, Q.C., Willis, and Hilbery, for the plaintiff.
Lopes, Q.C., and Joyce, for the defendants.

THE COURT made a rule absolute, holding that there was evidence which would justify a jury in finding negligence on the part of the company, and no contributory negligence on the part of the plaintiff.

Attorney for plaintiff: Henry Aird. '
Attorneys for defendant: Barter & Co.

Election Petition-Dissolution of Parliament-Return of
Deposit.

This was a petition against the return of respondent as a member of Parliament for the city of Exeter. A dissolution of Parliament having taken place before the hearing of the petition it was contended on behalf of the petitioner that the petition thereby abated, and application was made on his behalf for a return of the deposit.

Chandos Leigh, for the petitioner.
Petheram, for the respondent.

THE COURT (Coleridge, C.J., Keating and Denman, JJ.) were of opinion that by the dissolution of Parliament the petition abated, and granted the application.

Application granted.

Attorneys for the petitioner: Hoskins & Wyatt. Attorney for the respondent: Philbrick.

Agreement for Assignment of Tenancy-Parcels-Falsa demonstratio-Liquidated Damages-Penalty. *Declaration for breach of an agreement between the plaintiff and defendant, whereby the plaintiff agreed to sell and the defendant to buy the interest, goodwill, &c., of the plaintiff in a certain public-house called the White Hart.

Breach: refusal by the defendant to carry out the agreement. Plea: that the plaintiff was not able to give the defendant on the day fixed for completion possession of a certain part of the premises included in the agreement.

Issue.

At the trial, which took place before Honyman, J., at the sittings during Trinity Term, the facts were as follows:

The subject matter of the agreement, which was in writing, was "house and premises he now occupies known by the sign of the White Hart, with stabling and garden." It provided for the purchase by the defendant of certain stock on the premises, and that the plaintiff should discharge all rates, taxes, &c., growing due up to the time fixed for completion under the agreement, and concluded, "if either party shall refuse or neglect to perform all and every part of this agreement, they hereby promise and agree to pay to the other who shall be willing to complete the same, the sum of 1001. as damages, and recoverable in any of Her Majesty's courts of law."

There was a coach-house connected with the White Hart, which was not in the occupation of the plaintiff at the time of making the agreement, but was occupied by one Samson as tenant to the plaintiff, and of which the tenancy not being determined at the time fixed for completion under the agreement, the plaintiff could not give the defendant possession at such time. The verdict was entered on these facts for the plaintiff for 1007., the sum mentioned in the contract, leave being reserved to enter it for the defendant, or to reduce the damages to 307., the sum found by the jury to be the actual damage sustained by the plaintiff. A rule nisi had been accordingly obtained, against which M. Chambers, Q.C., and McMahon, shewed cause. Murphy and Bray supported the rule.

THE COURT (Coleridge, C.J., Keating and Denman, JJ.) held that the true construction of the contract was that the words "he now occupies" were not falsa demonstratio, but an essential part of the description of the subject matter, and therefore that the plaintiff was in a condition to perform his contract and so entitled to recover against the defendant, but that the 1007. mentioned in the contract was a penalty and not liquidated damages, and therefore the damages must be reduced to 307. Rule absolute accordingly.

Attorneys for plaintiff: Cox & Sons.
Attorney for defendant: Murrough.

Debtors Act, 1869, s. 5—Judge's Order for Payment of Judgment Debt by Instalments-Bankruptcy Act, 1869, s. 126-Composition, Default in Payment of—-Revival of Creditor's Original Rights-Application for Committal of Debtor.

In this case the plaintiff had recovered judgment for a debt against the defendant, and a judge's order was subsequently made against the defendant under the Debtors Act, 1869, for payment of the debt by instalments. Some of the instalments having been paid, but others not being yet due, the defendant commenced proceedings for the purpose of effecting a composition under the Bankruptcy Act, 1869, and a resolution was passed by his creditors accepting a composition upon his debts. The defendant made default in payment of the composition to the plaintiff, who thereupon applied to a judge at chambers under the 5th section of the Debtors Act, 1869, for an order for the committal of the defendant for non-compliance with the former judge's order for payment of the debt by instalments. The judge referred the matter to the Court.

A rule nisi had been obtained for the committal of the defendant, against which

Croome shewed cause.

F. M. White supported the rule.

THE COURT (Coleridge, C.J., Keating, Brett, and Denman, JJ.) held that the true construction of the Bankruptcy Act, 1869, was that on default in payment of the composition, the creditor was remitted to his original position, and that consequently the order of the judge at chambers was a subsisting order, and might now be enforced by committal of the defendant. Rule absolute.

Attorneys for plaintiff: Jones, Arkcoll, & Jones.
Attorney for defendant: Brown.

before referred to stood limited by virtue of the marriage settlement of St. John Charlton, made in 1820, to W. Charlton, the father of St. John Charlton, for life, with remainder to St. John Charlton for life, with remainder to his first and other sons successively in tail male, with remainders over.

St. John William Charlton was the eldest son, and Thomas Charlton was the second son of St. John Charlton.

In March, 1854, St. John Charlton and his eldest son joined in barring the entail of the Shropshire estates, and conveyed a part of them, called Oakingates, to St. John Charlton in fee, and re-settled the rest to such uses as St. John Charlton and St. John William Charlton should jointly appoint, and subject thereto, to the use of St. John Charlton for life, with remainder to St. John William Charlton for life, with remainder to the use of his first and other sons successively in tail male, with remainder to such uses as St. John Charlton and Thomas Charlton should appoint, with remainder to the use of Thomas Charlton for life, with remainder to his first and other sons successively in tail male, with remainders over.

St. John William Charlton died in 1864 without issue, and in 1866 St. John Charlton and T. Charlton resettled the Shropshire estate, subject to St. John Charlton's life estate, giving them to T. Charlton's eldest daughter with divers remainders over until the entail of the Pembrokeshire estates should be barred, and then to T. Charlton for life, with remainders over. St. John Charlton died in 1873.

The bill was filed by William Meyrick and his oldest son for the administration of the estates of Thomas Meyrick, the testator, and the question which now came before the Court for its decision was, whether the shifting clause contained in his will took effect on the death of St. John Charlton, or whether it had become inoperative by reason of the re-settlement of the Shropshire estates.

Southgate, Q.C., Jackson, Q.C., and Rowcliffe, for the plaintiffs. Fry, Q.C., G. S. Law, Rawlinson, and Spencer Butler, for the defendants.

THE LORD CHANCELLOR said that the clear meaning of the shifting clause was that it should take effect only on T. Charlton or his issue becoming entitled under the marriage settlement of St. John Charlton. But in the events that had happened he had not become entitled to the estates under that settlement, for a new and different estate had been created, and moreover, some part of the property had been removed out of the settlement entirely. He was therefore of opinion that the shifting clause could not now take effect, and that the plaintiffs had no title to the Pembrokeshire estates.

THE LORDS JUSTICES JAMES and MELLISH concurred.
Solicitors for the plaintiffs: Gregory, Rowcliffes, & Rawle.
Solicitors for the defendants: Law, Hussey, & Hulbert.

Will-Shifting Clause-Re-settlement of the Estate. This cause was heard in the first instance by the Court of Appeal by special leave.

Thomas Meyrick, by his will, dated the 11th of May, 1837, gave his Pembrokeshire estates to trustees upon trust for Thomas Charlton for life, with remainder to his first and other sons successively in tail male; and in default of such issue in trust for the plaintiff William Meyrick for life, with remainder to his first and other sons successively in tail male, with remainders over. And the testator declared that if T. Charlton or his issue male should become seised or entitled in possession to the estates settled on the marriage of St. John Charlton, in the county of Salop, then the trust of the testator's real estates in favour of T. Charlton and his issue male should absolutely cease, for the benefit of the person next entitled in remainder, in the same way as if T. Charlton were then dead without issue male.

At the time of the testator's death the Shropshire estates No. 5.-1874.

This was an application to transfer the suit of Lyall v. Weldhen from the Court of the Master of the Rolls to the Court of the Vice-Chancellor Hall, in which a previous suit relating to the same matter was existing.

Greene, Q.C., and Methold, in support of the application. Nalder, for the respondent, only objected to pay the costs. THEIR LORDSHIPS said that if the respondent had opposed he would probably have had to pay the costs. But here he did not oppose, and if any previous application had been made to him he would probably have consented. The notice of motion was, however, first sent, in answer to which he offered to consent if the costs were made costs in the cause. This offer was refused. The costs up to the time of that offer would be costs in the cause; and the plaintiffs in the first suit must pay the subsequent

costs of the transfer.

Solicitors: H. Fluker; Wood, Street, & Hayter.