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Feb. 9. contracts and other documents, without which he could not Practice-Infunt Plaintiff - Death of Next Friend-Appointment recover his money. Knowing that such was the case, and reof New Next Friend.
lying upon his assurance, Messrs. Sympson & Warner gave him This suit was instituted on behalf of Algernon Charles
the time he required, and there was now due to them upon such
costs not less than 20001. Messrs. Sympson & Warner now had Talbot, an infant, by Mary Matilda Talbot, widow, his mother and
in their possession, upon which they claimed a lien, a contract next friend. Messrs. Frere & Co. were the plaintiff's solicitors.
dated the 12th of March, 1869, between Mr. Dowson and the On the 1st of January, 1874, Mrs. Talbot died. At the time
Hunstanton Pier Company which was deposited with them by of her death the nearest paternal relatives of the infant were
Mr. Dowson in his lifetime, and also certain bonds and shares his grandfather, an uncle, and an aunt, all of whom were desirous that Mr. Hervey Talbot, the infant's paternal uncle, should be
and certificates in the Hunstanton Pier Company, which were
handed to them, subsequently to the death of Mr. Dowson, in the new next friend of the infant. On the 7th of January, 1874, a petition was presented at the
due course on the completion of the contract. Some of these bonds
and shares had been sold, and produced altogether about 3321. Rolls in the name of the infant plaintiff by Hervey Talbot, his next friend, alleging that the plaintiff was desirous of changing
Mr. Dowson died on the 7th of December, 1869, intestate,
Es leaving his affairs in a very embarrassed state; and he was at his solicitors, and appointing Messrs. Nicholson & Herbert, his solicitors in the place of Messrs. Frere & Co.; and on the same
the time of his death largely indebted. The suit in which the day the common order of course was made on the petition, that
summons was taken out was instituted against his personal the plaintiff be at liberty to change his solicitors, by appointing
representative for the administration of his estate. Messrs. Nicholson & Herbert his solicitors accordingly.
Glasse, Q.C., and Graham Hastings, for Messrs. Sympson & On the same day another order of course was made upon a
Warner, contended that the solicitors had a lien upon the consimilar petition appointing Mr. Hervey Talbot the next new
tract for their costs, and that it was deposited with them by friend of the infant in the suit.
way of equitable charge, which gave them a right to all payments Neither of these orders was supported by any evidence.
made by the Pier Company in respect thereof. A motion was now made that these orders might be discharged,
Cotton, Q.C., and Simmonds, for creditors of the testator, conand that the Earl of Shrewsbury, who had (along with Mr. Frere) |
ca; tended that the transaction did not amount to an equitable debeen named as guardian of the infant by Mrs. Talbot's will,
posit, and that a solicitor's lien upon the contract could give and was guardian ad litem of two infant defendants, might be
them no right to payments made after the death of the intestate, approved as new next friend.
as they were then acting on behalf of the administrator. Fry, Q.C., and Cookson, for the motion, contended that the
THE VICE-CHANCELLOR said it was admitted that the stateorders were irregular, first, because the solicitor on the record
ment of the circumstances under which the contract came into had the privilege of selecting the new next friend; secondly,
the hands of Messrs. Sympson & Warner was substantially corbecause the second order of the 7th of January ought to have
rect. In his opinion the transaction amounted to an equitable been made on evidence of the fitness of the new next friend; and
charge, and the solicitors were authorized to retain the docuthey also submitted on the evidence that Mr. Hervey Talbot was
ments, and were entitled to an equitable charge upon all moneys an improper person to be next friend.
received in respect of those documents for the amount of the Colquhoun, for the Earl of Shrewsbury, submitted to act as the
costs due to them. The costs of both parties would come out of Court might direct.
the estate. Southgate, Q.C., and Kekewich, for Hervey Talbot.
Solicitors : Sympson & Warner; J. M. Green. THE MASTER OF THE ROLLS held that the paternal relatives were entitled to intervene and select the new next friend; that v.-C. M.
Feb. 9. by the practice of the Court (as to which he had made personal BRISTOL AND NORTH SOMERSET RAILWAY COMPANY v. SOMERSET inquiry), it was not necessary in such cases to adduce evidence
AND DORSET RAILWAY COMPANY. of the fitness of the new next friend; and that there was not any
Notice to Treat for Land constitutes Equitable Ownership. foundation in fact for the allegation that Hervey Talbot was not a proper person to be next friend; and refused the motion with
This was a motion on behalf of the plaintiffs for an injunction
to restrain the defendants from constructing a railway or tramcosts. Solicitors: Frere & Co.; Nicholson & Herbert ; Parkin &
way on, or continging in possession of, a piece of land near Pagden.
Radstock, in the county of Somerset.
The plaintiffs' railway ran from Radstock to Bristol, and the
defendants' railway ran from Radstock to Bath, each railway V.-C. M. Rasch v. Dowson.
having a station at Radstock. The plaintiffs obtained their Act
of Parliament in the session of 1870, under which they had the Solicitor's Lien upon Documents - Equitable Deposit.
usual compulsory powers of taking land. The defendants This was an adjourned sommons by which a declaration was obtained their Act in August, 1871, by which they acquired sought that Messsrs. Sympson & Warner, solicitors, had a lien certain powers over the same land for the purpose of constructupon certain securities deposited with them under the following ing their station and works; but the Act contained a clause circumstances :
restricting them from taking any more land of the Bristol and Messrs. Sympson & Warner acted as solicitors for Mr. J. E. Somerset Railway Company than that which was necessary for Dowson for about seventeen years previously to his death. Mr. the purpose of effecting a certain junction and crossing therein Dowson was a contractor largely engaged in the erection of designated. In June, 1871, the plaintiffs, under the powers of public works, and constantly required the services of his solici- their Act, served a notice to treat in respect of the small piece tors in the preparation of his contracts and the business re- of land now in question, upon Lady aldegrave, who was the lating thereto, and also in frequent litigation in respect of such owner thereof. The defendants had taken possession of the contracts, and in general law business.
same piece of land for the purposes of their railway, and the Mr. Dowson rarely, if ever, paid anything on account of the questions now raised were-first, whether by the notice to treat costs incurred during such litigation, and when Messrs. Sympson the plaintiffs had acquired a right to the land; and, secondly, & Warner sometimes pressed him upon the subject of their pay- whether this land was necessary to the defendants for the conment, Mr. Dowson replied that he was in the midst of heavy struction of their railway. contracts which required the whole of his money, and that upon Cotton, Q.C., and Kekewich, for the plaintiffs. the completion of such contracts he would be in a position to Speed and Langley, for the defendants. pay what was due, and that they had security in the various THE VICE-CHANCELLOR was of opinion that the effect of the notice to treat was to make the plaintiffs as between themselves and Thomas that the business should not be carried on upon and the landowner the owners of the land. An obligation was the premises, and that he prepared the underlease accordingly. constituted by the notice to treat which neither party could get That carried the matter no further. He further deposed that rid of, the one to take and the other to give up the land speci- on the day before Thomas's death, Thomas read the draft fied in the notice. The company thereby became the equitable through, and when he came to the restrictive covenant, he said, owners of the land, and had a right to take possession as soon as “Oh, this is the part, is it; well, I don't see any objection to they had settled with the owner as to the price. He also con- that." That, in His Honour's view, did not amount to an sidered upon the evidence that this piece of land was not neces- agreement. It would have been open to Thomas after that to sary to the defendants for the purpose of effecting the construction have said he had changed his mind, and that he relied on the of their junction, as there were other lands within their limits of Statute of Frauds. If the intestate could not be bound, it was deviation which they could make use of for the purpose. The impossible that his representative could be bound. If the Court injanction must therefore be granted.
were to allow the plaintiff to establish his case upon his own Solicitors : Frere & Co.; W. Toogood.
sole evidence it would be exactly encountering the danger which the Statute of Frauds was passed to prevent_namely, that of,
amongst others, post mortem claims of this description. There V.-C. B. SNELLING v. THOMAS.
Jan. 24. must be a decree that the defendant having submitted by his Specific Performance - Written Agreement - Parol Variation - | answer specifically to perform the written agreement of the 6th Claim against Representative of One of the contracting Parties.
of July, 1870, and to accept an underlease in strict accordance
with the terms of such agreement, the bill be dismissed with Six houses in the Old Kent Road were leased for 88 years
Jan. 29. he became entitled to have leases of them, with an option of Mortgage-Creditors' Suit by Mortgagees—Deficient Estate-Costs. purchasing the whole. In March, 1870, Snelling agreed to This was a creditors' suit by legal mortgagees of a testator let No. 737 to George Sowman, who afterwards agreed to cove- for a sale of the mortgaged property, and general administration nant not to carry on there the business of a grocer or cheese- of the testator's real and personal estate. monger. On the same day Snelling agreed to let No. 735 to On the 10th of December, 1873, a decree was taken establishAlbert Carter, a grocer and cheesemonger, and agreed not to let ing the will, directing an account of what was due to plaintiffs either of the other five houses to be used for a similar trade. for principal, interest, and costs of suit, including the costs of In June, 1870, Snelling agreed with George Thomas to sell to the account and consequent on the sale thereafter directed; an him his interest in the houses numbered 737 and 739 for 10001., account of rents and profits of the mortgaged premises received and on the 6th of July, 1870, an agreement was signed by the by plaintiffs, or which, without wilful default, might have been two parties, whereby it was stipulated that the two houses received, deducting what should appear to be due on such should be sold subject to the "existing tenancies ;" but the agree-account of rents or profits from what appeared to be due to ment said nothing about restrictive covenants-only that the plaintiffs for principal, interest, and costs. Lands comprised in underlease to the purchaser should contain covenants similar to plaintiffs' mortgage to be sold with the approbation of the judge, those in the original lease. A draft underlease was prepared and and the money to arise by such sale to be paid into Court," and engrossed for the purpose of carrying out the agreement, which that thereout, on an application in chambers, what should be engrossment did contain a restrictive covenant; but it was not certified to be due to plaintiffs be paid to them, but in case the executed before the death of Thomas, which took place suddenly money to arise by the said sale shall be insufficient to discharge on the 11th of August, 1870. In September following, the ad- the said amount to be so certified to be due to plaintiffs, then the ministrator of Thomas, who died intestate, put the benefit of the whole thereof is, on an application to be made at chambers, to be contract of the 6th of July, 1870, together with other property, up paid to them," in case such moneys should be insufficient to pay for sale, but no sale was effected, and afterwards in November the the amount due to plaintiffs, they were declared entitled to come in administrator received the draft of an underlease to himself, in with the other special creditors of testator, and receive satisfacwhich was inserted a restrictive covenant, to which he refused tion for such deficiency out of testator's assets in a due course of to accede. Snelling alleged a verbal agreement between the administration, with the usual accounts and inquiries for that intestate and himself, that the agreement of the 6th of July, purpose. Further consideration and costs adjourned. 1870, should be varied by the insertion of such a covenant, and The whole estate was supposed to be insufficient for payment referred to the engrossment of August, 1870, as evidence of the of the mortgage debt and the costs of suit, and the minutes fact, but the administrator refused to execute.
having been drawn by the registrar in the form above stated, so The bill was filed by Snelling against Thomas, the administra- as to provide for payment of plaintiffs' debt, interest, and costs tor, praying for specific performance of the agreement of the 6th of suit" on an application in chambers” out of the proceeds of of Jaly, 1870, the plaintiff submitting to perform the same so sale of the mortgaged property in the first instance. The defenfar as it remained unperformed; and for a declaration that the dant, one of the devisees, now moved to vary the minutes as intestate and the defendant had accepted the plaintiff's title, and drawn up, by providing for taxation of the costs of defendants bad approved the form of lease as engrossed ; and for other con-(the executors and devisees), and by substituting the following sequential relief.
order: “ That in case the money so paid into Court shall be Eddis, Q.C., and Sturges, for the plaintiff.
sufficient to satisfy the said taxed costs of defendants, together Kay, Q.C., and W. Pearson, for the defendant.
with the amount which shall be certified to be due to plaintiffs, Eddis, in reply.
such amount be thereout, on application in chambers, paid to THE VICE-CHANCELLOR Observed that the plaintiff's case rested them, and the costs so taxed to the respective parties or their on his own evidence alone. The solicitor who took down the solicitors, but in case the money to arise by the said sale shall terms of the contract, and afterwards prepared the agreement of be insufficient to satisfy the said costs together with the said the 6th of July, 1870, stated that nothing was said on that occa- amount, then that the said costs be in the first instance paid sion about a restrictive covenant. He further said that when he thereout to the respective parties or their solicitors, and the was asked to draw the underlease the plaintiff, Snelling, told him residue on an application to be made in chambers, be paid to of a verbal agreement which had been come to between himself plaintiffs."
Staffurth, in support of the motion, cited Armstrong v. Storer | various sums of money exceeding 501, which he had kept in his (14 Beav. 535) and Re Spensley's Estate (Law Rep. 15 Eq. 16), hands for more than ten days, on the ground that he ought, as authorities that where a legal mortgagee files a bill for a sale according to section 30 of the Act, to have paid all the moneys (and not foreclosure) and general administration of the deceased which he received into the Bank of England. mortgagor's estate, the costs will follow the usual rule in admi-l Old appealed. nistration suits, and that if the assets are deficient the costs of Roxburgh, Q.C., and G. W. Lawrance, for the appellant. the suit (including the costs of the mortgagor's personal repre De Gex, Q.C., and Finlay Knight, for the inspector. sentatives) will be paid in priority to plaintiff's costs of sale. THE CHIEF JUDGE held that the creditors had sufficiently
T. A. Roberts, for plaintiffs, cited Cook v. Hart (Law Rep. prescribed, under s. 125, sub-8. 8, the bank into which the money 12 Eq. 459).
was to be paid, and therefore that the trustee could not be THE VICE-CHANCELLOR declined to vary the minutes, and charged with interest. He must, however, bear his own costs of refused the motion, with.costs.
the application, inasmuch as he had been guilty of neglect in Solicitors : Smith, Fawdon, & Low; 11. G. Field, for Under not having his accounts audited every three months as required hills, Wolverhampton.
by s. 20 of the Act, the provisions of which, his Lordship thought, apply to liquidation just as to bankruptcy.
Solicitors: Norris, Allens, & Carter; Vizard, Crowder, & Co. V.-C. B. WOODFORD v. BROOKING.
Feb. 10. Mortgage-Foreclosure Suit-Sale-Absent Mortgagor.
BANKRUPTCY. Ex parte LOVERING.
Feb. 9. Kay, Q.C. (Grosvenor Woods with him), applied on behalf of
In re PEACOCK. certain of the defendants, who were third mortgagees, that instead of the foreclosure directed by the decree made in this
Execution Creditor-Trader Debtor-Debt under 501,- Prior Excesuit an order might be made for sale.
cution for Debt above 501.-Liquidation Petition-Bankruptcy The application was made with the consent of the plaintiffs,
Act, 1869, ss. 6 (sub-s. 6), 13, 87., who were second mortgagees, and the first mortgagees (defen On the 25th of November an execation was levied on the goods dants), and the only difficulty that arose was, that the mortgagor, of Peacock, a trader, for a debt of 1911. 4s. 6d., and on the 16th against whom the decree had been taken pro confesso, was absent of December another execution was levied for 321. 178. 3d. On out of the jurisdiction, and therefore had not consented to a sale the 30th of December Peacock filed a liquidation petition. At in place of a foreclosure.
this time no sale had been made by the sheriff. A receiver was THE VICE-CHANCELLOR, as the order for a foreclosure had not appointed, and he,on the 8th of January, obtained an interim order yet been drawn up, allowed the order to be drawn up for sale restraining the proceedings of both the execution creditors. On instead of foreclosure.
the 22nd of January a trustee was appointed. He applied to Solicitors : West & King.
the Court for an order directing the sheriff to withdraw, and
Shortt, for the trustee.
Feb 9 / J. Rose, for the second execution creditor.
THE CHIEF JUDGE held that the second creditor was entitled Liquidation-Duties of Trustee-Retention of Moneys in his Hands to proceed to a sale. -Direction of Creditors as to Bank into which Money is to be
Solicitors: Fallows & Whitehead ; . Smith. paid - Audit of Trustee's Accounts-Bankruptcy Act, 1869, ss. 20, 30, 55, 125 (sub-ss. 7, 8, 9)-Bankruptcy Rules, 1870, r. 109.
This was an appeal from a decision of the judge of the Neath County Court.
On the 5th of November, 1870, Joseph Bright filed a liquidation petition. On the 21st of November, Charles Old was ap
LORD v. PRICE.
Jan. 30. pointed trustee, and William Randall was appointed inspector. Old was the manager of the Neath Branch of the Provincial Banking Corporation (Limited), who were creditors of Bright. Action of trover tried in the Passage Court at Liverpool. After his appointment as trustee he stated to the creditors at The plaintiff was the buyer of some bales of cotton damaged the first meeting, that he should open an account in his own by fire; the defendant had bought others bales out of the same name as trustee with the bank, to which he should pay all lots, and had taken away the plaintiff's bales, mistaking them for moneys which he received on account of the estate. The credi- | his own. The cotton was sold under conditions by which a tors assented to this course, but no formal resolution approving deposit was to be paid at the time of the sale, and the balance of it was passed. The account was opened, and the money (less discount) immediately after, and before delivery of the received by Old was paid to it accordingly. There was con- cotton. siderable delay in realising the estate, partly in consequence of The plaintiff bad not paid the balance of his purchase-money, difficulty in recovering a debt due from a person in Antigua and the defence raised was that he was, therefore, unable to sue The accounts of the trustee were never audited by the inspec- in trover, as he had not the right of present possession, the seller tor. He never applied to the trustee for that purpose. On the having a lien for the unpaid purchase-money. The learned as24th of January, 1873, a meeting of the creditors, summoned by sessor nonsuited the plaintiff, with leave to move the Court of the trustee, was held. He presented an account which shewed Exchequer for a new trial, and a rule having been obtained, that he had at the bank & balance of 2221, on account of the Gully, shewed cause. estate. The creditors resolved that no immediate dividend Myburgh, supported the rule. should be paid ; that a further attempt should be made to THE COURT (Bramwell and Amphlett, BB.) discharged the recover the Antigua debt; and that the 2221, should meanwhile rule on the ground stated above, holding that the plaintiff's bo transferred to a deposit account. On the 22nd of December remedy (if any) was to sue in the seller's name. the judge, on the application of the inspector, ordered trat Old Attorneys for plaintiff : Lowndes & Co., Liverpool. should pay interest at the rate of 20 per cent. per annum on the Attorney for defendant: Lupton, Liverpool.
TABLE OF CASES.
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 TAE LAW REPORTS.
and Bill - Local Board of Health - Drainage into River-In-
L. C. & L. JJ.
Feb. 12. BARNES V. ADDY (New Trustees - Appointment of Sole Truslee
ATTORNEY-GENERAL V. CORPORATION OF BARNSLEY. Breach of Trust-Liability of Solicitor) L. C. & L. JJ. 38 CHAPMAN T. CAAPMAN (Practice-Payment out of Court-Pay
Information and Bill- Local Board of Health-Drainage into ment to Representative of Deceased Person-Chancery Funds
River - Increasing Nuisance--Injunction. Rules, 1872, r. 22). . . . . . M. R. 39 This was an appeal from an order of Vice-Chancellor Hall (see DE LISLE v. HODGES (Power of Appointment — Trust Funds in Weekly Notes, 1873, p. 228). vested in Consols and on Mortgage-- Appointment of Specified
The information and bill was filed on the relation of Earl Sums of Consols" or other the Stocks," &c., to Appointees Fitzwilliam and others, and by the same persons as plaintiffs on named, and of the residue to C.-Insufficient Funds--Rateable
behalf of themselves and all other owners and occupiers of land Distribution amongst Appointees exclusive of C.). V.-C. H. 41
on the banks of the river Dearne, below Hoyle Mill, in the townHERTFORDSHIRE BREWERY COMPANY, In re (Company-Winding ship of Ardsley, in the parish of Darfield, Yorkshire, against the
up Order - Memorandum signed by Infant-Companies Act, Corporation of Barnsley, for an injunction to restrain them from 1862, s. 199) . . . . .
. M. R. 38 HERVEY 0. HERVEY (Wil— Construction-Estate for Life or in
continuing, after a day to be appointed, to permit the discharge
into the river of any sewage or other noxious or offensive matter Tail-Rule in Shelley's Case) . . . . V.-C. H. 41
from the borough or any works within it, either by the existing IZARD, Ex parte. In re Cook (Bankruptcy-Assignment of all
main sewer or by any other channel under their control. Debtor 8 Property-Previous Agreement to give an Assignment
In 1853 the Public Health Act, 1818, was applied to Barnsley. on Demand) . . . . . .
L. JJ. 38 JAMES 0. THE QUEEN (Forest of Dean-Free Miners-Applica
The borough was incorporated in 1869, and the corporation tion for Gales - Right of Representatives) .
became the local board of health .
3 V.-C. M.
In 1862 the local board adopted a system of drainage for KELSEY v. KELSEY (Annuity charged on Land - Annuity in arrear
draining their district into the river Dearne, which was not a --Receiver) . . . . . . . V.-C. M. 39 Lore, Ex parte. In re JAGGER (Bankruptcy Petition founded on
public river, and certain sewers were constructed, which received Debtor's Summons-Promise by Debtor to pay - Petition dis
the contents of other sewers and discharged the same into the missed for want of Prosecution-Default of Debtor - Special
river at Hoyle Mill. The corporation had continued the same leare given to file a new Petition-Echaustion of act of Bank
system of drainage; and in consequence of what had been done ruptcy-Bankruptcy Rules, 1870, r. 39). . Bykcy. 42 the river had become, as far down as Wath-upon-Dearne, so much ROBINS . Rose (Will-Life Estate - Forfeiture Clause-Bank
polluted that the water was unfit for domestic and many other ruptcy-Personal Enjoyment) . . . V.-C. B. 40 purposes to which it used formerly to be applied. The plaintiffs RTSSELL'S SETTLED ESTATES, In re (Settled Estates Acts (19 & 20 were owners for life or inheritance of the greater portion of the Pict. c. 120, 27 & 28 Vict. c. 45,- Settlement of Lease by Judge) lands on the banks of the river, and of the bed and channel of
V.-C. B. 40 the same between Hoyle Mill and Wath-upon-Dearne, and they STEWARD 0. NURSE (Costs— Taxation – Higher or Lower Scale) complained of the injury and nuisance to their property, and
M. R. 38
prayed for an injunction as above mentioned. The defence was WILSON 0. THORNBURY (Production of Documents - Comparison that this was a private as distinguished from a public nuisance ; of Handwriting-Forged Cheques) . . . V.-C. M. 40 that the sewage of the borough had been discharged into the
Sough Dyke and into the river long anterior to 1862; and that Common Law.
the defendants had acquired a right to foul the stream; that the
plaintiffs had acquiesced; that there had been no appreciable EMANUEL (JUDGMENT CREDITOR) v. BRINGER (JUDGMENT DEBTOR). increase of the nuisance to any of the plaintiffs; and that the
ROBERTS, GARNISHEE (Garnishee Order, Effect of - Bankruptcy Court ought not to grant an injunction, but leave the plaintiffs of Judgment Debtor- The Bankruptcy Act, 1869 (32 & 33 Vict.
to proceed at law. c. 71), s. 12–Common Law Procedure Act, 1854 (17 & 18 The Vice-Chancellor granted an injunction restraining the Vict. c. 125), 8. 63; . . . . . . .Q. B. 42
defendants from discharging the sewage into the river after the H10BT AND ANOTÆER v. Bort (Conversion-Delivery Order) E.c. 43
first day of Trinity Term, 1874. From this decision the deLOWRY, IN THE GOODS OF (Will — Executor according to the fendants appealed. Tenor -- Trustee) , . . . . . P. & M. 44
Karslake, Q.C., and H. J. Hunter, for the appellants. MARCHANT 1. LEE CONSERVANCY BOARD (Pension — Power to
Dickinson, Q.C., E. Cutler, and Burbury, for the plaintiffs, rary Pension-Lee River Navigation Improvement Act, 8. 76)
were not called on. Ex. Ch. from Ex. 43
THE LORD JUSTICE JAMES said that the plaintiffs had fully PETCHELL, IN THE GOODS OF (Will-Two Instruments called re
made out their case that the river was greatly fouled by the spectively Last Will and Testament—No residuary Bequest in
sewage; and, indeed, it was not denied by the defendants that the Lart) .
. . . . . P. & M. 44 SMITH 1. FLETCHER AND OTHERS (Trespass — Sic utere tuo ut
the river was rendered offensive in hot and dry weather. On the alienum non ladas-Duty of Landowner-Collecting Water)
other hand, the defendants' plea that they had a prescriptive Ex. Ch. from Ex. 44
right to foul the river entirely failed; for, in the first piace, there VatGHTON v. LONDON AND NORTH WESTERN RAILWAY COMPANY
could bo no prescriptive right to justify a public nuisance; and, (Negligence- Carriers Act (1 Will. 4, c. 68)-Felony of Car.
in the second place, their evidence had established no prescripriers' Servants) . .
. . . . Ex. 43 tion against the private rights of the plaintiffs as landowners. WALL v. CITY OF LONDON REAL PROPERTY COMPANY, (Agree The appeal must therefore be dismissed with costs. ment to grant the Use of an Entrance to Premises-Defective
THE LORD CHANCELLOR and LORDS JUSTICE MELLISH conTitle-Measure of Damages for Breach of Contract) 'Q. B. 42 curred. WOTTON, IN THE GOODS OF (Will-Execution-Position of Sigo
Solicitors: H. H. Poole, agent for W. II. Peacock, Barnsley nature--15 Vict. c. 21) . . . . , P. & M. 44 | Kynaston d Gasquet, agents for W. E. Parker, Barnsley. No. 6.-1874.
L. C. & L. JJ.
Feb. 12. / fact already in the creditors. There was no evasion of the Bills New Trustees Appointment of Sole Trustee-Breach of Trust of Sale Act, for possession of the property was taken immediately - Liubility of Solicitor.
on the execution of the deed. The appeal must therefore be This was an appeal from a decision of Vice-Chancellor dismissed. Wickens (see Weekly Notes, 1873, p. 11).
Solicitors : Weeks & Son ; T, H, Mortimore, The bill was filed by Mrs. Barnes and her children against Addy, the survivor of the trustees of the will of the testator in the suit, and against two gentlemen, solicitors, praying a declaration that the appointment of Mr. Barnes, the husband of Mrs.
M. R. In re HERTFORDSHIRE BREWERY COMPANY. Feb. 14. Barnes, as the sole trustee of the will, in the place of Addy, was Company-Winding-up Order—Memorandum signed by Infanta fraud upon the power to appoint new trustees in the will, and |
Companies Act, 1862, s. 199. a breach of trust; and that the transfer by Addy of a sum of The memorandum of the above-named company was regis2140?, Consols to Barnes as such sole trustee was a breach of tered in July, 1872. The company commenced business, but in trust; and that Addy and the two solicitors who had acted for
had acted for May, 1873, à resolution for winding up voluntarily was duly the parties in the transaction might be decreed to make good
passed, and in June, 1873, an order was made that the windingtho fund which had been misappropriated by Barnes, and might
up should be continued undor supervision. A liquidator was pay the costs of the suit. Barnes had become bankrupt, and
appointed and gave security. In the winding-up an order was Addy died during the pendency of the suit.
made on the 16th of December, 1873, directing the name of one The Vice-Chancellor made a decree declaring Addy's estate
of the persons who signed the memorandum to be struck off the liable to make good the loss of the fund, but dismissed the bill
list of contributories on the ground that he was still an infant against the two solicitors with costs. The plaintiffs appealed at the date of the order. from the latter part of this decree.
Doubts thereupon arose whether the company could properly Greene, Q.C., and Bilton, for the appellants.
be wound up voluntarily as a limited company; and as twenty Lindley, Q.C., W. Pearson, Q.C., and Begg, for the two
persons at least had carried on business under the style of the solicitors.
company, a petition was now presented by two creditors prayB. B. Rogers, for the representatives of Addy. THE LORD CHANCELLOR was of opinion that there was no sisting of more than seven mombers, under s. 199 of the Com
ing that the company might be wound up as an association conground for declaring either of the two solicitors liable to make
| panies Act, 1862, and that the old liquidator might be congood the fund, or to pay the costs of the suit. The appeal must tinued, and the proceedings in the former winding-up adopted. therefore be dismissed with costs.
Graham Hastings, for the petition. THE LORDS JUSTICES JAMES and MELLISH concurred.
Wulker, for the company and liquidator. Solicitors : Westbrook; Glynes & Sm; Duffield & Bruty : |
THE MASTER OF THE ROLLs made the order, and continued W. R. Preston.
the former liquidator, directing him to give new security for the
same amount as before, but with liberty to adopt the old sureL. JJ. Ex parte IZARD. In re COOK.
Feb. 13. ties and any of the proceedings under the former order. Bankruptcy – Assignment of all Debtor's Property-Previous Agree Solicitors : Halse, Trustram, & Co.
ment to give an Assignment on Demand. This was an appeal from a decision of Mr. Registrar Murray, sitting as chief judge, made in the liquidation of W. & J. Cook. To
STEWARD v, NURSE.
Feb. 14. In 1870, Aaron and Robert Cook, the father and brother of the debtors, advanced them various sums of money amounting
Costs— Taxation-lligher or Lower Scale. to 5001. ; and in August, 1870, on the occasion of the last ad. This was a suit to administer the separate estate of a testator vance of 2501, they signed an agreement to execute an assign- who at the time of his death was a member of a partnership ment on demand of their lease, business, and stock-in-trade to firm. Under an order made in this suit, a suit was instituted to the creditors, with a proviso that if they repaid the 5001. ad- wind up the affairs of the partnership. vanced the agreement should be void, but if they failed to repay Both suits had now been brought to a termination. It appeared it a valuation should be made, and the balance (if any) paid to that the separate estate of the testator, exclusive of his interest the debtors. At the same time the lease was deposited with the in the partnership, was at the time when the suit was instituted of creditors as a security for the duo performance of the agree the value of 2271.; that the value of the partnership assets, at ment. In April, 1873, the debtors became embarrassed, and the same time was 18001., of which the testator's share was one the creditors demanded an assignment of the lease, business, and half, amounting to 9001. The costs of the testator's representastock-in-trade in pursuance of the agreement. A valuation was tives of the partnership suit amounted to 3001., so that the actual accordingly made, and an assignment executed on the 5th of share of the testator was reduced to 6001. April, 1873, which included the whole of the debtors' property; Under these circumstances the taxing master was of opinion and the balance of the valuation, amounting to 1231., was paid that the costs ought to be taxed on the lower scale; and applicato the debtors, and the creditors took possession of the pro- tion was now made to the Court to review this decision. perty. On the 16th of April the debtors presented a petition Bevir, for the plaintiff, submitted that as the value of the Cor liquidation, and the trustee applied to the registrar for an estate administered amounted at the time when the bill was filed order declaring the deed of the 5th of April, 1873, an act of to more than 10001., the taxation ought to be on the higher scale. bankruptcy and void. The registrar refused to make the order, W. Pearson, Q.C., for the defendants, submitted that the estate and the trustee appealed from his decision.
administered consisted of the separate estate of the testator and De Gex, Q.C., and Finlay Knight, for the appellant.
so much of the partnership assets as came to him after the Roxburgh, Q.C., and Colt, for the creditors.
partnership suit was wound up. THE LORD JUSTICE MELLISH delivered the judgment of the THE MASTER OF THE ROLLs said that the value of the estate Court. He said that the agreement of August, 1870, was signed administered at the time the bill was filed exceeded 10001., and in consideration of the fresh advance of 2501. It was not a pre- the fact that it had afterwards been reduced by the payment of sent security for the debt, but as soon as a demand was made it the costs of the partnership sait, was immaterial for the present became a good equitable security, and the assignment of April, purpose. The costs of all parties must therefore be taxed on 1873, being executed in pursuance of it, was valid, and could not the higher scale. now bo set aside. The beneficial interest in the property was in Solicitors : G. L. P. Eyre & Co.; Stevens & King.