- May 29. V.-C. B. M. R. In re UNIVERSAL DRUG SUPPLY ASSOCIATION. Company - Voluntary Winding-up Creditor's Petition pulsory Order-Companies Act, 1862 (25 & 26 Vict. c. 89), s. 145. This was a petition asking for a compulsory order to wind up the above-named company. The petitioner was the former manager of the company, and claimed to be a creditor for about 50%. The company had gone into voluntary liquidation, and the petitioner had acted for some time under the liquidators, but a quarrel arose between them, and he then presented this petition. It appeared that the debts of the company amounted to about 200%. only; that assets of the company to the amount of about 350% had already been received by the voluntary liquidators; that there were still assets outstanding; and that the principal creditors were opposed to a compulsory order being made. Whitehorne, for the petitioner, said that as an unpaid creditor he was entitled to an order ex debito justitiæ. Bagshawe, Q.C., and J. Beaumont, for the company and liquidators. THE MASTER OF THE ROLLS held that the case was governed by s. 145 of the Companies Act, 1862, which provided that a voluntary winding-up should not be a bar to a creditor if the Court was of opinion that his rights would be prejudiced by a voluntary winding-up; and that here there was nothing to shew that the creditors' rights would be at all prejudiced; and he dismissed the petition with costs. Solicitors: J. Peace; Lewis, Munns, & Longden. May 23. In re VIANT'S SETTLEMENT. Settlement-Construction-Covenant to settle after-acquired Property. By a marriage settlement in 1857 the fruits of a policy of assurance effected by the husband, Arthur John Hawkins, on his life, were settled upon trust for the wife for life, remainder for the children of the marriage, and in default (which happened) of children of the marriage, for the husband absolutely, A. J. Hawkins died in 1859 intestate, leaving his widow and father his sole next of kin. Administration was in 1860 granted to the widow, but A. J. Hawkins' reversionary interest in the policy moneys was not included in the grant. The policy moneys were received by the trustees and invested in 20847. 11s. 91. consols. In 1866 the widow married again, and by an ante-nuptial settlement, after reciting that the intended wife was entitled to a life interest in the annual income of the consols, and the agreement on the marriage, it was thereby agreed and declared that the trustees should stand possessed of the same income and all other sum or sums of money which she should become entitled to during her said intended coverture, upon trust during the joint lives to pay the same to the wife for her separate use, and after her death, if the husband, John Viant, should be living, to him for life, or until he should do some act or some event should occur whereby the income or some part thereof if payable to himself would vest in some other person or persons, and subject thereto for the children of the marriage. The deed contained a covenant that if the wife or the husband in her right should during the coverture "become entitled to any sum or sums of money and personal estate whatsoever under the provisions of " the deed of 1857, the wife and husband would immediately upon her, his, or their becoming possessed of or entitled to the same, assign, settle, and assure the same upon the trusts of the settle This was a petition by a mortgagee of a fund in Court for a ment. stop order. The mortgagor had refused to consent to the order. Clare, for the mortgagor, objected to the petitioner having his costs, on the ground that the application should have been by summons, citing Wrench v. Wynne (17 W. R. 195). THE MASTER OF THE ROLLS made the order, but refused the petitioner his costs, holding that, whether the mortgagor consented or not, the application ought to be made by summons. Solicitors: R. M. & F. Lowe ; Chinery & Aldridge. V.-C. M. May 29, In re BRACKENBURY'S TRUSTS. Fund in Court-Investment on Foreign Securities—Dividend Warrants payable to Bearer. This was a petition for payment out of Court to trustees of a settlement about to be executed of a fund to which, in the events which had happened, the petitioner, a married woman, the wife of an Italian officer domiciled in Italy, was absolutely entitled, subject to a restraint on anticipation during coverture. The proposed settlement gave power to the trustees to invest the fund in Italian securities. W. Barber, in support of the petition, said it was desired to invest in Italian securities in order to increase income. In May, 1873, Mrs. Viant died, leaving three children of the second marriage, infants. In December, 1873, the petitioner John Viant assigned to the co-petitioner Howard "all that his right and interest of, in, and to the sum of 10427. 5s. 10d., or other the sum or sums of money to which he was entitled in right of his wife of and in the said moneys derivable under the said policy." On the 8th of January, 1874, the trustees of the first settlement paid over the proceeds of the consols, which they had sold in the previous year, to Elizabeth Sophia Hawkins, who was the legal personal representative of the father, and one of the next of kin, of Arthur John Hawkins, and on the 23rd of the same month Elizabeth S. Hawkins paid one moiety of the proceeds into Court. The respondents to the petition were Elizabeth S. Hawkins and the trustees of the second settlement. The question was, whether the fund in Court belonged to the petitioner Howard, J. Viant's assignee, or to the trustees of the second settlement-in other words, whether the fuud was subject to the covenant to settle after-acquired property. Kay, Q.C., and Cookson, for the petitioner. Colt, for one trustee, and representing the children. THE VICE-CHANCELLOR held that the words of the covenant second settlement. THE VICE-CHANCELLOR thought that the restraint on anticipa-operated on the fund, and ordered payment to the trustees of the tion made it undesirable to take the fund out of the control of the Court, but suggested that inquiry should be made as to whether the Paymaster-General would sanction the investment in foreign securities. It was ascertained that such an investment would be allowed when the dividends were payable to bearer by coupons or warrants passing from hand to hand. THE VICE-CHANCELLOR ordered accordingly. Solicitors: Combe & Wainwright; Pattison, Wigg, & Co. V.-C. H. Common Law. TOOLE v. YOUNG. May 26. residue of his personal estate to trustees to invest and pay the dividends, interest, and income of his trust moneys, stocks, funds, shares, and securities to his wife for life, remainder to his brother for life, remainder to the brother's children. The testator died on the 20th of December, 1870. The trustees of the will paid the widow the dividends on the shares till January, 1873. In that month the trustees received from the life depart-Q. B. ment of the office an extraordinary dividend of 2871. 15s., and in Copyright-Dramatic Composition-Dramatizing a Novel—3 & 4 July, 1873, they received from the fire department a special dividend of 5207. Doubts having been raised whether these dividends were capital or income, the trustees paid them into Court under the Trustee Relief Acts. The widow thereupon presented a petition claiming the dividends as income. Morgan, Q.C., and Law, for the petitioner. Bristowe, Q.C., and Dalton, for the remaindermen. Morshead, for the trustees. THE VICE CHANCELLOR said, having regard to the facts of the case, and the constitution of the Sun Office deed of settlement, and the mode in which the office had dealt with the money, he must hold the money to be income and not corpus, and that it must be paid to the petitioner. Costs of all parties out of the estate. Solicitors for the petitioner: Law, Hussey, & Co. V.-C. H. MOORE v. MOORE. Will. 4, c. 15, ss. 1 and 2. In 1863 Mr. Holinshead wrote a story 'Not above his Business,' in a publication called Good Words. In 1865, he dramatized the story, and in doing so he adopted the dialogue. He called the drama 'Shop.' He afterwards assigned it to the plaintiff; but it was never printed or represented either by Holinshead or the plaintiff. In 1870; Grattan also dramatized the story, he called his work' Glory,' he took the dialogue from the story; he assigned it to the defendant, who represented it on the stage. The question was whether the representation of the drama 'Glory' by the defendant was an infringement of the plaintiff's copyright in the drama 'Shop' within 3 & 4 Will. 4, c. 15, s. 1. Sir J. B. Karslake, Q.C., and Lucius Kelly, for the plaintiff. Digby Seymour, Q.C., and Lumley Smith, for the defendant. THE COURT (Cockburn, C.J., Blackburn, Quain, and Archibald, JJ.), held that the drama Glory' was not the dramatic production of the plaintiff's assignor, and therefore there had been no infringement of the copyright. Attorneys for plaintiff: Benham & Tindell. May 27. DAVIES, App.; HARVEY, RESP. May 25. Gift inter vivos-Donatio mortis causâ-Railway Scrip. William Moore, before 1866, owned a 100l. debenture in the London, Chatham, and Dover Company which, shortly after the company got into difficulties, he gave to the plaintiff (his wife) | Q. B. telling her to sell it or keep it, saying he believed it would pay in time. The debenture was, under the 32 & 33 Vict. c. 116, subsequently turned into 647. Arbitration Debenture Stock, 47. 10s. Arbitration Preference Stock, and 147. Ordinary Arbitration Stock. When the scrip certificates for the stock were received by Moore, he at once handed them to plaintiff, saying. "these are yours." They remained in plaintiff's possession till July, 1872, the husband receiving the dividend warrants, but in that month the dividend warrant having been lost, Moore took the scrip to enable him to get a new dividend warrant, promising to redeliver up the scrip. When the fresh warrant was obtained he paid the amount to the plaintiff. In December, 1872, Moore became dangerously ill, and on the 25th of that month his recovery was hopeless. On that day he sent for a deposit note for 470. 10s., which, at first, could not be found, but on its being found he gave it to his wife; he also, at the same time, gave her back the scrip certificates. He died on the 1st of January, 1873. The plaintiff's title not being admitted, she filed this bill. J. H. Palmer, Q.C., and J. Simmonds, now contended that there was a complete gift inter vivos of the railway scrip, or if not, a gift mortis causâ. The deposit note was clearly a donutio mortis causâ, Lindley, Q.C., and Cracknall, for the defendant. THE VICE-CHANCELLOR said that in his opinion the gift inter vivos of the railway scrip was incomplete, and was, from the nature of the property, incapable of being a donatio mortis causâ. The deposit note was, however, a clear donatio mortis causâ ac· cording to the authorities. The costs must come out of the estate. Solicitors for the plaintiff: Bevan & Daniell. ERRATUM. Bell v. Turner (ante, p. 113); add to the names of Solicitors in this case G. J. Brownlow, for defendants Turner and Camphausen. Law Union; he was also a cabinet maker and carried on busiThe appellant was a guardian of the poor for the Neath Poor On the 24th of July, 1872, the relieving officer purchased at the ness in partnership with one J. F. Davies, as Davies & Son. shop of Davies & Son from J. F. Davies an iron bedstead, which was, by the direction of the relieving officer, delivered by J. F. Davies at the house of an out-door pauper of the union. The appellant was not present when the bedstead was ordered, nor when it was paid for, nor when it was delivered. The price was paid to J. F. Davies, who made out the account for it, and gave the receipt in his own name. person hereafter to be appointed in any parish or union to any By s. 77 of 4 & 5 Will. 4, c. 76, "it shall not be lawful for any office concerned in the administration of the laws for the relief of the poor, or for any person who, after the 25th of March, 1835, shall fill any such office, to furnish or supply for his own profit ordered to be given in parochial relief to any person in such or on his own account any goods, materials, or provisions parish or union. . . . The questions were whether a guardian is a person appointed to an office within the meaning of the above section, and whether the furnishing or supplying the goods in question by J. F. Davies was, under the circumstances, a furnishing or supplying by the appellant. Francis Turner, for the appellant. Poland, for the respondent. THE COURT (Blackburn and Lush) answered both questions in the affirmative. Attorneys for appellant: Cowdell, Grundy, & Browne. goods valued at 14,7007., the commission being valued at 15001. | acts bound the company, and what he said on such an occasion 2nd, on profits on charter valued at 2801. 3nd, on 222 casks of was admissible in the same way as if the defendants had been spirits valued at 28007. individuals and had made the statement themselves. Attorneys for plaintiffs: Nash, Field, & Layton. Attorneys for defendants: Sharp & Ullithorne. Plea, concealment of a material fact. Particulars of plea, that the insured knew and concealed from the defendant that insurances were made by him, and others in concert with him, on interests alleged to be at risk in the vessel, on values greatly exceeding the actual value of those interests. The value of the goods, including cost, charges, and insurance, amounted to less than 8000l., and the various insurances on the goods, including profits, amounted to about 14,0007. The cost, charges, and insurance on the spirits, amounted to 9731., and they were valued at 28007. At the trial it was proved that it was material to underwriters to know the extent of the over valuation when it was to such an extent as appeared in this case, and it was also proved that where the valuation was excessive, the risk was considered a speculative one, which one class of underwriters would not take at all, and another class would take only if a sufficient premium was offered. The jury found that the valuations were excessive; that there was not sufficient evidence to shew whether they were made with a fraudulent intent; but, whether fraudulent or not, it was material to the underwriter to know that they were excessive; and that that fact had been concealed from the underwriter. The question was whether the high valuations ought to have been disclosed by the assured. May 11. Sir H. James, Q.C., Watkin Williams, Q.C., and Lanyon, for the defendant. Sir J. B. Kurslake, Q.C., Butt, Q.C., and F. M. White, for the plaintiff. May 27. THE COURT (Blackburn, Lush, and Archibald, JJ.) held that the rule laid down in Parsons on Insurance,' vol i., p. 495, that all should be disclosed which would affect the judgment of a rational underwriter governing himself by the principles and calculations on which underwriters do in practice act, was a sound one, and that the assured was bound to disclose that the values greatly exceeded the actual value. Attorneys for plaintiff: Stibbard & Cronshay. Attorneys for defendant: Hollams, Son, & Coward. Q. B. KIRKSTALL BREWERY COMPANY v. FURNESS RAILWAY May 27. COMPANY. ROBERTS, APP.; EGERTON, RESP. Q. B. May 30. Adulteration Act (35 & 36 Vict. c. 74), s. 2—Selling as unadulte rated an adulterated Article-" Green Tea." The appellant, a tea dealer, was charged under 35 & 36 Vict. c. 74, s. 2, for selling as unadulterated " green tea" which was adulterated. A person purchased two ounces of "green tea " at the appellant's shop, for which he paid 51d. The shopman stating that he was authorized by his employers to guarantee all their green teas of the value of 3s. per pound and upwards as genuine green teas. On analysis, the tea was proved to be painted or faced with gypsum and Prussian blue, for the purpose of colouring it. The tea was sold in the same state in which it comes from abroad. The tea which is imported from China as green tea, and generally known as such in the tea trade, is painted and faced in this manner. The justices were of opinion that as this practice was not known to the public, the appellant had been guilty of the offence charged, and convicted him accordingly. C. Russell, Q.C. (Segar with him), for appellant. THE COURT (Cockburn, C.J., Blackburn and Archibald, JJ.; Quain, J., dissenting), affirmed the conviction on the ground taken by the justices. Attorney for appellants: W. Hunter New. Q. B. A child having been born in England, where the mother was resident, a summons in bastardy was obtained against the apEvidence-Statement made by Agent of Defendants acting within which had resulted in the birth took place in Ireland. An order pellant, as the father; he was an Irishman, and the connection Scope of his Duty-Station Master. Declaration for the loss of a parcel of money sent by defendants' railway to their station at U., addressed to plaintiffs. Plea, the Carriers Act, and that no declaration was made. Replication, that the parcel was stolen by defendants' ser vants. At the trial it was proved that a parcel of money was sent addressed to the plaintiffs at U. by the defendants' railway; it was not delivered in due course. H., parcel porter at the U. station of the defendants, to whose hands the parcel would come, had absconded just at the time the parcel ought to have been delivered. A police superintendent was called, and stated, after objection by the defendants, that he saw P., the station master at U. station, soon after the loss of the parcel, and that P. said, "a man of the name of H. had absconded from the service, that a parcel was missing, and he, P. suspected him to have taken it, and would I, the superintendent, make inquiries." Sir H. James, Q.C., and Reid, for the plaintiffs. Price, Q.C., and Crompton, for the defendants. May 27. THE COURT (Cockburn, C.J., Quain, and Archibald, JJ.) held the evidence admissible. The station master was the person in authority at his station, he was acting within the scope of his duty in setting on foot inquiries by the police, he was therefore acting as the agent of the company, and therefore his Act as to Threats and Molestation (34 & 35 Vict. c. 32), s. 3—Costs against Convicting Justices-Appeal. The defendants having been convicted by justices of an offence under the Act as to threats and molestation (34 & 35 Vict. c. 32), an appeal was brought to quarter sessions under s. 3, which enacts that any party aggrieved by a conviction made by a court of summary jurisdiction may appeal, subject to certain conditions: (2) The appellant shall within seven days after the cause of appeal give notice to the other party and to the court of summary jurisdiction. (5) The court of appeal may make such order as to costs to be paid by either party as the court thinks fit. The appellants gave due notice to the prosecutor and to the convicting justices, and the justices as well as the prosecutor were made respondents, but the justices did not appear; the quarter sessions, however, on quashing the conviction, made an order, in which the justices were named respondents as well as the prosecutor, and which ordered the respondents or some of them to pay the appellants' costs. The appellants having brought up the conviction by certiorari under 12 & 13 Vict. c. 45, in order to enforce the payment of costs, a rule was obtained to strike out so much of this order as ordered the justices to pay costs. Willoughby, shewed cause. McIntyre, Q.C., in support of the rule. THE COURT (Cockburn, C.J., Blackburn, Quain, and Archibald, JJ.), made the rule absolute with costs. Whether or not if the justices had appeared an order for costs might have been made against them, it was clear, beyond question, that unless the particular statute gave the power, the court of appeal had no power whatever to order convicting justices to pay costs, where they took no part in the appeal. Attorney for appellants: Bury Hutchinson. Case stated by justices under the 20 & 21 Vict. c. 43. The question for the decision of the Court was whether it was necessary for the respondent, under the 3rd section of 35 & 36 Vict. c. 74, at the time of selling an article with which some foreign substance had been admixed to declare not merely the fact that the article was adulterated, but also the nature and proportion of the adulterating substance. Merewether, for the appellant. Wills, Q.C. (Meadows White with him), for the respondent. THE COURT (Lord Coleridge, C.J., Brett and Grove, JJ.) held that it was sufficient to declare the fact of the admixture. Judgment for respondent. Ferocious Dog-Evidence of Ferocity—Scienter. The defendant, a publican, was the owner of a large Newfoundland dog, which upon the evidence appeared to be of a ferocious nature, and which was proved to have bitten the plaintiff without any provocation. The only evidence to shew that the defendant was aware of the vicious propensities of the animal was, that he had before attempted to bite two persons, Ex. one of them twice, and on the second occasion in front of the bar of the public-house where his master resided. On this latter occasion complaint was made to two persons who were serving behind the bar, and to a young woman who came from the bar-parlour and appeared to be the barmaid, who said the defendant was not at home, and recommended the complainant to call again. The learned judge (Honyman, J.), held there was no evidence of the scienter, and nonsuited the plaintiff. THE COURT (Brett, J., dissenting) ordered a new trial, on the ground that there was evidence of a scienter, which ought to have been submitted to the jury. Willoughby, and Poulter, for the plaintiff. May 28. YATES AND OTHERS, PETS.; LEACH AND ANOTHER, RESPS. Municipal Election-Petition-Striking out Respondent's NameCorrupt Practices (Municipal Elections) Act, 1872 (35 & 36 Vict. c. 60), ss. 13, 18. This was an application to strike the respondent, Mr. Leach's name out of the petition, under the following circumstances:At an election for the office of town councillor Milnes and Leach were candidates. Milnes obtained a majority of thirtyfive votes over Leach, and was declared elected, but being disqualified refused to serve. Leach thereupon claimed to have been elected, and having made the requisite declaration, acted on several occasions in the exercise of the office. A petition being presented under the Act, to which both Milnes and Leach were made respondents, both of them gave notice under s. 18 of the Act of their intention not to oppose the petition. No notice Attorneys for appellant: Lewis, Munns, & Longden. June 1. WOOD v. WOAD AND OTHERS. Waddy, Q.C. (Tennant with him), in support of the demurrer. THE COURT allowed the demurrer: Kelly, C.B., and Amphlett, B., holding that the allegations in the declaration shewed that the expulsion was invalid, and the plaintiff's rights therefore not affected; Cleasby and Pollock, BB., holding that the declaration did not sufficiently allege misconduct in the defendants to shew a cause of action against them; and Cleasby and Amphlett, BB., doubting whether in any case an action at law would be maintainable by plaintiff against the defendants for acts done by them in the management of the affairs of the company. Attorney for plaintiff: W. Eley. Attorneys for defendants: Williamson, Hill, & Co. . V.-C. H. 133 131 131 L. JJ. 130 GROVE v. COMYN (Partition Act, 1868-Sale at Request of Infants) V.-C. M. HONYWOOD v. HONYWOOD (Tenant for Life and Remainderman -Timber—Thinnings) M. R. 131 KEVAN, Ex parte. In re CRAWford (Fraudulent Preference· "Payee in good faith and for valuable consideration"-Bankruptcy Act, 1869, 8. 92) LOVERING, Ex parte. In re JONES (Bankruptcy-Disclaimer by Trustee-Bankruptcy Act, 1869, 88. 23, 24-Bankruptcy Rules, 1870, r. 28) LOWENTHAL, Ex parte. In re LowENTHAL (Adjudication of Bankruptcy-Proof of Trading-Proof of Posting Letter--Notice of Dishonour of Foreign Bill) MAYOR OF HASTINGS v. IVALL (Right to Foreshore-Grant by Letters Patent-Acts of Ownership-Wrongdoer not entitled to set up claim of adverse Party against primâ facie Owner) L. JJ. 130 L. JJ. 129 BNKCY. 134 V.-C. M. 132 NADEN, Ex parte. In re WOOD (Proof-Debt "incapable of being fairly estimated"-Separation Deed-Annuity-Bankruptcy Act, 1869, 8. 31) PARKE, Ex parte. In re POTTER (Mortgage by Tenants in Common -Separate Attornment as to each Moiety at a separate RentDistress-Seizure of Chattels belonging to the Mortgagors as Partners-Bankruptcy Act, 1869, s. 31) POLLOCK V. POLLOCK (Apportionment Act) BNKCY. V.-C. M. 134 131 131 13) 132 133 135 Cutler, App.; TURNER AND ANOTHER, RESPS. (Master and Ser- Adjudication of Bankruptcy-Proof of Trading-Proof of Posting Letter-Notice of Dishonour of Foreign Bill. This was an appeal from a decision of the Chief Judge in Bankruptcy. Mr. Emil Lowenthal, formerly a merchant in Sierra Leone, drew a bill of exchange for 14971. on the 23rd of September, 1872, upon Southam, Wike, & Co., of Manchester, payable ninety days after sight. The bill was indorsed by Lowenthal, and came into the hands of the Sheffield Banking Company for value. It was accepted by Southam, Wike, & Co., but was dishonoured by them at maturity. The holders caused the bill to be duly presented by a notary public and protested by him, and they sent notice of the dishonour to Lowenthal. In November, 1873, they issued a debtor's summons against Lowenthal for the amount of the bill, describing him as a trader, and he committed an act of bankruptcy by not paying or securing the debt within seven days. A petition for adjudication of bankruptcy was then presented by the banking company against him, under which he was adjudicated a bankrupt. Lowenthal appealed against the adjudication, alleging various objections, which the Chief Judge overruled, and the bankrupt now appealed from his decision. The principal objections to the adjudication were these: First, that the posting of the letter containing the notice of dishonour to Lowenthal was not sufficiently proved; secondly, that the letter did not give him notice that the bill had been protested by a notary for non-payment, the letter merely stating that the bill had been "duly presented for payment and returned dishonoured;" and thirdly, that it was not proved that Lowenthal was a trader. Little, Q.C., and Yate Lee, for the appellant. De Gex, Q.C., and G. W. Lawrance, for the banking company, were not called on. THE LORD JUSTICE JAMES said that in his opinion the evi |