mael.

May 26.

Bombay Civil Fund-Annuities-Lapse of Time-Jurisdiction. This was a suit to recover from the trustees of an institution called the Bombay Civil Fund the arrears of certain annuities alleged to have been payable to Mrs. Flower and her daughter as the widow and children of a civil servant of the East India Company. The Vice-Chancellor Bacon decreed payment of the annuities claimed on behalf of Mrs. Flower, but not of the annuities claimed by the daughter, as noted ante, p. 63. The defendants appealed.

Cotton, Q.C., Kekewich, and Hornell, for the defendants. Kay, Q.C., Miller, Q. C., and J. Beaumont, for the plaintiffs. Macnaghten, for the Secretary of State for India. THEIR LORDSHIPS thought that the suit ought to have been instituted in India, as however the defendants were here and had not objected by plea or demurrer, they would proceed to decide the question. As to the principal annuities claimed on behalf of Mrs. Flower and her daughter, their Lordships held that Mr. Flower had not complied with the rules so as to secure the annuities. As to one annuity which was to make up the sum of 500l. a year to Mrs. Flower, she had claimed it in 1842, and would be entitled to it unless the lapse of time was a bar. It had been argued that as the fund was in the hands of trustees time did not run against the plaintiffs, but they were trustees for the fund and not for claimants upon it. The plaintiffs were however entitled to so much of this annuity as became due within six years before the filing of the bill. As to the rest, the bill would be dismissed but without costs.

Solicitors: W. A. Day; Freshfields & Williams; Lawford & Waterhouse.

The plaintiff appealed.

Kay, Q.C., and E. L. Pemberton, for the plaintiff. Swanston, Q.C., Everitt, and Eyre, for the defendants. THEIR LORDSHIPS said that they agreed with the Vice-Chancellor, that there was no ground for setting aside the deed, which certainly conveyed one-fifth of the land in question. Their Lordships did not think it right to leave the plaintiff to proceed at law as to the other four-fifths, and would at once decide the matter. The title of the plaintiff depended on the fact that one John Raven, who died in 1746, was seised in fee of the land in question. This had not been shewn by the plaintiff nor was the recital of the fact by the defendant in a draft deed prepared by his solicitor a binding admission on him. The appeal must be dismissed with costs.

Solicitors: Woodbridge & Sons; E. Digby.

SMITH V. GRANT.

Equitable Assignment-Notice.

May 27.

The question in this case was whether an award for 1750, to be paid by F. Doulton to the plaintiff Smith, constituted an equitable charge on certain claims of Doulton against the defendant Grant, of which Grant had notice so as to bind him. The Vice-Chancellor Malins held that there was such a charge, as noted ante, p. 78; and the defendant Grant appealed.

Glasse, Q.C., Higgins, Q.C., Speed, and G. Woods, for the appellant.

Cotton, Q.C., and W. P. Beale, for the plaintiff.

THEIR LORDSHIPS held that there was an equitable charge on the money payable by Grant, of which Grant had notice; and if he chose to pay Doulton without regard to that notice, he must take the consequences. The appeal must be dismissed with costs. Solicitors: J. V. Musgrave; West & King.

moners.

The plaintiff had died intestate, leaving six daughters his co-heiresses at law. Three of the co-heiresses had obtained the common order to revive against the lord of the manor, and the other three co-heiresses. A motion was now made to discharge this order.

Fry, Q.C., J. T. Humphry, and H. S. Milman, in support of the motion, contended that by the order of revivor the frame of the suit had been changed, inasmuch it would no longer be on behalf of all persons entitled to rights of common; and further, that the rights of common could not be claimed by three only of the co-heiresses, as the other three might release their claim, and the whole right being indivisible would then be destroyed. Joshua Williams, Q.C., and Whitly, for the defendants were not called on.

THE MASTER OF THE ROLLS held that there was no foundation for the argument that one tenant in common could release the right of another tenant in common, and that the order had been properly made; and he refused the motion with costs. Solicitors: Horne & Hunter; Carlisle & Ordell.

M. R.

WELLS v. KILPIN.

May 25. Judgment Creditor-Writ of Elegit-Prior Mortgage—Equitable

Execution.

The plaintiff was a judgment creditor of the defendant Kilpin, who was entitled to a life estate in certain real estate in Hampshire, subject to divers mortgages. The legal estate was vested in one of such mortgagees, and it was stated at the bar that he was in possession.

The plaintiff had sued out writs of elegit and caused them to be registered; but was unable to obtain execution by reason of the existence of such prior mortgages.

The bill was filed against Kilpin and a mortgagee whose incumbrance was subsequent to the plaintiff's judgment; and prayed for a declaration that the plaintiff's judgment constituted a valid charge on Kilpin's equitable estate subject to the prior incumbrances; for foreclosure; for the appointment of a receiver; and for general relief.

The cause now came on to be heard.

Townsend (The Attorney-General, Sir R. Baggallay, with him), for the plaintiff.

Waller, Q.C., and S. Dickinson, for Kilpin, contended that the

plaintiff was not entitled to a charge or to foreclosure; and that he was not entitled to have a receiver appointed, but ought to redeem the prior incumbrancers.

Southgate, Q.C., and Bevir, for the subsequent mortgagee. THE MASTER OF THE ROLLS made a decree appointing a receiver, without prejudice to the rights of prior incumbrancers, such receiver not to take possession if it should appear that a prior incumbrancer was already in possession, until the claim of such prior incumbrancer was satisfied; and directed an account to be taken of what was due to the plaintiff, and ordered a sale in the event of the debt not being paid within six months from the date of the certificate.

Solicitors: Hurford & Taylor; Garrard & James.

M. R.

TURNER v. BUCK.

May 26. Will-Legacy payable out of Proceeds of Sale of Real EstateAdministration-Interest.

Testator devised real estate upon trust for sale, and directed certain legacies to be paid out of the proceeds of the sale.

The question arose on further consideration of a suit for the administration of the estate, from what time the interest on the legacies was payable.

Waller, Q.C., and Colt, for the plaintiff.

Southgate, Q.C., and Cust, for the testator's widow. Cozens-Hardy, for the representative of a deceased legatee, contended that as the legacy was charged on real estate the rule that interest was to be calculated from the end of a year from the testator's death had no application.

THE MASTER OF THE ROLLS held that the legatees could only claim interest from the period at which a sale might reasonably have been effected, and that one year from the testator's death was a reasonable time.

Solicitors: A. Turner; Flux & Leadbitter.

V-C. M.

May 22.

In re TUNIS RAILWAYS COMPANY. Winding-up-Scheme of Reconstruction-Rights of a Majority. This company was incorporated in July, 1872, with a capital of 250,000!. Debentures were subsequently issued and subscribed for to the extent of 220,000. The railway intended to be constructed was partly finished, but more money was required for its completion, and the company being in difficulties resolved upon winding up voluntarily. On the 14th of January, 1874, the voluntary winding-up was continued under the supervision of the Court. A scheme was then proposed by a committee of the debenture-holders for the reconstruction of the company, and at a meeting held on the 22nd of April the scheme received the sanction of twenty-nine out of thirty-one of the debenture-holders then present, the two dissentients being Mr. Reilly, who held twenty debentures, and Mr. Herbert, the holder of ten debentures.

Mr. Pulbrook, who held one debenture, appeared as solicitor for the dissentients at the meeting.

(Law Rep. 8 Ch. 702) applied to this case, in which an overwhelming majority of creditors had decided upon the propriety of taking a particular course in order to save their property from complete loss. He would therefore make an order confirming the scheme. Costs of all parties, except the dissentient debenture-holders, to be paid out of the estate. Solicitors: Heritage; Pulbrook.

May 26.

BANKRUPTCY. Ex parte Boss. In re WHALLEY.
Debtor's Summons-Act of Bankruptcy-Petition for Adjudication
-Offer of Debtor to pay-Creditor's Right to Adjudication—
Bankruptcy Act, 1869, ss. 7, 8, 9, 80 (sub-s. 10).

This was an appeal from a decision of the registrar of the Wrexham County Court, acting as judge.

A petition for adjudication of bankruptcy was presented by Boss against Whalley, founded upon the non-compliance of Whalley with the requirements of a debtor's summons for a sum of 751. Before the petition came on to be heard an offer was made by Whalley's attorney to pay the 75l., with interest and costs. Boss refused to accept it unless some other sums which he claimed from Whalley were also paid. On the hearing of the petition, the petitioning creditor's debt and the act of bankruptcy were proved, and an adjudication was asked for. Whalley's solicitor renewed the offer to pay the 757., with interest and costs. The registrar ordered that on payment to Boss, within one month, of the 751., with interest, and the costs of the proceedings in bankruptcy, the petition be dismissed, and all further proceedings thereon stayed.

Boss appealed.

De Gex, Q.C., and R. Griffiths, for Boss.
Winslow, Q.C., and E. Cutler, for Whalley.

THE CHIEF JUDGE said that under the Act of 1869 it was competent for the creditor to have received payment of the debt notwithstanding the act of bankruptcy, but there was nothing in the Act or in the policy of the law which made it incumbent on him to do so. He might refuse to accept payment and prosecute the remedy which the Act gave him. The registrar had certainly no authority to give time to the debtor upon a mere promise to pay. The order must be discharged, and the matter must be referred back to the county court to continue the proceedings. Solicitors: Beyfus & Beyfus; C. B. Hallward.

Glasse, Q.C., Waller, Q.C., and Latham, for the petitioners, the committee of debenture-holders.

J. Pearson, Q.C., and Brooksbank, for the dissentients, submitted that this being a case of creditors and not shareholders it did not come within the authorities in which the Court had given effect to the wishes of a majority in carrying out a scheme of reconstruction.

Higgins, Q.C., and Graham Hastings, for the liquidator. THE VICE-CHANCELLOR was of opinion that the principle of Ex parte Fox (Law Rep. 6 Ch. 176), and Poole's Executors Case

In March defendant had 68 acres ready for potatoes, 25 acres being already sown, the other 43 were afterwards sown, and the acreage was amply sufficient to grow 200 tons; up to the end of July the crop promised well, but in August the potato blight appeared, and the crop failed, and the defendant was able to deliver only 80 tons.

The plaintiff having brought an action for the non-delivery of the other 120 tons.

D. Seymour, Q.C., and Waddy, Q.C., for plaintiff.
Field, Q.C., and Beasley, for defendant.

THE COURT (Blackburn, Quain, and Archibald, JJ.) gave judgment for the defendant. The contract was for a portion of a

Attorneys for plaintiff: Monckton & Co., for Ayliff, Holbeach. Attorneys for defendant: Wright, Bonner, & Wright, for Bonner & Calthrop, Spalding.

On the trial of an indictment against a parish for the nonrepair of a highway, it appeared that the road had originally been set out in 1789 as an occupation road by an award under an Inclosure Act, and the adjoining landowners or occupiers were ordered by the award ever after to keep the road in repair. There was ample evidence given of user by the public to support the presumption of a dedication before 5 & 6 Wm. 4, c. 50, in an ordinary case; but the defendants, relying on the judgment of Abbott, C.J., in Rex v. St. Benedict (4 B. & A. 447), contended that the award prevented such a road from ever becoming a highway repairable by the parish. A verdict was directed for the Crown, with leave to move to enter the verdict for the defendants on the above point.

A rule having been obtained accordingly,
Maule, Q.C., for the prosecution.
Field, Q.C., for the defendants.

THE COURT (Blackburn, Quain, and Archibald, JJ.) discharged the rule, holding that there was nothing in the fact of the road having been set out by the award, which directed the repairs to be by the adjoining landowners, to prevent the road becoming a highway repairable by the inhabitants at large; and that the judgment of Abbott, C.J., might be explained as meaning that in such a case the evidence of user by the public must be greater than in an ordinary case, in order to lead to the presumption of dedication.

Attorneys for plaintiff: Johnson & Weatherall. Attorneys for defendant: Courtenay & Croome.

Certain leasehold premises were put up for sale by auction on certain conditions, and the sixth condition was as follows:underlease, dated the 1st of May, 1869, being a lease from W. S. to W. B. S. for a term of fourteen years less two days from Lady Day, 1869; and it should form no objection to the title that such indenture is an under-lease: and no requisition or inquiry shall be made respecting the title of the lessor or his superior landlord, last receipt for the rent reserved by the under-lease shall be or his right to grant such under-lease; and the production of the accepted as conclusive evidence of the due observance and performance of all the covenants contained therein up to the time of the completion of the purchase." The vendee having purchased the premises, an abstract of title was sent him, but on making further inquiries he discovered that on the 15th of April,

"The abstract of title shall commence with an indenture of

the contract.

1867, W. S. had mortgaged the premises to the Standard Building Society, so that the under-lease of the 1st of May, 1869, was void; he, therefore, under the 11th condition of sale, rescinded the 6th condition from taking any objection to the title. The question was whether the vendee was not precluded by Edwyn Jones, for the plaintiff. Gibbons, for the defendant.

Attorneys for defendants: Torr & Co., for Dransfield & Sons, Penistone.

Q. B.

HEYWOOD v. PICKERING. May 23. Bill of Exchange-Cheque-Presentment-Payment by Cheque. The defendant, in payment of a debt due from him to the plaintiff, gave the plaintiff on the 27th of January in London, too late to be paid into his bankers that same day, a cheque drawn by the defendant on the Jersey Bank, and payable at Jersey. The plaintiff paid the cheque on the 28th of January into his bankers, the London and Westminster Bank; that same day they forwarded it to the Jersey Bank demanding payment. The Jersey Bank received it on the 29th of January. They neither remitted the money nor returned the cheque. On the 1st of February the Jersey Bank stopped payment; the defendant having assets in their hands more than sufficient to pay the cheque. On the 7th of February the cheque was returned to the plaintiff's bankers marked "referred to drawer." It is the custom of London bankers that when a foreign cheque is paid to a banker by a customer, if the banker has no agent at the place where the cheque is payable, to send the cheque direct to the banker on whom it is drawn, demanding payment, and the banker on whom the cheque is drawn immediately either remits the money or returns the cheque.

The question was, whether the plaintiff by his course of dealing had made the cheque his own so as to make the payment by cheque an absolute payment.

McIntyre, Q.C., for the defendant.

W. A. Clark, for the plaintiff.

THE COURT (Blackburn, Quain, and Archibald, JJ.), held that

rescind the contract of sale.

Attorney for plaintiff: Kearsey.
Attorney for defendants: Braham.

Ex. Ch. from Ex. May 14. DANIEL AND OTHERS v. STEPNEY AND ANOTHER. Landlord-Tenant-Power of Distress-Covenant running with Land-Notice.

The Court of Exchequer had decided in this case that a power contained in a lease of coal mines to distrain on "any lands in which there shall be for the time being any pits or openings by or though which the coal and culm by the said deed demised shall for the time being be in course of working by the lessees, their executors, administrators, and assigns," did not run with the land so as to affect assignees of the lease, and gave judgment for the plaintiffs, who, being such assignees, sued in respect of an exercise of the power of distress at pits referred to in the above-mentioned clause (reported Law Rep. 7 Ex. 327). The defendants having brought error, and the pleadings having been amended by setting out the lease and the assignment, the case was argued by

Joshua Williams, Q.C. (Giffard, Q.C., Herschell, Q.C., and Trevelyan with him), for the plaintiffs.

Manisty, Q.C. (Beresford with him), for the defendants. THE COURT (Cockburn, C.J., Blackburn, Keating, Mellor, Lush, and Denman, JJ.), reversed the judgment, on the ground that the plaintiffs took with notice, and were bound in equity by the provision in question.

Attorney for plaintiffs: Hacon.
Attorney for defendants: Calcott.

124

124

BROWNE v. RADFORD (Express Trust — Acquiescence — Statute of
Limitations (3 & 4 Wm. 4, c. 27), 88. 25, 27). M. R.
CARTMELL'S CASE. In re COUNTY PALATINE LOAN AND DISCOUNT
COMPANY (Contributory — Transfer — Agency — Purchase by
Company)
L. JJ.
FOXON v. GASCOIGNE (Solicitor's Lien-Charge on Property re-
covered or preserved-Bill to restrain Injury to Ancient Lights
-Dismissal of Bill-23 & 24 Vict. c. 27, 8, 28). M. R. 124
HOPKINS' TRUSTS, In re (Shares in Insurance Company-Dividends
-Income or Capital)

V.-C. H. 125

MOORE v. MOORE (Gift inter viros-Donatio mortis causâ-Railway Scrip) V.-C. H. 126 UNIVERSAL DRUG SUPPLY ASSOCIATION, In re (Company--Volun tary Winding-up-Creditor's Petition-Compulsory Order— Companies Act, 1862 (25 & 26 Vict. c. 89), 8. 145) M. R.

125

125

M. R. 125

C. P. 128

APPLEBEE". PERCY (Ferocious Dog-Evidence of Ferocity-
Scienter)
DAVIES, APP.; HARVEY, RESP. (Guardian Goods supplied by
way of Parochial Relief—3 & 4 Will. 4, c. 76. s. 77) Q. B.
HAMPTON, APP.; RICKARD, RESP. (Bastardy-Birth of Child in
England-Place of Procreation out of England). Q. B.
IONIDES v. PENDER (Marine Insurance-Concealment―Excessive
Valuation of Goods)

126

127

Q. B. 126

REG. v. GOODALL (Act as to Threats and Molestation (34 & 35 Vict. c. 32), s. 3-Costs against Convicting Justices-Appeal)

PAGE

Contest between Heir-at-Law and Next of Kin. The testatrix in this case directed that on her decease her trustees should sell and dispose of all her property heritable as well as personal, and after satisfying her debts and legacies should "pay over the residue to her heir-at-law, whom failing, to her next of kin." After the disposal of her heritable and personal property, the residue in the hands of the trustees amounted to about 2,3007.; and the question was whether this sum should go to the respondent as heir-at-law, or to the appellants as next of kin.

The Court of Session (Second Division) held that as the property at the death of the testatrix consisted mainly of heritage, and as the term "heir-at-law" was flexible, the sound construction in the case must be in favour of the respondent; and they pronounced judgment accordingly.

The next of kin appealed tofthe House, having for their counsel, The Lord Advocate (Mr. Gordon, Q.C.), Mr. Horn, and Mr. Orr Paterson.

Mr. Cotton, Q.C., and Mr. James T. Anderson, appeared for the respondent.

THE LORD CHANCELLOR (LORD CAIRNS), LORD CHELMSFORD, and LORD SELBORNE, agreeing that the judgment complained of was right, it was affirmed, and the appeal dismissed with costs. The case, as decided by the Court of Session, is reported in the 3rd Series of the Scotch Cases, vol. ii., p. 160.

Appellants' agents: Holmes, Anton, Greig, & White. Respondent's agents: Markby, Turry, & Stewart.

May 4.

COURTENAY et al. v. COUNTESS OF ROTHES. Defective Entail-Judicial Declaration of its Invalidity. The Countess of Rothes sought a judicial declaration that the entail of her estate in Fifeshire was invalid, and that she was consequently at liberty to sell or dispose of it as she pleased.

The subsequent heirs, including the above appellants, were made defenders.

The Court of Session (First Division) gave judgment in favour of the Countess, holding that under 11 & 12 Vict. c. 36, s. 43, the Countess was entitled to have the entail declared invalid by reason of the omission in the resolutive clause of the cardinal prohibition against sale and alienation.

On appeal to the House,

Mr. Cotton, Q.C., and Mr. Badenach Nicolson, contended that there were general words in the deed of entail which were in law sufficient to interdict sales and alienations.

The Lord Advocate (Mr. Gordon, Q.C.), and J. T. Anderson, the respondents' counsel, were not called upon,

THE LAW PEERS-THE LORD CHANCELLOR (LORD CAIRNS), LORD HATHERLEY, LORD O'HAGAN, and LORD MONCREIFF unanimously agreeing that the entail was invalid, and that the judgment complained of was correct. The appeal, therefore, was dismissed; but without any award of costs, as the Countess did not demand them.

Appellant's agents: Loch & Maclaurin.
Respondent's agents: Martin & Leslie.

Contributory-Transfer-Agency-Purchase by Company. By the constitution of the County Palatine Loan and Discount Company the directors had power to purchase shares on behalf of the company, and had power to appoint a manager. No form for the transfer of shares was prescribed. The manager agreed to buy from a Mr. Cartmell 57 shares in the company. Mr. Cartmell executed a form of transfer to two of the directors, and the price of his shares was placed to his credit in the books of the company, and the register was altered accordingly. The two directors deposed that they knew nothing about it. The company was wound up, and Mr. Cartmell was, by the Court of Chancery of the County Palatine, placed on the list of contribu

tories.

Mr. Cartmell appealed.

Jackson, Q.C., and Clare, for the appellant.
North, for the official liquidator.
Crossley, for the two directors.

THEIR LORDSHIPS said that it was a very hard case on Mr. Cartmell, but the directors could not, under the constitution of the company, delegate to the manager the power to buy shares for the company. Nor did it appear that they had been informed of, or had ratified, the purchase. The shares were, therefore, not purchased for the company, nor were they purchased by the two directors, who knew nothing about it. The appeal must be dismissed with costs.

Solicitors: Clarkson, Son, & Co.; Sharpe, Parker, & Co.

M. R.

BROWNE v. RADFORD. May 25. Express Trust-Acquiescence- Statute of Limitations (3 & 4 Wm. 4, c. 27), ss. 25, 27.

Robert Revell by his will, dated the 26th of October, 1729, devised his real estate to four trustees, their heirs and assigns, in trust by leasing, mortgaging, or selling, to raise so much as would be necessary for the payment of his debts, legacies, and funeral expenses, which should not be satisfied out of his personal estate, and after the said trusts performed, the testator

devised the premises, or so much thereof as should remain unsold and undisposed of, unto the said trustees, their heirs and assigns, upon the further trusts and uses thereinafter mentioned, being to the use of F. Revell, his daughter, for life, remainder to her first and other sons successively in tail male, remainder to his brother T. Revell for life, remainder to his first and other sons successively in tail male, remainder to E. Revell for life, remainder to his first and other sons successively in tail male, and for default of such issue, then to the use of the person who was at the date of the will the heir male descended from Sir Thomas Revell theretofore (to wit, in or about the reign of Edward I.) of Newbould in the county of Warwick, and his heirs for ever. Robert Revell died on the 9th of January, 1731.

The bill contained allegations to the effect that the devises in the will prior to the ultimate devise in favour of the heir male of Sir Thomas Revell all became exhausted in 1770, and that thereupon the surviving trustee of the will conveyed the estate to the predecessor in title of the defendant, and that neither the defendant nor any of his predecessors in title had ever given any valuable consideration; and that the plaintiff was the person now entitled under the ultimate devise; and it prayed that the defendant might be declared a trustee of the property for the plaintiff, and might be decreed to convey the same to him and to account for the rents and profits.

It appeared from the bill that the plaintiff became aware of his rights in 1857.

M. R.

FOXON v. GASCOIGNE. May 29. Solicitor's Lien-Charge on Property recovered or preserved-Bill to restrain Injury to Ancient Lights-Dismissal of Bill—23 & 24 Vict. c. 27, s. 28.

The bill in this suit was filed to restrain the defendant from building a house so as to interfere with certain ancient lights to which the plaintiff claimed to be entitled. The bill prayed for a mandatory injunction, and a motion was made in the suit accordingly; but was ordered to stand to the hearing of the cause upon the defendant undertaking not to carry the walls of the motion, and not to erect a roof at a greater angle than forty-five house to any greater height than they were at the date of the degrees from the horizontal. Subsequently the defendant became bankrupt; his trustee appeared by another solicitor, and entered into a compromise, under which the bill was dismissed. The house was afterwards sold to a purchaser.

asking that he might be declared entitled to a charge on the A petition was now presented by the solicitor of the defendant

house for the costs due to him.

Ince, for the petitioner.

Macnaghten, for the trustees in bankruptcy.
North, for the purchaser.

Fry, Q.C., and Rodwell, for mortgagees under the purchaser. THE MASTER OF THE ROLLS held that the purchaser had bought with notice of the petitioner's claim, but that no property had been recovered or preserved within the meaning of the Act, and dismissed the petition against the purchaser without costs. As regards the trustee in bankruptcy, he had neither retained the petitioner, nor was he now entitled to the property; and as to the mortgagees, they had no notice of the petitioner's claim; and the petition must be dismissed as against them, with costs.

Solicitors: E. B. Tattershall; Doyle & Edwards; Wilkins.