1865. HAWKINS V. CARR. PARSONS V. CARR. The judgment of the Court was now delivered by LUSH J., who said the Court had ascertained on inquiry that it was the practice in Chancery to allow such interrogatories as these, and as the Court were anxious not to abridge the powers conferred on them by The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 51., the present interrogatories should be allowed, and consequently the rules discharged. On a subsequent day, application having been made relative to the costs of the rules, PER CURIAM (Cockburn C. J., Mellor, Shee and Lush JJ.) The general, and almost universal, rule is, that when an application against a Judge's order is discharged it is discharged with costs, but every rule is subject to exception, and the point in the present case was a very nice one. Rules discharged without costs. INDEX. ABANDONMENT. Notice of. See Insurance, Marine, IV. ACCEPTANCE. c. 98., having by sect. 68 repealed Of goods. See Bankrupt, VI., VII., contained in any reservoir, river or stream," in cases where any Company 1. That sect. 73 of stat. 21 & 22 Vict. junction against the Local Board, and that T. was in the position of a person who would, if the Act had not passed, ANIMAL. have been entitled by law to prevent Delivery of. See Company, Railway, I. the injuriously affecting the S. 2. That the works of the Local Board were not authorized by sect. 73, and therefore the claim of T. was not the See subject of compensation, but ground of action. The Queen, on the Prosecution of Thomas Taylor, v. The Darlington Local Board of Health, 562. II. A railway Company acting under the provisions of special Acts, which embodied The Railways Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20., constructed a railway crossing a highway on a level, and in compliance with ss. 46, 47 of that statute erected at the crossing sufficient gates, but did not employ persons to open and shut them. The plaintiff coming along the highway at night arrived at the crossing, and finding no person in attendance to open the gates proceeded to open them himself, and was injured in consequence held, per Cockburn C. J., Crompton and Shee JJ., dissentiente Blackburn J., that he had no right of action against the Company. Wyatt v. The Great Western Railway Company, 709. III. The declaration alleged that the defendant wrongfully altered and diverted a footway through land over which the public had a right of way, &c., whereby the plaintiff lawfully passing along the footway was injured: the county in the margin was Surrey. The footway was in Essex. Held, that the action was local. Richardson v. Locklin, 777. See also Checque. Composition Deed, I., III., IV., VI. Estoppel, II. Interrogatories. Petition of Right. ADMIRALTY. Contract by Commissioners of. See AFFREIGHTMENT. APPEAL. Metropolis Management. Quarter APPORTIONMENT. See Metropolis Management. APPREHENSION. Information leading to. See Information. ARBITRATION. I. An order of reference, with the enlargements of time for making the award endorsed on the order, may be made a rule of Court on an affidavit trator to the indorsements, and there verifying the handwriting of the arbineed not be an affidavit either by the arbitrator or by the attesting witness, if there was one, verifying the times when the enlargements were made. Roberts v. Evans, 1. II. On a motion to discharge a rule for making an order of reference with the enlargements of time indorsed thereon a rule of Court, the Court, under The Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125. s. 46., ordered the arbitrator to appear before the Master to be examined as to the time when the enlargements were made. Id. Charter of. See Foreign Law, III., IV. for the purpose of paying the dividends ASSESSMENTS, PAROCHIAL. of non-assenting creditors and creditors whose dividends had not been ascertained, the amount of which should be paid to them upon their request in writing: held, that this imposed no unreasonable condition on those creditors. Hernulewicz and others v. Jay, 697. See Composition Deed. ASSESSMENTS, PAROCHIAL. See Rate, Poor. ASSIGNMENT, INVALID DEED OF. See Bankrupt, I., II. ASSURANCE. See Insurance. ASYLUM. Lunatic. See Lunatic. Quarter Sessions, III. ATTORNEY. See Professional Misconduct. AUCTIONEER. I. In an action for the hire of land, let by the plaintiff to the defendant, it appeared that, by permission of the Corporation of O. and a committee of freemen, races were held annually on P. M. Common, the fee of which was in the Corporation, and on which the freemen had a right of depasturing cattle, and a committee, under whose management the races were, erected a temporary grand stand, and caused the land adjoining to it and part of the race course to be let by public auction for the erection of booths, stalls, &c. In 1864 the plaintiff, who was employed by the race committee, issued handbills announcing that" the ground for booths, stalls, &c., will be let by auction by Mr. J. F. on &c." The conditions for sale were headed "Conditions for letting standings for booths, &c., on P. M. during the races. By Mr. J. F." At the auction the defendant was declared the taker of one of the lots, and he took possession of and occupied it during the races. Held, 1. Per Blackburn and Mellor JJ., Shee J. dubitante, that there was evidence of a contract by the defendant with the plaintiff personally. 2. That an action for use and occupation was maintainable. Fisher v. Marsh, 411. II. A declaration alleged that the defendant, an auctioneer, published handbills representing that at a certain day and place he would offer certain premises for peremptory sale by public auction; that the plaintiff, confiding in those representations, attended at that time and place, whose bid was the highest except a sum bidden by an agent on the part of the vendor, but the defendant would not accept the plaintiff as a purchaser. It appeared in evidence that the handbills stated that on the day and place in question the premises would be offered by the defendant for peremptory sale by auction, by direction of the mortgagee with a power of sale, subject to such conditions as will be then declared. For further particulars apply to Mr. H., solicitor, or to the auctioneer." H. was the person who bought in the premises. Held, that no contract on which the defendant could be sued personally was proved. Mainprice v. Westley, 420. III. Semble, per Cockburn C. J. and Shee J., dubitante Blackburn J., that where an auctioneer, without disclosing his principal, advertises a sale without there shall be a sale without reserve. reserve, he personally contracts that Id. AVERAGE, GENERAL. See Insurance, Marine, IV. AWARD. See Arbitration. BAILEE AND BAILOR. See Estoppel, I, BALLOON. Trespass by. See Trespass by Balloon. BANKRUPT. I. Case against the defendant as under-sheriff, acting after the death of the sheriff, for an escape and false return. The declaration stated that a ca. sa. on a judgment recovered by the plaintiff against W. B. was on the 17th December, 1862, sued out and directed to the sheriff; that W. B., on the 16th December, 1862, entered into a deed of assignment, which was set out. That after the delivery of the writ an entry was made of the deed by the chief registrar of the Court of Bankruptcy in a book kept for such registration, and a copy of such entry was published in the Gazette, pursuant to the Bankruptcy Act, 1861. That by a certificate under the hand of the chief registrar and the seal of the Court, he certified that the deed was duly registered pursuant to the provisions of the Act, and that such certificate set forth the nature and effect of the deed; that the writ was delivered to the defendant, and he took W. B. and detained him in custody, but suffered him to escape and remain out of his custody until he re-arrested him, after which he again suffered him to escape, and made a false return that W. B. was entitled to protection from arrest under the writ by virtue of sect. 198 of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134. The declaration then alleged that the return was false, in that the defendant suffered W. B. to escape as first aforesaid, and that he re-arrested him and suffered him to escape upon the production of the certificate of the filing and registration of the deed, which certificate and deed were not within sect. 198; and that the plaintiff had not executed or assented to the deed. Third plea, to the first arrest, and so much of the declaration as related to it, that the defendant discharged W. B. out of his custody, and made such return to the writ upon the production by him of such certificate, which was set out, and at the foot of it was the following note: "This certificate is available to the said W. B. for all purposes as a protection in bankruptcy." The plea then averred that the deed was valid and binding on all the creditors of W. B. as if they had executed it. Fourth plea, to the rearrest and so much of the declaration as related to it, the same as the third plea. On demurrer to so much of the declaration as related to the re-arrest, and on demurrer to the pleas: (1.) Held, per Crompton, Mellor and without damage was not a substan- (3.) Concessum, that the breach for the second escape was not a cause of action. (4.) Semble, per Crompton J., that the statement in the plea that the deed was valid did not make the plea bad. Lloyd v. Harrison, 36. II. Semble, per Mellor J., that the Court of Bankruptcy have power to cancel the registration of an invalid deed. Id. III. Quære. Whether the registration of a deed by the registrar of the Court of Bankruptcy, under the Bankruptcy Act, 1861, 24 & 25 Vict. c. 134. s. 198., is a judicial or ministerial act? Id. the eve of bankruptcy, out of a fund IV. A payment made by a debtor on which would otherwise be distributable among his creditors, without a demand by the particular creditor, is not necessarily a fraudulent preference. Bills and another, assignees of W. Smith, v. C. Smith, 314. V. In an action by the assignees of a bankrupt to recover back a sum of money alleged to have been paid by way of fraudulent preference, the Judge left to the jury as a question of fact whether at the time of the payment to the defendant bankruptcy was contemplated |