SMITH V. LONDON AND SOUTH WESTERN RAILWAY COMPANY. Railway Company-Negligence-Fire from the Railway communicating to Property near the Line.

The defendants' servants cut the grass and trimmed the hedges on the banks of the railway, and placed the cuttings in heaps. These heaps became ignited by sparks from a passing engine, and being, in consequence of the length of time they had been exposed (about fourteen days), and the extreme heat and dryness of the weather, very inflammable, the company's servants were unable to extinguish the fire, and it passed through the hedge, over a stubble field, and an intervening public road, and communicated to a cottage about 200 yards from the line, and destroyed the plaintiff's furniture therein. A verdict having been found for the plaintiff:

Upon a rule to enter a nonsuit or a verdict for the defendants, on the ground that there was no evidence of negligence on their part which ought to have been submitted to the jury: BOVILL, C.J., and KEATING, J., held that there was some evidence which the judge could not have withheld. BRETT, J., was of the contrary opinion.

Arbitration-Arbitrator's Decision on an Interlocutory Matter. Upon an appeal from a decision of this Court, the Exchequer Chamber desired to have a fact which was imperfectly stated in the case agreed upon between the parties to be re-stated. The fact to be ascertained was whether the indorsement on the bills

Mr. Prentice, conceiving that this enactment did not enable him, sitting as an arbitrator, to receive the declaration of Mr. Bradlaugh, rejected his evidence.

The submission having been made a rule of Court, the plaintiff (after an unsuccessful application to Brett, J., at chambers) now moved for a rule directing the arbitrator to receive his evidence. The 9 & 10 Wm. 3, c. 32, s. 1; the 3 & 4 Wm. 4, c. 32, s. 41; the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 20; the 14 & 15 Vict. c. 99, s. 16, and the cases of Metcalf v. Parry (3 Dowl. 94) and Nicholls v. Warne (2 D. & L. 549), were referred to.

THE COURT held that they were precluded from entertaining the application by the general principle that the parties to a reference, having chosen their own tribunal, are bound by the decision of the arbitrator as well on matters of law as on matters of fact; and the rule was refused. Mr. Bradlaugh in person.

Ex.

WIGHT v. HITCHCOCK AND ANOTHER. Jan. 11. Patent-Construction-Infringement by Buying and Selling. Action for infringement of a patent.

The plaintiff's patent was for the invention of a process for plaiting fabrics by means of a "reciprocating knife," but it was described in the specification as used in combination with a sewing machine, by means of which the fabric, as it was plaited, was fixed in its place by stitches. The claim also contained a reference to the sewing machine. Orr took the plaintiff's invention so far as concerned the use of the reciprocating knife, but did not use the knife in combination with a sewing machine, and did not produce a result entirely similar in form to that indicated in the plaintiff's patent; and for the process so varied (with some other slight variations) he took out a patent. Articles manufactured according to Orr's patent were bought and sold by the defendants in the way of trade, but the defendants were not aware at the time of so buying and selling that there was an infringement, or that the plaintiff had any patent.

Objections were taken to the validity of the patent on the construction of the specification and claims.

The jury found for the plaintiff on the question of novelty and infringement, leave being reserved to the defendants to move to enter the verdict for them.

A rule having been obtained accordingly, on the ground that there was no evidence of infringement, and that the patent was bad:

Grove, Q.C., Webster, Q.C., and Aston shewed cause. Manisty, Q.C., and Macrory supported the rule. THE COURT (Kelly, C.B., Martin, Channell, and Pigott, BB.) disof exchange sued on took place in Paris or in London. The charged the rule, holding that the combination of the use of the counsel being unable to agree, it was referred to Mr. Pren-knife with the sewing machine was no part of the plaintiff's tice, Q.C., to decide the point. The parties attended before him, patent; that the patent was a good patent for the peculiar mode and, the plaintiff offering himself as a witness, it was objected of plaiting or crimping fabrics described in the plaintiff's specifithat he was not competent, by reason of his peculiar tenets, to be cation-namely, by means of a reciprocating knife, and not for sworn. The plaintiff submitted that, before he could be objected the form of the product; and that there had been an infringeto as incompetent, it was incumbent on the party objecting to ment of the patent by the defendants in buying and selling articles prove his incompetency on the voir dire. manufactured by Orr's process.

Being pressed, the plaintiff (who did not refuse to take the oath) admitted that he did not believe in the Deity or in a future state of rewards and punishments; and he claimed the benefit of the 4th section of the 32 & 33 Vict. c. 68, which enacts that, "if any person called to give evidence in any court of justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following prom se and declaration:-'I solemnly promise and declare that the evidence given by me to the Court shall be the truth, the whole truth, and nothing but the truth;' and any person who, having made such promise and declaration, shall wilfully and corruptly give false evidence, shall be liable to be indicted, tried, and convicted for perjury, as if he had taken an oath."

Ex.

Attorney for plaintiff: J. H. Johnson.
Attorney for defendants: J. N. Mason.

HEUGH AND ANOTHER V. LONDON AND NORTH Jan. 12. WESTERN RAILWAY COMPANY. Carriers-Refusal of Goods by Consignee-Involuntary Bailee. Action brought by the consignors of goods by the defendants' line from Manchester to London, to recover damages from the defendants for delivering the goods to a person who obtained the delivery by fraud after the goods had been forwarded to the consignees' address and there refused. The goods were sent by the plaintiffs upon an order purporting to come from the Southwark

TABLE OF CASES.

This was a suit by a contractor to recover from the Local Board of Health at Shipley the balance of his claim for building a reservoir. The original contract was for 6500., of which 5000%. had been paid, and the contractor claimed a further sum of about 73001. for the balance and for extra work.

The defence was that the work had been badly done, and that one of the walls had consequently fallen down and had been rebuilt.

The Vice-Chancellor Stuart had made a decree in favour of the plaintiff, and the defendants appealed.

Sir R. Palmer, Q.C., Fry, Q.C., and G. Hastings, for the appellants.

Pearson, Q.C., Eddis, Q.C., and Dixon, for the plaintiff. THE LORD CHANCELLOR said that nine-tenths of the bill was unfounded. The plaintiff had contended that the calculations were wrong, and that the work, as specified by the contract, could not stand, and had produced evidence to that effect. But the simple answer to that was, that if it was so, as a contractor he should have seen this, and should not have entered into the contract. The only matter as to which His Lordship had entertained any doubt was as to one particular wall, which had fallen down and been rebuilt at an expense of about 2007. or 2007.; and as to that His Lordship, on the evidence, was of opinion that the plaintiff was in the wrong. The bill must be

dismissed with costs.

sell and collect his real and personal estate in England, and to invest the proceeds in trust for him. In 1858 and 1859 the defendants realised a considerable sum of money under the power, which they paid into the London and Westminster Bank to the account of Messrs. Monckton & Co., of which firm the defendant Monckton was a member.

In November, 1859, P. E. Garrick died in America, leaving the plaintiff, his widow, surviving, who afterwards married again. She took out administration to her late husband in 1867, and in 1868 filed the present bill by her next friend, making her present husband a co-defendant, praying for an account of the dealings and transactions between the defendants and her late husband. The defendants set up the defence of the Statute of Limitations. The Vice-Chancellor was of opinion that the defendants were not only agents but trustees, and that the Statute of Limitations was no bar to the suit; and he directed an account to be taken, and the defendants to be charged with interest at 5 per cent, with half-yearly rests on all moneys received by them under the power.

The defendants appealed.

Dickinson, Q.C., and G. W. Collins, for the appellants.
Greene, Q.C., and Hanson, for the plaintiff.
Higgins, for the plaintiff's husband.

THE LORD CHANCELLOR was of opinion that the defendants
were trustees as well as agents, and therefore that the Statute of
Limitations did not apply. They were not, however, chargeable
with compound interest on the sums received by them and paid
into their bankers, but with simple interest at 5 per cent.
decree must therefore be varied in that respect. The bill must
also be amended, making the plaintiff's husband a co-plaintiff.
Solicitors: Helsham; Monckton & Monckton.

The

Jan. 25.

L. C. & L. J. GIFFARD. GIBBS v. HARDING.
Husband and Wife-Deed of Separation-Specific Performance.
In this case a husband and the father of his wife had executed
an agreement, which was signed by the wife, that the husband
and wife should live apart, and that the husband should execute,
when required, a deed of separation, to contain all usual and
proper clauses. The Vice-Chancellor Stuart had decreed specific
performance of this agreement as against the husband (Law Rep.
8 Eq. 490).

The husband appealed.

Dickinson, Q.C., and W. W. Karslake, for the husband.
Greene, Q.C., and Bagshawe, for the respondents.

Renewable Leaseholds-Purchase of Reversion-Tenant for Life. THEIR LORDSHIPS said that the Court would not enforce an The question in this case was whether the Court would allow agreement for a separation deed where the agreement was volunthe trustees of a will to acquire from the Ecclesiastical Com-tary; but here the father was competent to contract, and agreed missioners the reversion of certain leaseholds of which there was a tenant for life, who objected to the purchase as diminishing his income. The estate to which the leaseholds belonged was the subject of an administration suit, and the Master of the Rolls refused to sanction the arrangement (Weekly Notes, 1869, p. 94). The trustees appealed.

Sir R. Baggallay, Q.C., and Bevir, for the appellants.
Jessel, Q.C., and Holmes, for the tenant for life.

THE LORD CHANCELLOR said that the Court could not approve of such a transaction, as it was unfair to the tenant for life. The appeal must be dismissed.

Solicitors: Wood, Street, & Hayter; Stuart & Massey.

that the deed should contain all proper clauses, and it must be
inferred that he was to be a party to the deed, and would cove-
nant to indemnify the husband against the debts of his wife.
Moreover, there was the agreement by the father to pay half the
costs. There must be a decree for a deed of separation to be
settled by the Court, and the appeal must be dismissed with
costs.
Solicitors: Few & Co.; W. Moon.

Ex parte GREAVES.
In re GREAVES.

well qualified; and the Master of the Rolls appointed Mr. Barrow, | L. J. GIFFARD.
stating that he thought the petitioner ought to nominate the
official liquidator.

Mr. Galsworthy appealed.

Sir R. Palmer, Q.C., Roxburgh, Q.C., and Graham Hastings, for the appellant.

Jessel, Q.C., Swanston, Q.C., and Higgins, for the respondents. THEIR LORDSHIPS held that no hard-and-fast rule could be laid down in these cases, and certainly not that the petitioner should nominate the official liquidator; but they did intend to lay down a rule that, in all contests for the office, none but the successful candidate should get his costs, and that his would be strictly as between party and party. In this case it appeared that the assets were far less than the liabilities, and therefore the shareholders had no interest in the matter. As regarded creditors, Mr. Barrow seemed to be supported by more than Mr. Gibbons; he had given security, and had entered on his office, and the appointment would not be disturbed. The appeal must be dismissed with costs.

Solicitors: Deane & Chubb; Mercer & Mercer.

L. C. & L. J. GIFFARD.

MOORE v. CRAVEN.
Exceptions-Materiality.

Jan. 22.

Bankruptcy Act, 1861-Creditors' Deed-Cancelling Registration

Jurisdiction.

This was an appeal by a debtor who had executed a deed of arrangement with his creditors, from an order of Mr. Commissioner Thring ordering the registration of the deed to be cancelled, and the certificate of registration to be revoked. De Gex, Q.C., and Reed, for the appellant. Little, Q.C., for dissenting creditors.

THE LORD JUSTICE GIFFARD held that the deed had not been duly assented to, and that the case was one where the registration ought to be cancelled if there was jurisdiction to do so. His Lordship considered, that as a registered deed was a substitute for bankruptcy, was in the nature of a record of the Court, and was made by registration something on which the Court could be called upon to act, there was jurisdiction to order the registration to be vacated. His Lordship did not consider that the Court would order registration to be cancelled in every case where a deed wanted the requisite assents, but that it ought to do so in the case of a fraudulent deed, to which the assenting creditors evidently had assented on the faith of its being a deed Jan. 26. which would bind all the creditors. Solicitors: Vizard, Crowder, & Co.

The bill in this case was filed by a manufacturer of machinery for an account alleging that the defendant was an agent, and had sold machines for the plaintiff; and the defendant was interrogated as to the names of the persons to whom he had sold machines. The defendant denied the agency, but admitted that he had disposed of machines made by the plaintiff, paying the plaintiff so much per pound weight; and the defendant, by his answer, refused to disclose the names of the persons to whom he

had sold the machines.

The plaintiff excepted to the answer, and the Vice-Chancellor Stuart allowed the exceptions.

The defendant appealed.

Dickinson, Q.C., and Rigby, for the defendant. Greene, Q.C., and Ince, for the plaintiff. THEIR LORDSHIPS said that the only general rules were that a defendant who answered must answer fully; but that, in considering the sufficiency of the answer, the Court would have regard to the materiality. Here the defendant admitted selling machines, and denied that he was an agent for the plaintiff; and, under these circumstances, the knowledge of the persons to whom the machines were sold could not assist the plaintiff in establishing the agency. Moreover, the defendant alleged that the discovery might be injurious to him, as the plaintiff was in the same business. The exceptions ought to be overruled. Solicitors: Johnson & Weatheralls; Edwards, Layton, & Jaques.

L. C. & L. J. GIFFARD.

EVANS v. BAGSHAW.
Partition-Reversioner—Amendment.

M. R.

Jan. 15.

GENERAL EXCHANGE BANK v. HORNER. Company-Director-Unauthorized Payment-Refunding. The General Exchange Bank was registered as a limited company in March, 1865. The articles of association contained a clause enabling the directors to amalgamate with or purchase the business of other companies of a like nature.

Between March and August, 1865, negotiations were carried on by one John Orrell Lever for an amalgamation between this company and another company called the Estates Bank, and these negotiations ultimately resulted in an agreement of the 9th of August, 1865, between the two companies, by which it was agreed, amongst other things, that the business and assets of the Estates Bank Company should be transferred to the Exchange Bank; and that Horner, the manager, and Hattersly and Caudwell, the chairman and vice-chairman of the Estates Bank, should become directors of the Exchange Bank. It was also agreed between Lever and the directors of the Exchange Bank that Lever should receive 5 per cent. on the subscribed capital of the Estates Bank by way of remuneration for his services; but out of this sum he was to pay all sums payable to directors and others as compensation for loss of office in the Estates Bank.

The agreement for amalgamation was sanctioned by the shareholders in the Estates Bank, and on the 17th of October, 1865, a resolution was passed by the board of directors of the Exchange Jan. 26. Bank authorizing Horner to pay the promised sum to Lever out of the assets of the Estates Bank; and he accordingly paid him 14,000. Of this sum Lever retained part for his own use, and the rest he paid to the directors of the Estates Bank (including Horner, Hattersly, and Caudwell), or applied it in purchasing fully paid-up shares for them in the Exchange Bank.

In this case the owners of a reversionary one-sixth in land filed a bill for a partition. They afterwards bought the estate of the tenant for life, and amended the bill accordingly.

The Master of the Rolls held that a partition suit could not be maintained by a reversioner, and that the defect could not be remedied by amendment; and dismissed the bill (Law Rep. 8 Eq. 469).

The plaintiffs appealed.

Sir R. Baggallay, Q.C., and Speed, for the plaintiffs.

W. Pearson, for the defendants.

The Exchange Bank was ordered to be wound up in 1866, and this bill was filed by the official liquidator in January, 1868, against Horner, Hattersly, Caudwell, and the directors of the Exchange Bank. The object of the suit was to compel them to refund the 14,000l. paid to Lever.

Roxburgh, Q.C., and Lindley, for the plaintiffs.

Southgate, Q.C., and Rotch, for Horner, Hattersly, and Caudwell.
Jessel, Q.C., and Caldecott, for five of the directors of the

THEIR LORDSHIPS agreed with the Master of the Rolls, and Exchange Bank. dismissed the appeal with costs.

Solicitors: Taylor, Hoare, & Taylor; Burt & Stevens.

Sir R. Baggallay, Q.C., and Cracknall, for the representatives of a deceased director.