TABLE OF CASES. House of Lords. SECRETARY OF STATE FOR INDIA v. UNDERWOOD. WEST V. HOLMESDALE (Shifting Clause-Patent of Peerage-Will [Common Law. 139 of her sister, the Countess de la Warr, for life, remainder to C. R. Sackville West, the Countess de la Warr's eldest son, and his heirs in strict settlement, remainder to Mortimer S. West, her third son, and his heirs in strict settlement, and so on. In April, 1864, the Queen granted to the Countess de la Warr the barony of Buckhurst, with remainder to her second son, Reginald PAGE West, and the heirs male of his body, and in default to the 139 countess' third, fourth, and other sons, and the heirs male of 139 their bodies, in the usual course. The letters patent contained a proviso, or shifting clause, to the effect that if any person taking under them should succeed to the earldom of de la Warr, and there should on the occurrence of such an event be any other younger son, or an heir male of such younger son, the honour of the barony of Buckhurst should devolve upon such younger son or his heir male, as if the person so succeeding to the earldom of de la Warr was dead without issue male. On the 3rd of May, 1864, the Countess Amherst made a codicil to her will, in which codicil she recited that part of her will in which Knole and the personalty connected therewith had been devised, and recited also the grant of the barony of Buckhurst, and her own intention to settle the Knole estate, &c., in favour of the Baroness Buckhurst and her second son Reginald and his heirs, &c., " in a course of settlement to correspond as far as may be practicable with the limitations of the said barony of Buckhurst ;" (including the shifting clause) and she then, revoking the former particular devises in the will, made a devise to trustees of freeholds, copyholds, effects, &c., in exact accordance with that declared intention. 140 141 140 BRADLAUGH. DE RIN (Foreign Bill-Indorsement in Blank - 140 142 142 142 142 A bill was filed by the trustees for directions how to carry the devise in the codicil into effect. An order for preparing a settlement was made, and a form was prepared, and was discussed in court. The Vice-Chancellor declared his opinion that Lady de la Warr took a legal estate for life under the codicil; that the limitations of the settlement must follow those of the letters patent; that the chattels and personalty must be limited so as to go with the real estate as far as practicable; that the shifting clause in the settlement should follow that in the letters patent; and that the revocation of the devise to uses in the will, and the gift to new trustees for limited purposes, defeated the old uses. This was an appeal against that decision. Sir R. Palmer, Q.C., Eddis, Q.C., and F. Leigh Pemberton, for the appellants, the younger children of Countess de la Warr. Jessel, .C., Wickens, and Charles Hall, for the different respondents. THE LORDS were divided in opinion, the Lord Chancellor thinking that the decree of the court below ought to be affirmed, the other Lords thinking it ought to be varied in form, for that otherwise it would not carry into effect the intention of the testatrix. A special declaration as to the form of the settlement was proposed by Lord Cairns and adopted by the House. Solicitors for the appellants: Pemberton, Meynell, & Pemberton. Solicitors for the various respondents: Nicholl, Burnett, & Newman; Cope, Rose, & Pearson; Freshfields. Madras Civil Service Fund, was declared to have a claim to a refund of the sums which (while a subscriber) he had paid in excess of what was absolutely required as a consideration for the retiring pension which that fund had been instituted to secure. The question depended on the effect to be given to a large body of correspondence between the directors of the East India Company, on the one hand, and the managers of the fund, on the other, and especially on the effect of certain resolutions adopted at a meeting of the subscribers to the fund held in June, 1853. Sir R. Palmer, Q.C., Forsyth, Q.C., and E. Macnaghten, for the appellant. Anderson, Q.C., Huddleston, Q. C., and Steele, for the respondent. THE LORD CHANCELLOR thought that the decree ought to be affirmed, for that there had been a completely settled arrangement between the directors of the company and the managers of the fund, and that no power existed in the former, directly or indirectly, to change it. The other Lords were of opinion that the change had been made in a proper and legal manner, and must have full effect given to it. Sale by Auction-Action by Auctioneer for Price of GoodsAgreement between Purchaser and Principal - Payment by Auctioneer to Principal. The plaintiff, an auctioneer, was employed by W. to sell certain goods by auction. W. was indebted to defendant in about 60%., and it was agreed between W. and defendant that any goods defendant should buy at the auction should go in payment of his claim against W. The plaintiff had no notice of this agreement at the time of the sale. The defendant bought several lots, to the amount of 491., and the plaintiff allowed him to take them away on the faith of his paying for them, but the defendant supposed that he was taking them in pursuance of the agreement with W. The day after the sale the plaintiff paid W. 901. on account of the sale. Afterwards the defendant informed plaintiff of the agreement between defendant and W.; and after this notice the plaintiff, on the demand of W., paid over to him the balance due on the sale, about 100%., after deducting his, the plaintiff's, commission and charges as auctioneer. The plaintiff then sued the defendant for the amount of his purchases at the sale. The plaintiff having obtained a verdict, Feb. 11. R. G. Williams (J. S. Will with him) for the defendant. Hance, for the plaintiff. May 14. THE COURT (Mellor, Lush, and Hannen, JJ.) held that the defendant was entitled to the verdict. By the terms of the original agreement between the defendant and W., before the sale, the defendant was entitled to have the goods without payment, and the plaintiff's charges in respect of the goods had been satisfied before action. The plaintiff, therefore (if he had not already paid over the amount), would have been bound to pay over the whole proceeds recovered in this action to W., who, by the agreement, was not entitled to anything. The facts, therefore, which shewed that W. would not be entitled to recover, established a defence to the action by the plaintiff. The fact that the plaintiff gave up the goods on the faith of the defendant paying for them created no liability in the latter, as he had been guilty of no deceit, and there were no facts beyond the mere receipt of the goods from which a promise on the part of the defendant to pay could be inferred. And the fact that the plaintiff had paid W. the price of the goods could not affect the defendant's rights, as the plaintiff had then had notice of the agreement between W. and the defendant. Attorneys for plaintiff: Parker, Rooke, & Parkers. Attorneys for defendant: Johnson & Weatheralls, for Grocott, Liverpool. C. P. COCKLE v. SOUTH EASTERN RAILWAY COMPANY. May 12. Practice-Appeal-Rule for New Trial dropped, the Court being equally divided. Upon a rule for a new trial, in the case of a railway accident, on the ground that there was no evidence of negligence on the part of the defendants, and that there was evidence of contributory negligence on the part of the plaintiff, the Court being equally divided, but being desirous that the defendants should have an opportunity of appealing, it was proposed that the junior judge should withdraw. This, however, was objected to on the part of the plaintiff, inasmuch as it would impose upon her the onus of being appellant, and so deprive her of a material advantage. After some discussion, Copyhold-Lord's Fine-Payment to the Deputy Steward. The Court below, Byles, J., dissenting (Law Rep. 4 C. P. 580), held that a payment by a copyholder of the lord's fine, the steward's fees, and his own charges to a deputy-steward appointed for that turn only to take the admittance out of court, by a crossed cheque (which was duly paid by the drawer's bankers, but the proceeds of which, in consequence of the deputy-steward's account at his bankers being overdrawn, were retained by the latter), was not a payment to the lord, so as to support a plea of payment in an action brought by him for his fine. THE EXCHEQUER CHAMBER reversed their decision. Foreign Bill-Indorsement in Blank-Code de Commerce. The Court below (Law Rep. 3 C. P. 538) held that an indorsement in blank made in Paris, inasmuch as it transmitted no title to the indorsee, did not enable him to sue upon the bills in his own name here. THE EXCHEQUER CHAMBER reversed their judgment, holding that the true construction of Art. 187 of the Code de Commerce, as expounded by the French jurists, was that the only effect of the blank indorsement was to entitle the party sued on the bills to set up against the indorsee any equities he might have as eastward on the river Thames, and were bounded by a wall, along against the indorser. Lumley Smith, for the plaintiff. C. W. Wood, for the defendant. Attorneys for plaintiff: Heath & Parker. Ex. Ch. from C.P. HEILBUT AND OTHERS v. NEVILL. Bankrupt-Fraudulent Preference-Money had and received. The judgment of the Court below (Law Rep. 4 C.P. 354) was affirmed in the Exchequer Chamber, on the ground that whatever difficulty there might be in the assignees of the bankrupt partner (Spill) suing in trover for the bills without a previous demand, there could be no obstacle to their suing jointly with the solvent partner for the proceeds of the bills as being money had and received to their use. Ex. Prentice, Q.C. (Barnard with him), for the plaintiffs. Attorney for defendant: George Brown. LORDS OF ROMNEY MARSH v. TRINITY HOUSE. - the whole length of which, at high water, the river flowed. In this wall was a gate, usually kept locked, leading from the garden of the house to a causeway which ran out into the river to lowwater mark. The causeway was, and for more than forty years had been, exclusively used by the plaintiff for landing from the river various articles of household use, and for other purposes. The defendants (The Metropolitan Board of Works), in 1863, commenced the construction of an embankment of the Thames, May 17. from Westminster to Blackfriars Bridge, under the powers given them by the Thames Embankment Act, 1862, and in the course of working they removed the plaintiff's causeway, and a landingplace connected with it, and entirely shut off the plaintiff from direct access to the river. Where the water had formerly flowed a solid embankment, destined for a public highway, was constructed. The plaintiff thereupon gave the defendants, under the Lands Clauses Act, 1845, notice of arbitration and claim for compensation, stating in his notice that he was owner of the causeway as lessee thereof, and entitled as such lessee to the use and enjoyment of the landing-place, and of the easements, rights, and privileges belonging thereto and connected therewith, and claiming compensation for the removal of the causeway and landing-place, and for the depreciation in value of his house and lands, and otherwise injuriously affecting them. The arbitrators referred the question of the amount of compensation payable to an umpire, who eventually awarded 83257. to the plaintiff "as and for compensation for the interest of the Duke of Buccleuch (the plaintiff) in the said causeway, pier, or jetty, and for shutting May 11. up the said landing-place, and for damage by the depreciation of the said house, &c., by the otherwise injuriously affecting the same by the execution by the said board (the defendants) of the said works, and by the exercise of the powers of the said Act." The award was good on the face of it. Special case in an action for negligence, which stated the following facts:The defendants were owners of a pilot cutter in charge of a captain and crew who were their servants. On the 30th of November, 1867, the cutter, through the negligence of her captain and crew, struck a shoal of sand about three-quarters of a mile off the Dymchurch wall, a sea dyke protecting Romney Marsh, and owned by the plaintiffs. The weather being bad, with a high wind and a flood tide, the captain and crew lost control of the vessel; which gradually drifted towards the shore, and was at last driven on to the wall, doing the damage for which the plaintiffs sued. The case was argued in Hilary Term by Sir G. Honyman, Q.C. (Biron with him), for the plaintiffs, and by Pollock, Q.C., for the defendants. KELLY, C.B., now delivered the judgment of the Court, in favour of the plaintiffs, holding that the negligence of the defendants' servants was the causa causans of the injury, notwithstanding that the case found the injury would not have occurred if the weather had been moderate. Attorneys for plaintiffs: Austen, De Gex, & Harding. DUKE OF BUCOLEUCH v. METROPOLITAN BOARD OF WORKS. Award-Admissibility of Umpire's Evidence—Injurious Affection The plaintiff was lessee of the Crown for the residue of a term of ninety-nine years from January, 1855, of a house and premises at Whitehall, together with all ways, easements, and appurtenances whatsoever thereto belonging, or "therewith or with any part thereof held, used, occupied, or enjoyed or accepted, reputed, deemed, taken, or known as part or parcel thereof." Until the execution of the works hereafter mentioned the premises abutted At the trial of an action on the award the umpire was examined on behalf of the defendants as to the mode in which he had arrived at the sum awarded. He stated that, amongst other items, he had given 50007. for depreciation of the premises in value, and that in fixing that amount he had taken into consideration the loss of privacy and "amenity" which the plaintiff had sustained through the defendants' works. A verdict was entered for the plaintiff for the full amount claimed, with leave to move to enter it for the defendants. A rule was obtained accordingly, and subsequently discharged by the Court of Exchequer, who unanimously held the plaintiff entitled to recover, Kelly, C.B., Martin and Channell, BB., being of opinion that the umpire's evidence was admissible, and that it confirmed the award, and shewed that he had only included in it proper subjects of compensation; and Bramwell, B., thinking that the umpire's evidence was inadmissible, and that the award, being good on the face of it, ought to stand unimpeached, but expressing a doubt on the question whether the compensation for loss of privacy and amenity was properly given, and whether therefore the umpire's evidence, if admissible, would not have vitiated the award. Against this decision there was an appeal, which was argued on the 5th of July, 1869, by Hawkins, Q.C. (Philbrick with him), for the appealing defendants, and by Mellish, Q.C. (Lloyd, Q.C., and Kemplay, with him), for the plaintiff. May 19. THE COURT gave judgment. They were unanimously of opinion that the umpire's evidence was admissible, but they (Blackburn, Keating, Mellor, and Lush, JJ., Willes, M. Smith, and Brett, JJ., dissenting) considered that he had exceeded his authority in giving compensation for loss of amenity and privacy and general depreciation of the premises in pecuniary value, and upon the plea raising this question they accordingly reversed the judgment of the Court of Exchequer. Attorneys for plaintiff: Nicholl, Burnett, & Newman. C. C. THE QUEEN v. ELIZABETH BROWN. May 7. Evidence-24 & 25 Vict. c. 100, s. 60-" Secret Disposition of Dead Body of Child." Indictment under s. 60 of 24 & 25 Vict. c. 100, for endeavouring to conceal the birth of a child by secretly disposing of the dead body thereof. The evidence was, that the prisoner put the dead body of her child over a wall, near which it was found. The wall was four and a half feet high, dividing a yard from a field. The yard was at the back of a public-house, and was used by the occupiers of that and three other houses. There was no thoroughfare into or through the yard, and no other entrance to it than by a narrow passage from the street. The prisoner, who did not live at any of the four houses that used the yard, must have passed from the street into the yard in order to throw the body over the wall. A person looking over the wall into the field from the yard would see the body, but persons going through the yard or using it in the ordinary way would not see the body. The field was used by a butcher for grazing. It had no gate into it except from the butcher's yard. There was no public path through the field, and no path that would take any one within sight of the body. No person going into the field in their ordinary occupation would go near the body or see it. No one in the field would see it unless they went up to the part of the wall where the body lay. The body was found by chance by a child. The body had nothing on or over it, and there was nothing to conceal it except its situation. The prisoner was found guilty. The question was, whether there was any evidence of a "secret disposition" of the body within the meaning of s. 60 of 24 & 25 Vict. c. 100, which enacts that "If any woman shall be delivered of a child, any person who shall by any secret disposition of the dead body of the said child. . . . endeavour to conceal the birth thereof shall be guilty of a misdemeanour." No counsel appeared for the prisoner. THE COURT (Bovill, C.J., Willes, Byles, and Hannen, JJ., and Cleasby, B.) held that there was evidence to go to the jury of a secret disposition of the body. Conviction affirmed. Attorney for prosecution: G. Knox, for Sanderson, Berwick. Will in India-Copy thereof referred to and confirmed in Codicil— Incorporation of Copy. The deceased, formerly of Futtyghur, East Indies, an indigo planter, died at Aberfeldy, Perthshire. He executed a will, dated the 7th of November, 1865, in which he named executors. This will was deposited by the deceased at the Bank of Bengal, and still remains there. On the 21st of August, 1869, when in Scotland, the deceased executed a paper, which commenced, "This is a colicil to the last will and testament of, &c., and of which will I, along with this codicil thereto, execute a copy, and homologate and confirm the same in all particulars, except so far as altered or revoked by this codicil." He nominated two executors for England and the island of Jersey conjointly with the executors named in his will, and finally ratified and confirmed his said will. At the time of the execution of the codicil the which he informed them was a copy of his will. This copy, as deceased produced and shewed to the witnesses a document, also the codicil, he afterwards delivered to one of the executors for England. There was a memorandum at the foot of the copy stating it was the copy referred to in the codicil. Inderwick applied for probate of the codicil and of the copy will as incorporated in it, without waiting to obtain the will from India. LORD PENZANCE:-In this case there is a codicil which refers to a paper in terms sufficiently distinct to enable the Court to ascertain with certainty that it means the copy will; the copy, therefore, is incorporated with the codicil, and I can grant probate of it. By taking this course much trouble may be saved in getting the original will from India. Attorneys: Thomas & Hollams. P. & M. Miss Hill died in Newcastle County, State of Delaware, America, in the year 1864. She made a will, in which she named her father, Thomas Finnimore Hill, sole executor and residuary legatee. He proved her will in America, and died in December, 1869. His executors, Maria Frances Anderson, William McCouch, and Horatio Gates, all domiciled in America, proved his will there, and letters of administration of the estate of Miss Hill, left unadministered by her father, have been granted in America at the request of the executors of the father, to the Reverend George Washington Anderson. In consequence of the death of Mr. Hill some property in this country has become divisible amongst his children, and a representation to the deceased Miss Hill becomes necessary. The executors of Mr. Hill have executed a document, in which they request that the grant in this country may be made to the Rev. G. W. Anderson. Dr. Spinks, Q.C., moved accordingly. LORD PENZANCE:-In this case the property to be administered forms part of the estate of the father, who is residuary legatee in his daughter's will, and, according to the practice of this Court, THE BANKRUPTCY REPEAL AND INSOLVENT COURT ACT, 1869. 32 & 33 Vict. chap. 83, sect. 15. RULE OF COURT. close of an insolvency is made by the provisional and official assignee IT IS ORDERED, that where application to the Court for postponing the by reason of any insolvent debtor being under contempt of court, or being under obligation to make or having omitted to make any payment in pursuance of any order or proposal under his insolvency, or upon any other grounds, there shall be filed, instead of the affidavit mentioned in Rule 30, a certificate by the aforesaid officer or the assistant receiver setting forth the grounds for such application. A copy of the order, if any, made on such application, must be served on the insolvent debtor or his representative, and any other parties intended to be bound or affected thereby, in such manner as the judge shall direct, and thereon proceedings shall be taken as in Rule 30. M. R. M. R. 144 144 143 ANSTEY. NEWMAN (Administration-Real Estate-Marshalling - V.-C. J. WELLER v. FITZHUGH (Trustee-Costs of Suit-Trustee Relief Act) M. R. Common Law. GREENWICH BOARD of Works v. MAUDSLAY AND OTHERS (Sea-wall -Right of Way along) a 144 144 145 144 Q. B. 146 146 PATTEN v. HUMPHREYS (Action for Reward - Knowledge by Plaintiff of Advertisement) Ex. REGINA v. COMMISSIONERS OF SEWERS OF THE CITY OF LONDON (Erection of Hoard in City of London-Licence of Commissioners-City of London Sewers Act, 1848 11 & 12 Vict. c. clxiii.), 88. 162-164) Q. B. 145 TIMSON (GEORGE), In re (Rogue and Vagabond-1 -Frequenting Highway with intent to commit a Felony-5 Geɔ. 4, c. 83, 8. 4) Ex. 146 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 THE LAW REPORTS. House of Lords. May 20. MILLER, APP.; LEARMOUTH et al. RESPS. Post-nuptial Settlement-Subsequent Bankruptcy-Legitim. This was one of the numerous cases which arose out of the deplorable collapse of the Scottish Western Bank. The facts, shortly, were, that Alexander, who for about thirty years had been proprietor and manager of the Glasgow Theatre, died on the 15th of December, 1851, leaving real and personal property, the result of his successful stage administration, amounting to nearly 55,000, and thereupon his daughter, Mrs. Finlay, became entitled to legitim. The question was, who had right to claim this legitim, Mrs. Finlay's husband having made, when solvent, a post-nuptial settlement, but having afterwards become a bankrupt. The claim on the one hand was advanced by the above respondents as trustees under the post-nuptial settlement, and on the other by the above appellant as trustee for the creditors. The Court of Session gave judgment in favour of the trustee under the post-nuptial settlement; and hence this appeal. Sir Roundell Palmer, Q.C., and Mr. Mellish, Q.C., were heard for the appellant. No. 19.-1870. A petition was presented by Mr. Watt, an advocate in Aberdeen, to Mr. Thomson, who is sheriff of the county, for an interdict. The application was orally refused; whereupon Mr. Watt 1id his hands on the petition and carried it away, notwithstanding the remonstrances of the judge, who afterwards issued an order for immediate restoration of the document, which, although having been made the subject of merely oral adjudication, was the property of the court as part of its judicial proceedings. A warrant was issued for Mr. Watt's apprehension, and he was imprisoned; but being soon liberated he brought an action of reduction and for damages against the sheriff, and against the sheriff clerk, and the sheriff clerk depute; charging them with malice in the execution of their office. The Court of Session decided that the acts for which damages were claimed against the sheriff were judicial, and they dismissed the action in so far as he was concerned. But with respect to the sheriff clerk and the sheriff clerk depute, they directed the Lord Ordinary to proceed with the cause; these two functionaries not being deemed judicial, and the case against them being one not yet ripe for decision. Mr. Watt appealed to the House, having for his counsel Sir John Karslake, Q.C., and Shiress Will. The Respondent, Mr. Thomson, was represented by Sir R. Palmer, Q.C., and Mellish, Q.C. The sheriff clerk and sheriff clerk depute also appealed, and were supported by the Lord Advocate (Young, Q.C.), and J. T. Anderson. The respondents' counsel were Sir John Karslake, and Shiress Will. The decision of the court below was affirmed in toto; and both appeals were dismissed the House with costs. Solicitors for the Appellants: W. M. Hacon, and Burchells. Solicitors for the Respondents: Simson & Wakeford, and W. M. Hacon. Equity. M. R. CORPORATION OF EXETER v. EARL OF DEVON. May 26. Navigable River-Pier-Nuisance-General Pier and Harbour Act (24 & 25 l'ict. c. 45). This was a suit by the Corporation of Exeter against the Earl of Devon and the Exe Bight Oyster and Pier Company, to restrain the defendants from proceeding with the erection of a pier in the river Exe. The plaintiffs claimed to have been created conservators of the river by a public Act of Parliament passed in the 31st year of the reign of Henry VIII. The Earl of Devon claimed to be owner of the foreshore of the river, and had granted a lease of the locus in quo to the defendant company, by whom the pier was being erected in pursuance of a provisional order made by the Board of Trade under the General Pier and Harbour Act, 1861 (24 & 25 Vict. c. 45), and the Amendment Act of the following year (2) Vict. c. 19), which provisional order had been confirmed by the Act of Parliament 27 & 28 Vict. c. 93. The plaintiffs alleged that under the provisions of the General Pier an | Harbour Acts and the provisional order, the defendant company were not entitled to make the pier in question without their co sent, which had not been obtained. |