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NEWCASTLE (DUKE OF) v. MORRIS (Bankruptcy-Peerage)

Equity.

197

ATHERTON V. BRITISH NATION ASSURANCE COMPANY (Staying Pro198

ceedings pending Appeal-Money in Court). L. J. James
BOWER, In re (Practice-Leases and Sules of Settled Estates Act
-Order XLI. Rule 20)
V.-C. B.
BOURTON v. WILLIAMS (Mortgagor and Mortgagee-7 Geo. 2, c. 20
-Payment of Mortgage Debt into Court L. C. & L. J. Jumes
BRADFORD NAVIGATION COMPANY, In re (Winding-up_Petition—
Locus Standi of Respondents)
L. J. James
DONALDSON V. DONALDSON (Apportionment of Interest, Dividends,
and Income-4 & 5 Wm. 4, c. 22)
V.-C. B.
GRAHAM, AN INFANT, In re (Infant-Ward of Court-Order for
Maintenance without Suit)

V.-C. M.

MULLINGS v. TRINDER (Vendor and Purchaser-Specific Perform ance-Doubtful Title)

M. R.

V.-C. M.

PIERCY'S CASE. In re WYNN HALL COAL COMPANY (Company —
Contributory-Forfeiture of Shares)
TEMPEST, Ex parte. In re CRAVEN AND MARSHALL (Bankruptcy—
Fraudulent Preference-Bankruptcy Act, 1869, 8. 92) BANKCY.
TURNER V. CLIFFORD (Practice-Application for Sale under Seques-
tration referred to Chambers)
WONHAM v. MACHIN (Mortgage-Sule-Insufficient Security
Puisne Incumbrancer-Costs of Sale).

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V.-C. S.

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M. R.

AINSWORTH (E.), IN THE GOODS OF (Will-Words written below
the Signature of the Deceased-15 Vict. c. 24)
MOLLETT AND ANOTHER v. ROBINSON (Principal and Agent -
Broker-Contract-Usage of Trade)

P. & M.

C. P.

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This was an appeal against a decision of Lord Justice Giffard, which had reversed a finding of Mr. Commissioner Winslow.

The question was, whether under the Bankruptcy Act of 1861 a peer of the realm could be made a bankrupt and subjected to all the incidents of bankruptcy, excluding, of course, restraint of the person. Mr. Commissioner Winslow had held that a person having privilege of Parliament, and being a non-trader, was not within the Act. Lord Justice Giffard had held that he was within it. An appeal was brought against this decision in the form of a special case, which had been approved of by the Lord Justice.

Sir R. Palmer, Q.C., and E. Reed, for the appellant, were heard. De Gex, Q.C., and Bagley, for the respondent, were not called on. THE LORDS were clearly of opinion that the words of the statute of 1861, "all debtors," included non-traders having No. 26.-1870.

CHOLMLEY . STRICKLAND. STRICKLAND v. CHOLMLEY. Will-Charge.

July 8.

These were two appeals depending on the construction of the will of Sir George Strickland.

The testator by his will gave certain estates to his younger sons, George, Charles, and Walter, for their lives. At that time he had three younger sons living. Accompanying these estates were powers of jointuring for the wives, and of charging portions of 5000. for younger children, of these sons, and they were charged with certain annuities for the testator's daughters. The testator's eldest son was William (now represented by Sir G. Cholmley), to whom, after the deaths of the younger sons, the estates were to go; but there was a condition that if the eldest became possessed of all the estates by the deaths of his brothers, or any one of the brothers became so possessed of them by becoming an eldest son through the death of William without issue male, the possessor was to settle all estates that should come to him by virtue of any will or settlement previously made upon the younger sons and their issue male. But in case the possessor of the estates thus devised refused to comply with these conditions, then these estates were left to the younger sons and their heirs male in succession. In case of the deaths of all the younger sons, and the possession thereby of all the estates by the eldest son, then the testator gave 1000l. to each of the younger sons' children to be paid out of these estates. The estates had all come into the possession of the eldest son.

The Court below held that this was a clear charge of the 10007. on the estates, raiseable whenever by the deaths of the younger sons the whole came into the hands of the eldest, and that this charge was not barred by the eldest son barring the entail.

THE LORDS affirmed this holding, and ordered the appeal by Sir G. Cholmley to be dismissed.

Some time after making the will another younger son was born to the testator, who immediately added a long codicil to his will, giving this last-born son property of a similar kind and under similar conditions to those attached to the property given to the three sons above named. But there were some differences between the will and codicil in this respect. The children of this last-born son claimed to be treated in the same way as the children of the other younger sons, and the Master of the Rolls had held that the claim was well founded; but his decision was, on account of the differences between the terms of the will and codicil as to the property devised for the benefit of the younger children, reversed by Lord Chancellor Chelmsford. This appeal was brought against the reversal.

THE LORDS held that this appeal must be dismissed.
Sir R. Palmer, Q.C., and Nalder, for the younger children.
Jessel, Q.C., and Wickens, for Sir G. Cholmley.
Solicitors for the younger children: Wood, Street, & Hayter.
Solicitors for Sir G. Cholmley: Johnson & Wetheralls.

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Bristowe, Q.C. (Fischer with him), for the appellants. Dickinson, Q.C., and Phear, in support of the decree. THEIR LORDSHIPS reversed the decree, and dismissed the plaint with costs.

Solicitors: Singleton & Tattershall; Charles Mallam.

L. J. JAMES.

THE LATE LORD JUSTICE GIFFARD.

Aire and Calder Canal Company appealed from the winding-up order.

Pearson, Q.C., and Graham Hastings, for the petitioners, renewed the preliminary objection against the right of the appellants to be heard.

Glasse, Q.C., and Streeten, for the appellants.

THE LORD JUSTICE JAMES was of opinion that the appellants July 15. had no right to be heard. A stranger who had a lien or other interest in the property of a partnership could not interfere to

THE LORD JUSTICE JAMES, on taking his seat, addressed the prevent the partnership from being wound up. If in the course

Bar as follows:

I cannot proceed to the business of the day without saying a few words on the sad event which has cast its black shadow over this court. During the short period in which I have been in this seat it has been my misfortune not to have sat by the side of my lamented colleague, but it has been my happiness to have known him well, intimately, and as a friend from the very commencement of his professional life, and for many years we sat side by side in the court of Vice-Chancellor Wood. He at the very outset obtained an amount of business under which a mind of less strength might well have failed, but he applied himself to it with an industry which never to the end flagged. His acute intellect, sound judgment, and unsurpassed knowledge of legal principles, made him the safest of advisers to the numerous clients who sought his counsel. What his powers as an advocate were those only know and can tell who, like myself, were frequently engaged against him, and found how formidable an opponent he was. But he was not only a great lawyer and a great advocate, he was every inch an English gentleman. When after many years of successful practice he was elevated to the Bench as Vice-Chancellor, and afterwards promoted to the office of Lord Justice, his elevation and promotion were received by his brethren with unanimous acclaim; and the whole profession recognised in his appointments the just rewards of pure professional merit, honours and distinctions most worthily won and honourably bestowed. We all had hoped that he had a long period of useful life before him, and that in this court and in the Judicial Committee of the Privy Council the suitors, the profession, and the public would for many years have had the benefit of the great judicial qualities which had already made him eminent as a judge as he had been distinguished as a counsel. But it has seemed otherwise good to the Almighty Disposer of our lives. The loss to me, who had hoped to have sat by him, is very, very great; it is scarcely less great to you who practised before him. I know and feel that this tribute to his memory, which has come from the bottom of my heart, finds an answering echo in yours. May we, in our respective careers, be the better for thinking of what he was in them before us.

L. J. JAMES.

July 15.

In re BRADFORD NAVIGATION COMPANY. Winding-up Petition-Locus Standi of Respondents. This was an appeal from an order made by Vice-Chancellor Malins for winding up the above-mentioned company. The company was established in 1771 by Act of Parliament, and the petition was presented by the company themselves.

The petition was opposed by the Aire and Calder Canal Company, whose canal communicated with the Leeds and Liverpool canal, which communicated with the petitioners' canal. On the hearing before the Vice-Chancellor the petitioners objected that the Aire and Calder Canal Company had no locus standi to be heard on the petition, being neither creditors nor contributories; but the Vice-Chancellor overruled the objection, although he ultimately granted the petition (Law Rep. 9 Eq. 80). The

of the winding-up anything was done in derogation of their rights they would have their remedy. The objection must be allowed, and the appeal dismissed with costs. Solicitors: Evans & Foster; Darley.

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ATHERTON V. BRITISH NATION ASSURANCE COMPANY.
Staying Proceedings pending Appeal-Money in Court.

This was an application on behalf of the plaintiff in the suit to stay proceedings pending an appeal which he had presented to for 1000%. on the life of one Rigg, and filed this bill against the the House of Lords. The plaintiff was the assignee of a policy company to recover the amount secured. The company resisted the claim, on the ground of alleged misrepresentation at the time the policy was effected. The Master of the Rolls decided in favour of the plaintiff; but on the application of the defendants, who had presented a petition for rehearing, he stayed the execution of the decree on the defendants paying the money into court. The Court of Appeal reversed His Lordship's decision, and dismissed the bill with costs (see ante, p. 148). The plaintiff then of the money out of court to the defendants, and the payment of appealed to the House of Lords, and moved to stay the payment the taxed costs to the defendants' solicitors, pending the appeal. Sir R. Baggallay, Q.C., and North, for the plaintiff. Jessel, Q.C., and Bevir, for the defendants.

THE LORD JUSTICE JAMES said that the application must be refused. If the Master of the Rolls had dismissed the bill, which it was now decided would have been the right course, the money would not have been paid into court at all. He could not now tors must receive their costs upon giving the usual formal prevent the defendants from taking it out of court. The soliciundertaking to refund it in case the decree should be reversed by the House of Lords.

Solicitors: G. L. P. Eyre & Co.; Lydall & Sweeting.

M. R.

WONHAM v. MACHIN. July 14. Mortgage-Sale-Insufficient Security-Puisne IncumbrancerCosts of Sale.

This was the further consideration of a suit by a second mortgagee for the sale of the mortgaged property and application of the proceeds in discharge of the incumbrances. A decree for sale was made, and the property was put up for sale under conditions providing that no purchaser should require any incumbrance to be discharged except by the concurrence of the incumbrancer in the conveyance. The proceeds of sale were sufficient for payment of the first mortgagee in full, but not of the second mortgagee. A puisne incumbrancer who had concurred in the conveyance to the purchaser now applied for payment of his costs of executing the conveyance.

Jessel, Q.C., and Batten, for the plaintiff.

Tyssen, for the first mortgagees, and also for the purchaser.
Southgate, Q.C., for the puisne incumbrancer.

THE MASTER OF THE ROLLS held that the costs of executing the conveyance could not be distinguished from the other costs of the incumbrancer, and that he was clearly not entitled to any part of these costs.

Solicitors: J. M. Yetts; Poole & Hughes.

M. R.

MULLINGS v. TRINDER.

July 18. Vendor and Purchaser-Specific Performance-Doubtful Title. This was a suit for specific performance of a contract for the purchase of certain real estate. The subject matter of the suit was part of the property which was the subject of the suit of Pyrke v. Waddingham (10 Hare, 1), where Vice Chancellor Turner dismissed a bill for specific performance on the ground, that although, in his opinion, the vendor had a good title, yet it was too doubtful to be forced on a purchaser.

The state of the title did not materially differ from its state at the time of that suit.

Jessel, Q.C., and Bevir, for the plaintiffs.
Southgate, Q.C., and Field, for the defendants.

THE MASTER OF THE ROLLS, agreeing in the principle laid down by Vice-Chancellor Turner in Pyrke v. Waddingham, was of opinion that a wrong application had been made of it, and that the title was not doubtful, and made a decree for specific performance, but gave no costs on either side. Solicitors: Peacock & Goddard; W. H. Herbert.

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balance (after giving him credit for the proceeds of such sale) owing from him in respect of all calls upon such shares due at the time of the forfeiture, with interest at 10 per cent. per annum from the day on which such calls were payable; that it should be at the discretion of the directors how many of the shares forfeited they would sell from time to time, and that on satisfaction of the arrears due and the expense attending the sale (if any) they might by resolution declare that all or any of such shares not then sold or disposed of should revert to the person who held

them at the time of forfeiture.

Piercy was the holder of 125 shares, which were duly declared forfeited for non-payment of calls on the 2nd of May, 1868, but had not been sold.

The winding-up commenced in November, 1869.

Glasse, Q.C., and W. Burber, for the applicant, contended, that upon the forfeiture of the shares he ceased to be a shareholder, and therefore could not be made a contributory.

Cotton, Q.C., and Freeling, for the liquidators, contended, that the effect of the provisions of the articles was, that the company were quasi mortgagees of the forfeited shares, and the shareholder retained an interest, and was therefore liable to be made a contributory.

THE VICE-CHANCELLOR held, that upon the forfeiture of his shares the applicant ceased to be a shareholder, and that his.. name must be removed from the list of contributories. Solicitor for the applicant: Horwood. Solicitor for the liquidators: W. Raimondi.

Druce moved, on behalf of the plaintiffs, that sequestrators appointed in accordance with the General Order of the 7th of January, 1870, under the Debtors Act, 1869, rule 3, might be at liberty to sell certain property, consisting principally of household V.-C. B.

In re BowER.

July 14.

furniture, cattle, and farm produce, taken under the sequestra-Practice-Leases and Sales of Settled Estates Act-Order XLI. tion, referring to Daniell's Chancery Practice, 4th Ed. p. 949.

THE VICE-CHANCELLOR said that the matter was proper for chambers, and made no order on the motion, giving the plaintiffs leave to apply for a sale in chambers. Solicitors: Shum & Crossman.

V.-C. M.
In re GRAHAM, AN INFANT.
July 15.
Infant-Ward of Court—Order for Maintenance without Suit.
This was a petition by an infant, by her testamentary guardian,
for the sanction of the Court to her proposed marriage.

An order had been obtained on summons for the application of 500l. a year out of the income of the petitioner's property, and the only question was, whether the effect of that order was to constitute the petitioner a ward of Court, so as render the present application necessary.

Glasse, Q.C., and Maidlow, for the petitioner.

THE VICE-CHANCELLOR was of opinion, that the petitioner was a ward of Court, and made the usual order referring the petition to chambers.

Solicitor: J. Perry Godfrey.

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Rule 20.

Speed applied that a petition under the Leases and Sales Act might be set down for hearing, although the twenty-one days from the publication of the last of the advertisements directed to be made by s. 20 of the Act had not expired, as required by Order xli. rule 20 ("No petition under the Act (Leases and Sales) shall be set down for hearing until after the expiration of twenty-one days from the publication of the last of the advertise-.. ments"). It appeared that the last advertisement prescribed by the Act could not be inserted until the 21st of July, so that there would not be twenty-one days before the rising of the Court for the Long Vacation.

In re Adam's Devised Estates (6 L. T. (N.S.) 604) was cited. THE VICE-CHANCELLOR said that the petition might be set down for the last petition-day, but the petitioner must not be surprised if objections were then raised. Solicitors: Wilkins, Blyth, & Marsland.

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Thomas Hudson, who died on the 14th of April, 1852, by his July 16. will dated the 29th of June, 1850, devised real estate to the use of trustees and their heirs upon trust, as soon as conveniently might be after the 1st of November, 1861, to settle the same to the use of his great-nephew Charles Donaldson for life, with remainder to his first and other sons in tail male, with divers remainders over. By an indenture dated the 12th of April, 1852, the testator, Thomas Hudson, assigned to trustees certain specified bonds, debentures, shares, mortgage debts, stocks, funds, and securities, upon trust, after his death, to pay certain annuities, and subject thereto, during the minority of Charles Donaldson, to pay such portion of the income as the trustees should think proper for his maintenance and education; and when he should attain 21, until the age of 30, to pay to him out of the income such annual sum as the trustees should think proper, not ex

This was an application by Robert Piercy to have his name removed from the list of contributories of the above-named company, now being wound up under the supervision of the Court. The articles of association empowered the directors to forfeit shares for non-payment of calls, and provided that the forfeited shares should be deemed to be the property of the company; that the directors might sell or dispose of the forfeited shares, or any of them, as they should think fit; that any shareholder whose shares should have been forfeited and sold or disposed of should, notwithstanding, be liable to pay to the company the

ceeding 50007., and in the meantime to accumulate the unapplied income upon the trusts of the residue; and when Charles Donaldson should attain 30, to stand possessed of the trust funds, including all accumulations, and the income thereof, upon trust "to pay unto, or permit. . . . Charles Donaldson to receive... the whole of the dividends, interest, and annual produce" during his life.

The suit was instituted in 1852 to have the above will and settlement carried into effect by the Court, and Charles Donaldson (now C. D. Hudson) having attained 30 on the 11th of February last, the question upon this petition was, whether C. D. Hudson was entitled to the whole of the dividends that became payable after the 11th of February, 1870, or whether those that were then current were apportionable between the persons interested in the capital of the fund and himself.

Kay, Q.C., and Jones-Bateman, for the petitioner, C. D. Hudson, argued against the apportionment.

De Gex, Q.C., and Busk, for the persons interested in the capital, contended that the case was within the Act of the 4 & 5 Wm. 4, c. 22.

Pontifex, for other parties. Kay in reply.

THE VICE-CHANCELLOR said that if this case had been uncovered by authority he should have considered, with Sir R. Malins, in Wheeler v. Tootel (Law Rep. 3 Eq. 573), that there was no apportionment; but, like His Honour, he felt bound by ViceChancellor Kindersley's decision in St. Aubyn v. St. Aubyn (1 Dr. & Sm. 611), from which this case could not substantially be distinguished; and held accordingly that the income must be apportioned. Solicitors: Bennett, Dawson, & Bennett; Whitehouse; W. Bristow.

BANKRUPTCY.

Ex parte TEMPEST.

In re CRAVEN AND MARSHALL.

July 16. Bankruptcy-Fraudulent Preference-Bankruptcy Act, 1869, s. 92. This was an appeal by a Mr. Phineas Craven from an order of the county court judge at Huddersfield, under the following circumstances:

Abraham Craven, the bankrupt, conveyed certain real property to Phineas Craven as a security for money borrowed by him from the latter. The county court judge had, on the motion of the trustee, ordered this conveyance to be set aside, on the ground of its being a fraudulent preference. The affidavits shewed that the debtor carried on business at Bradford as an hotel keeper, in partnership with Marshall, and that at the time when the conveyance was executed the business was in a state of bankruptcy (the debtor filing a petition for liquidation within seven weeks after the date of the conveyance), and that Phineas Craven was aware of this fact, and in consequence asked for payment of what was owing to him, or some security for it. In support of the appeal it was argued that the request of Phineas Craven was sufficient to prevent the conveyance being treated as a fraudulent preference, while for the respondent it was argued that this request did not amount to a pressure, and had in reality no effect in inducing the bankrupt to execute the conveyance, and that under s. 92 of the Bankruptcy Act, 1869, such a conveyance would be void against the trustee even if there was pressure, and that the old law as to mixed motives no longer existed. De Gex, Q.C., and Robertson Griffiths, for the appellant. Winslow and F. Knight, for the respondent.

THE CHIEF JUDGE was of opinion that two things must still combine in order to constitute a fraudulent preference, viz., the conveyance must be made in contemplation of bankruptcy, and must also be entirely voluntary; and being of opinion that the conveyance was executed on account of the request of Phineas Craven, he reversed the order of the county court judge, and held the conveyance to be valid.

Solicitors: Flower, for Wood & Killick, Bradford; Learoyd & Learoyd.

C. P.

Common Law.

MOLLETT AND ANOTHER v. ROBINSON. July 11. Principal and Agent-Broker-Contract-Usage of Trade. The defendant, a merchant at Liverpool, employed the plaintiffs, tallow-brokers in London, to buy tallow for him in the London market. Having orders to buy tallow for other persons as well as the defendant, the plaintiffs contracted with third persons for the purchase of a sufficient number of tons to satisfy all their orders, regular bought and sold-notes passing between the sellers and the plaintiffs on each occasion. The principals' names were not disclosed on either side, and by these notes contracts were made between the plaintiffs and the sellers by which each became bound personally to the other for the fulfilment of the contract. A bought-note signed by the plaintiffs as “sworn brokers" describing the tallow bought for the defendant, was sent to him, stating it to have been "bought for his account." The defendant, in ignorance of the fact that there was no actual seller responsible to him for the precise quantity so stated to have been bought for him, treated the bought-note as a valid contract.

The market falling, the defendant, as soon as he became aware of the true state of affairs, repudiated the contract; and the plaintiffs sued him for the difference between the contract price and the market value on the prompt-day, on counts for not accepting the tallow and for not indemnifying the plaintiffs.

The plaintiffs relied upon an universal usage in the tallowtrade in London, which was clearly proved,-for brokers to make the contracts in their own names, upon which they became personally responsible, and to make such contracts for the aggregate or any quantity of tallow which they might have orders to buy, and then at the prompt-day to balance and settle the deliveries or payments with their sellers, and either to make deliveries to their principals, or, if deliveries were not taken, to claim any difference from the respective principals,much in the same manner as dealings on the Stock Exchange are conducted. BOVILL, C.J., and MONTAGUE SMITH, J., held that the usage was good, and the plaintiffs entitled to recover.

WILLES and KEATING, JJ., held that the usage was bad, the authority of the brokers being to buy for the defendant as brokers from a seller who would be responsible to him, and not themselves to sell to him, as principals.

Sir G. Honyman, Q.C., and Watkin Williams, for the plaintiffs. Sir J. B. Karslake, Q.C., and Cohen, for the defendant. Attorneys for plaintiffs: Thomas & Hollams.

Attorneys for defendant: Simpson & Cullingford.

P. & M. Will

IN THE GOODS OF E. AINSWORTH. July 12. Words written blow the Signature of the Deceased · 15 Vict. c. 24.

before her death she executed a testamentary paper in the preMrs. Ainsworth died on the 16th of April, 1870. On the day sence of her two sisters. This paper concluded as follows:

"The two silver cups used at dinner to my sister Emma; "also everything in brew-house, and "Elizabeth Ainsworth. wines, &c. &c.; also all things in "M. A. Byron. old room upstairs." "E. Byron."

The paper was in the handwriting of Miss M. A. Byron, who stated that the sentence above given was written before the paper was executed.

Dr. Tristram moved for probate. He referred to 15 Vict. c. 24. LORD PENZANCE ordered the whole writing to be included in the probate.

Attorneys: Williams & James.

TABLE OF CASES.

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.

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Equity.

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M. R. 203

Equity.

July 20.

STRETTON V. GREAT WESTERN AND BRENTFORD RAILWAY
COMPANY.

Railway Company-Ejectment-Injunction-Lands Clauses
Consolidation Act, s. 124.

ARDLEY v. GUARDIANS OF ST. PANCRAS (Lease-Reservation-
Right of Way-Trespass-Injunction)
BAIRD'S CASE. In re AGRICULTURIST CATTLE INSURANCE COM-
PANY (Company-Contributory-Extent of Liability of Estate
of Deceased Shareholder)
L. J. James 203 L. C. & L. J. JAMES.
BETTS V. THOMPSON (Rights of Common-Suit by Freehold Tenant
against Lord of Manor-Right to sue on behalf of Freehold
Tenants of Lands formerly Demesne of the Manor) M. R. 203
BULTEEL v. PLUMMER (Will-Void Appointment)
L. C. & L. J. James
HEATHER, In re (Solicitor-Taxation-Right to alter Bill after
Delivery)
L. J. James
HOVENDEN v. LLOYD (Injunction –Trade-mark-Manufacture by
Wife with Acquiescence of the Husband)
V.-C. B.
IRRIGATION COMPANY OF FRANCE, In re (Company-Winding-up
-Transformation of English Company into French Com-
pany-Dissentient Shareholder-Companies Act, 1862 s. 161)
V. C. M.

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LAND CREDIT COMPANY OF IRELAND v. FERMOY (Public Company
-Directors-Liability)
L. C. & L. J. James
MILLER v. COOK (Mortgage of Reversionary Interest
scionable Bargain-Account for Moneys actually advanced)

MOLESWORTH V. MOLESWORTH (Policy. - Bonus
firmation)

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V.-C. S.

Will- Con

202

202

205

204

202

203

L. C. & L. J. James 202
MORDUE v. PALMER (Arbitration — Award)'
V.-C. B. 206
NORTHERN ASSAM TEA COMPANY, In re (Chose in Action—Set-off—
Debenture issued to Shareholder in Company-Set-off of
Calls)
M. R. 203
PRYSE'S ESTATES, In re (Practice-Petition under 25 & 26 Vict.
c. 108-Service)
V.-C. M. 205
SPARROW'S TRUSTS, In re (Jurisdiction-Appointment of New Trus-
tee--Power to appoint rested in Lunatic-Trustee Act, 1850,
8. 32-Lunacy Regulation Act, 1853, 88. 137, 138) V.-C. M.

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A. & E.
v. ATTORNEY-GENERAL (Legitimacy Declaration Act
English Marriage dissolved Abroad-Subsequent Marriage-
Validity)
P. & M.
SLATER AND SLATER v. ALVEY (Testamentary Suit-Jurisdiction
-County Court-20 & 21 Vict. c. 77, ss. 54, 57, 59-21 & 22
Vict. c. 95, 8. 10)
P. & M.
WEST AND OTHERS v. LONDON AND NORTH WESTERN RAILWAY
COMPANY (Railway and Canal Traffic Act, 17 & 18 Vict. c. 31
-Injunction-Undue Preference-Coal-depôts at Stations)
C. P.
No. 27.-1870.

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206

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Miss Fawell, the predecessor in title of the plaintiff, was the owner of a portion of a meadow let to one Clarke, the owner of the rest of the meadow. In 1856, the Great Western and Brentford Railway Company took possession of all the land, and afterwards bought Clarke's land, and in his conveyance the exact position and extent of Miss Fawell's land was shewn. It appeared that neither Miss Fawell nor the plaintiff were aware of the exact boundaries of their portion; but the company remained in possession, and in the demands which were from time to time made on the railway company, Miss Fawell and the plaintiff made mistakes, and the company refused to recognise their title. In 1868, the plaintiff brought an action for ejectment against the company, which resulted in a special case, in which the company admitted that they had taken possession without Miss Fawell's consent, and denied the plaintiff's title. The plaintiff succeeded in the action, was put into possession by the sheriff, and stretched a rope across the line, which was cut by a train.

The plaintiff then filed the bill in this suit, to restrain the company from trespassing. The company, amongst other grounds of defence, brought evidence that they had, in 1856, served on Miss Fawell a notice to treat, which appeared to havo been forgotten, and of which the plaintiff had no knowledge. The Vice-Chancellor Malins dismissed the bill with costs (see ante, p. 158).

The plaintiff appealed.

Glasse, Q.C., and Graham Hastings, for the plaintiff. Pearson, Q.C., and C. T. Simpson, for the railway company. Osborne, Q.C., H. A. Giffard, and Stock, for other defendants. THE LORD CHANCELLOR said he was surprised to find that the Vice-Chancellor seemed to have treated the plaintiff throughout as a wrongdoer. But the plaintiff or his predecessor was the owner of a piece of land; it was true that they did not know the boundaries of the land, and were, therefore, under difficulties in establishing their rights, but the defendants had for a long time known the exact boundaries, and still retained possession without paying the plaintiff, or paying the money into Court, and defied him, apparently relying on the difficulties under which ho lay. He was therefore driven to an ejectment, and what other course could he have adopted? In that he succeeded, and proceeded to issue execution, but the defendants defied the law, and continued to trespass. The plaintiff could not further enforce his right without destroying the railway, except by filing his bill, which he did. The Vice-Chancellor seemed to have thought the plaintiff wrong, but His Lordship was of opinion that the plaintiff was right in every step he had taken. As to the order to treat, which the company appeared to have served in 1856, they could not, after virtually denying its existence in the ejectment, and not producing it till this bill was filed, be now allowed to avail themselves of it. Nor did the 124th section of the Lands Clauses Consolidation Act apply to this case, as there had been no mistake or inadvertence, but the company, with a perfect knowledge of the plaintiff's title, had tried to keep the land without paying for it. The decree of the Vice-Chancellor must be reversed, and the defendants must pay all the costs of the suit

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