July 22.

In re PRYSE'S ESTATES. Practice-Petition under 25 & 26 Vict. c. 108-Service. This was a petition under 25 & 26 Vict. c. 108, by trustees of a settlement, which contained a power for the trustees with the consent of the tenant for life to sell the settled estates, that the trustees might be empowered to sell the land or the minerals separately.

Re-construction of a Company-Purchase of Shares from a Dissenting Shareholder-Companies Act, 1862, s. 161. This was a motion on behalf of J. Vining that his name might be taken off the list of contributories in the winding up of the above company.

Mr. Vining was an original allottee of 200 shares, and he had paid 77. 10s. for calls upon each share. In February, 1867, he contracted to sell his shares to the Vicomte de Caze for the full sum which he had paid, but the contract was not completed till December, 1867. At a meeting of the shareholders on the 22nd of August, 1867, it was resolved that the company should be reconstructed and formed into a new company under a different name, and that the old company should be wound up voluntarily, and it was also resolved, that in case any member of the old company should become entitled to have his interest therein purchased by the liquidators, the money required for that purpose should be raised by a sale of the shares and debentures of the new company, which might have been taken or received by such member, and any deficiency was to be raised by a sale of part of the assets of the company. This resolution was confirmed on the 5th of September, 1867.

Mr. Vining, with the consent of the Vicomte de Caze, dissented from the resolution as to reconstruction, and required the directors either to abstain from carrying the resolution into effect, or to purchase his interest, under the 161st section of the Companies Act, 1862.

The shares were accordingly purchased by the liquidators, and were transferred to them by Mr. Vining with the consent of the Vicomte de Caze, and the transfer was registered in the books of the company.

In December, 1868, the voluntary winding-up of the company was continued under the supervision of the Court, and Mr. Vining's name was placed upon the list of contributories, on the ground that he was still liable to any future calls for payment of the liabilities of the company.

Cotton, Q.C., and Graham Hastings, in support of the motion. Glasse, Q.C., and Higgins, for the official liquidators. THE VICE-CHANCELLOR held that the reconstruction of a company with a new capital and new articles, was the formation of "another company" within the meaning of the 161st section of the Companies Act, 1862, and that thereupon the privileges given to a dissenting member under that section might be exercised. He also held, that where at the date of the reconstruction there was a binding contract for the sale of his shares by a dissenting member, the agreement under the 161st section might be made by the vendor with the assent of the vendee, or by the vendee with the assent of the vendor, to the liquidators; that upon the transfer of the shares to the liquidators Mr. Vining ceased to be a member of the company, and his name must be taken off the list of contributories.

Solicitors: Vining & Son; G. S. & H. Brandon.

The petition had been served on the tenant for life, but not on the remaindermen.

Archibald Smith, for the petitioners, submitted that the remaindermen need not be served.

THE VICE-CHANCELLOR held that service on the remaindermen was not necessary.

Solicitors: Boys & Tweedie.

V.-C. M.

In re SPARROW'S TRUSTS. July 23. Jurisdiction-Appointment of New Trustee-Power to appoint vested in Lunatic-Trustee Act, 1850, s. 32-Lunacy Regulation Act, 1853, ss. 137, 138.

This was a petition under the Trustee Act, 1850, for the appointment of a new trustee of a will, the person to whom the power of appointing new trustees was given by the will being a lunatic.

Osborne, Q. C., and G. N. Colt, for the petitioners.

Glasse, Q.C., and Hallett, for one of the respondents, submitted, that the Court had no jurisdiction to make the order, and that the power of appointing a new trustee ought to be exercised by the committee of the lunatic, under an order in lunacy under the Lunacy Regulation Act, 1853, s. 137. Haggard, for another respondent.

THE VICE CHANCELLOR held that the Court had jurisdiction to make the order under the Trustee Act.

Solicitors for the petitioners: Prior & Bigg.
Solicitors for the respondents: Hyde & Tundy.

Injunction-Trade-mark-Manufacture by Wife with Acquiescence of the Husband.

Bill by Robert Hovenden the younger against Aimée Lloyd, widow of Andrew Solomon Lloyd, alleging that Solomon Lloyd, perfumer, deceased, invented, manufactured, and sold a preparation for shaving, which he called "Euxesis;" that in 1847 S. Lloyd assigned his business, including the right to manufacture and sell the "Euxesis," to his son, A. S. Lloyd; that from and after such assignment A. S. Lloyd carried on the manufacture, first in Conduit Street, then in Beak Street, and finally in Glasshouse Street, Middlesex, until his death; that on the 13th of September, 1868, A. S. Lloyd died, having by will bequeathed all his stockin-trade, fixtures, goodwill, furniture, and effects, and all other his estates and effects whatsoever, to Susannah Howard Tarleton for her own use and benefit; that the will was duly proved by S. H. Tarleton; that by an assignment dated the 4th of February, 1869, all the interest of S. H. Tarleton in the trade-marks used by A. S. Lloyd or S. H. Tarleton, or either of them, in connection with the business of a hairdresser and perfumer, and also the right to and interest in the recipe or formula for manufacturing "Lloyd's Euxesis," were assigned by S. H. Tarleton to the plaintiff; that the plaintiff had lately discovered that the defendant was pirating the trade-mark, and selling a preparation under the name of " A. S. Lloyd's Euxesis" in collapsible tubes of the same size and shape, and in all respects similar to those used by the plaintiff, and labelled with labels which were verbatim copies of the labels used by the plaintiff, and formerly used by A. S. Lloyd

Answer by the defendant, that S. Lloyd did not make any assignment to his son A. S. Lloyd; that A. Š. Lloyd was employed as his father's assistant at weekly wages; that S. Lloyd died in 1854 intestate; that after his death A. S. Lloyd removed to Glasshouse Street, and carried on the business of a perfumer; that defendant manufactured and A. S. Lloyd sold the preparation called "Euxesis" until 1867, when, by reason of A. S. Lloyd's adultery with S. H. Tarleton, defendant quitted his house; that defendant obtained a decree nisi for a judicial separation, but before the decree was made absolute, namely, on the 13th of September, 1868, A. S. Lloyd died; that from June, 1867, to her husband's death, defendant continued the manufacture of the preparation, and continued to sell it, amongst other persons, to the plaintiff, with her husband's knowledge, and without interruption; and submitting that S. H. Tarleton did not become entitled to the name or trade-mark; and that the defendant had full right to continue the sale and manufacture for her own benefit.

On the 22nd of April, 1869, the motion was ordered to stand to the hearing.

S. H. Tarleton (now Edlin) deposed, that at the time of the sale she communicated the secret, on oath, to the plaintiff, for whom she was now manufacturing. The defendant's evidence went to shew that her manufacture was very superior to the other, and that the plaintiff had been trying to get the defendant to manufacture for him on terms of mutual interest, which she had declined to do.

Amphlett, Q.C., and Speed, for the plaintiff.
Kay, Q.C., and Cottrell, for the defendant.

THE VICE-CHANCELLOR held, under all the circumstances, especially the manufacture by the defendant with the assent of her husband for so long a period, that an exclusive right to manufacture the article in question did not pass by the will of A. S. Lloyd; consequently that the plaintiff had no title; and dismissed the bill, with costs.

Solicitors: Wild & Barber; G. S. & H. Brandon.

the words must have been omitted by his clerk in copying the original draft. As the award of the 12th of November had not been communicated to the defendant or his solicitors, Mr. Udall made a new award, containing the words omitted from the former document," and the costs of the reference," and wrote a letter explaining the matter, which was communicated to defendant's solicitor. On the 17th of March, 1869, plaintiff obtained, ex parte, an order from Vice-Chancellor James making the award of the 2nd of December a rule of court. The motion to enforce the terms of this award was, as above stated, met by a cross motion to set aside the order of the 17th of March, by which the award was made a rule of court.

Fry, Q.C., and Chitty, for the defendant:-The document of the 2nd of December, 1868, was a mere piece of waste paper, as the arbitrator was then functus officio, having already signed and published his award, which he had no power to correct, even as to a mere clerical error; and the statutes, as to the time within which to move to set aside an award, do not, therefore, apply. In any case, the order of the 17th of March, 1869, must be treated as a nullity, as, independently of the invalidity of the document thereby treated as an award, the circumstances of the case were not at the time referred to.

Kay, Q.C., and G. Williamson, for the plaintiff:-The award of the 2nd of December was the only award published to the parties, and is valid, as the previous document did not express the decision come to by the arbitrator. No sufficient reason is shewn for setting it aside, and the defendant has not objected within the time limited by the statutes (9 & 10 Wm. 3, c. 15; Com. Law Procedure Act, 1854). As he cannot move to set aside the award, he cannot move to set aside the order by which it was made a rule of court.

THE VICE-CHANCELLOR said that, no doubt, an arbitrator had no power to rectify his own mistake, but that was not the case here. The document of the 12th of November, by omitting the words "and the costs of the reference," did not express the real mind of the arbitrator, and his functions had not expired when, on discovering the omission made by his clerk in copying the original draft, he made his award of the 2nd of December. The arbitrator had not exceeded his authority in thus setting the matter right; and as the award was not invalid, the order making it a rule of court could not be set aside. Solicitors: Williamson & Hill; Shum & Crossman.

WEST AND OTHERS v. LONDON AND NORTH WESTERN RAILWAY COMPANY.

July 11.

-Undue Preference-Coal-lepôts at Stations.

On the 12th of November, 1868, Mr. Udall, the arbitrator, made and signed his award, which was sent to the London agents of the plaintiff, and by them sent to his solicitors in the country. On the 23rd of November attention was called by the country solicitors to the fact that no provision had been made for the costs of the reference. Mr. Udall, when applied to, stated that he had directed the defendant to pay those costs, and that if the

The complainants were coal-merchants in Leicestershire and Northamptonshire, and had for some years been accustomed to send coal to various stations on the defendants' railways, and, amongst others, to the stations upon the Rugby and Stamford railway.

The complainants, as well as other coal-merchants, were allowed the use of certain wharves or depôts at these stations for the reception and deposit of the coals consigned to them respectively, for which accommodation each coal-merchant paid a remuneration to the company. The practice of the company seems to have been to apportion the accommodation at the different stations amongst the coal-merchants who required it; and each coal-merchant used his wharf as a store for his coals until they

were sold and were required to be removed. In the course of the year 1869 a new station was opened upon the Rugby and Stamford line, at Lubenham. There was a space of ground attached to and forming part of the station there, upon which the complainants unloaded and deposited their coal for some time, and until about the 20th of December in that year, when they received an intimation from the company that the whole of the wharf accommodation had been let by them to one Perkins, and that the complainants' coal could no longer be stored at Lubenham station, though there was more wharf accommodation there than was needed by Perkins.

The complainants thereupon obtained a rule under the Railway Traffic Act, 17 & 18 Vict. c. 31, calling upon the company to shew cause why a writ of injunction should not issue against them, enjoining them to carry coals for the complainants to the Lubenham station of the Rugby and Stamford Railway upon the same terms and at the same rates upon and at which the company carried coals for them previously to the 1st of January, 1870, or upon the terms and at the rates upon and at which they then carried coals for Perkins to the said station; and also enjoining the company to permit the complainants to deposit the coals so to be carried by the company for them to the said station upon an adequate portion of the coal-wharf there, upon the complainants paying for such accommodation at the same rate as they and other merchants then paid for similar accommodation at other stations of the company on their line, or at the same rate as paid by Perkins for such accommodation at the said station; or why the company should not be restrained from giving undue and unreasonable preference and advantage to Perkins in respect of carrying coals for him to the said station, and permitting him to deposit the coals so carried on the coal-wharf at the said

station.

BOVILL, C.J., and KEATING, J., held that the space allotted for the storage of coals at the station might for the purposes of the Railway Traffic Act be treated as part of the railway, and that the company were bound to afford the same amount of accommodation to all persons desirous of availing themselves of it, and that the rule should be made absolute to restrain the company from giving an undue preference in respect of the carrying and deposit of coals at the station.

MONTAGUE SMITH and BRETT, JJ., held that the Court had no jurisdiction under the Act to compel the company to provide space for the storing of the complainant's coals, such jurisdiction applying only to matters incidental to the receiving, forwarding, and delivering of traffic.

The Court being thus divided, the rule dropped.

Cave, for the complainants.

Davidson, Q.C., for the company.

Attorney for complainants: J. H. Douglass.

Attorney for the company: J. Blenkinsopp.

leaving a widow, then I give the hereditaments and premises so specifically devised to such one or more of them so dying unto his widow and her assigns for and during the term of her natural life." Under this proviso, and under the will of her husband, the female defendant, the widow of John, claimed to be entitled to a moiety of the estate devised to Robert, for her life. The plaintiff claimed as heir-at-law of George Melsom, the father.

BOVILL, C.J., and BRETT, J., held that the word "specifically" in the proviso was satisfied by its being held to refer to each separate devise of separate property to each son, and that the testator had sufficiently manifested his intention that the accruing shares were to pass both to widows and children in the same manner as the estate originally devised to each son. BYLES, J., held that the provisions of the will in favour of the defendant were satisfied by the life estate which she took in the share originally and directly devised to her husband, and that she was not entitled to a life interest in an accruing share. Garth, Q.C. (J. C. Mathew with him), for the plaintiff. Manisty, Q.C. (Murch with him), for the defendants. Attorneys for plaintiff: Jones, Roberts, & Hale. Attorneys for defendants: Routh & Stacey.

C. P.

July 11.

LORD LECONFIELD AND Others, Apps.; EARL LONSDALE, RESP. Salmon Fishery Act, 1861 (24 & 25 Vict. c. 109), ss. 12, 17—Fishing Weir-Non-navigable River-Jurisdiction of Commissioners. The fishery commissioners made an order declaring the legality (subject to certain conditions) of a fishery coop or box to which Lord Lonsdale claimed to be entitled, in a mill-dam across the river Derwent, in Cumberland. Upon an appeal against that order, the main question was, whether the provisions of Magna Charta and certain other early statutes prohibiting weirs, were confined to navigable rivers.

THE COURT held, in conformity with the decision of the Court of Queen's Bench in Rolle v. Whyte (Law Rep. 3 Q. B. 286), that those statutes relate to navigable rivers only. Holker, Q.C., for the appellants.

Mellish, Q.C., for the respondent.

Attorneys for appellants: Jennings, White, & Buckston, for S. & S. G. Saul, Carlisle.

Attorneys for respondents: Gregory, Rowcliffes, & Rawle, for W. Lumb, Whitehaven.

C. P.
MELSOM V. GILES AND WIFE.
July 11.
Devise, Construction of-Estate "specifically" devised - Words of
Reference.

George Melsom had three sons, John, George, and Robert. By his will he devised property to John for life, and, after his death, to his child or children, if any, in fee; "but in case the said John should die without lawful issue, then unto and equally between the testator's sons George and Robert, in the same manner as the estates herein devised are limited to them respectively; subject, nevertheless, to the proviso hereinafter mentioned in case my said son John should leave a widow." There was a devise of other property to George and Robert respectively in precisely the same terms. Robert died a batchelor in 1848. John, who died in 1841, left a widow but no children.

The proviso above referred to was as follows: "Provided that, in case any or either of my said sons should depart this life

P. & M. IN THE GOODS OF P. DITCHFIELD. July 19. Administration with the Will annexed of the unadministered Estate-Grant to Representative of a Married Woman, one of the Residuary Legatees

Peter Ditchfield died on the 15th of February, 1830, having made his will, dated the 23rd of February, 1826, in which he nominated his four daughters executors and residuary legatees. Probate was taken by three, one of whom was Elizabeth Ditchfield, who survived her other three sisters, and died in 1843, leaving part of the estate unadministered. In November, 1834, Elizabeth Ditchfield married Henry Battersby, and on that occasion a settlement was executed by the parties in which power was given to her by deed or will (and with power of revocation) to dispose, amongst other things, of her interest under her father's will. On the 30th of August, 1837, she accordingly executed a will, in which she nominated her husband, Henry Battersby, executor for life, and John Croudson and John Leyland substituted executors. On the death of her husband, she divided her separate property in equal moieties between the children of her sister Ann Croudson, and of her brother Peter Ditchfield. Henry Battersby died in January, 1844, without taking probate of this will or administration of the rest of the goods of his wife. John