10 In re W. H. Barber Change of Attorney's Names-Superior Courts: Lord Chancellor.

and what is the mode of proceeding to compel I believe that no judgment that was ever pros its repair?

76. What parties are at common law primarily liable to repair highways? What exceptional liabilities exist by custom or prescription? Give the reason for such exceptional liabilities.

77. Upon whom is the liability to repair public bridges primarily thrown?"

78. In what cases may a person charged with felony which includes an assault be found guilty of the assault? Give an instance. If A. be indicted for assaulting and killing B., and the evidence proves an assault by A. upon B., but fails to connect B.'s death with the assault, can A. be found guilty of an assault upon the trial of an indictment for manslaughter thatall st

nounced by the Court was ever more patiently considered and more anxiously considered than that was, upon the merits as they were then before the Court. I have read the judgment, and must say I entirely concur in it, but if there is any other foundation for the motion, we shall be ready to hear you.

10

Mr. Roebuck. Your lordship will undersi stand I consider myself so bound by that, and did so consider before I addressed your lordship as to the new matter.

79. Upon what principles are dying declara- An application was made this Ter ptocoche,

tions admitted as evidence in criminal cases.

IN RE WILLIAM HENRY BARBER."
IN RE WILLI

ON

Court of
Bench by Mr.
Q. C., on behalf of Mr. John William Smith,
of Sheffield, for a rule to enter his name upon
the Roll as John William Pyesmith. This
gentleman, it appeared, is one of the sons of
Homerton, and highly distinguished for his
the late Rev. Dr. John Pye Smith, formerly of
talents and profound biblical learning.

On the 29th April last, a further application was made to the Court of Queen's Bench in this matter. The following is a report of what took place The Court at once granted the rule.-25th Mr. Roebuck. My lords, in the case of Mr. April, 1851. Mr.There are several cases to the same effect as Barber, I have to apply to your lordships liberty to move. I was only anxious to save this. See Exparte Daggett, 1 L. M. & P.1; the time of the Court, and to move in such 39 L. O. 244; Exparte James, 1 L. M. & P. manner as to meet their convenience. 4 39 L. O. 488; Exparte Dearden, 1 L. M.

C

Lord Campbell.-Our opinion is, that the & P. 666, 41 L. O. 32.

notices should stand good for this Term.

Mr. Roebuck.-Yes, my lord. The papers were only put into my hands last night, and, as the Term was running on, I thought it right to come downs

NOTES OF THE WEEK.

T

ADMISSON OF SOLICITORS.2uFORTIE THE Master of the Rolls has appointed Tuesday the 6th May, at the Rolls Court, Chancery Lane, at Four o'clock in the afternoon precisely, for swearing Solicitors.

Lord Campbell. Any motion-day, that is convenient to you, we will hear you as far as we are at liberty to hear you. I should say, if you have any new matter to 1 lay before us by on that my opinion is, that you should be affidavit, heard to lay those matters before us; but upon the matters already laid before the Court I consider it res judicata, and that the judgment of the Court ought not to be disturbed. It brɔru, was a judgment in which I did not take a part.pn

T

Every person desirous of being sworn admission or his Certificate of Practice for must leave his Common Law day the current year at the Secretary's Office, Rolls Yard, Chancery Lane, on or before Monday, May 5.

NEW MEMBER OF PARLIAMENT. S James William Freshfield, Esq., for Boston, 1 Coram Lord Campbell, C. J., Patteson, in the room of the Honourable Dudley Worsley Wightman, and Erle, JJ,\\\\\ Anderson Pelham, deceased. bp.ru) - mogteff 7 more

P

Jood RECENT DECISIONS IN THE SUPERIOR COURT SÅ AUTOG IN topiniË 10ÏÏAND SHORT NOTESH OF CASES arvode „trvsbbi, rsulīgi po

283 to to topilgan ɔdi. 40
PAYMENT OF COSTS OUT OF

RUND IN COURT. DEATH 30
OF LUNATIC.

སྙན་

tain

was a petition for the payment of cercosts incu incurred behalf of

on

An order was made on motion for payment of lately deceased, out of a fund

in

Tunatic,

sing

voldsomme Superior Courts: Lord Chancellor in the above cause, and to which the lunatic was entitled.

The Lord Chancellor, after taking time to consider, said, that the case of Sherwood v. Sanderson, 19 Ves. 280; Coop. 108; appeared to be a sufficient authority to make the order prayed by the petitioner, as, if the lunatic were alive, the fund would have been liable in equity to discharge the claim, and the fact of his being dead did not affect the liability of his estate, and ordered accordingly.

taken the bill pro confesso as against him, and
that the affidavits did not show the amend-
ments were material.

The Lord Chancellor said, that the case, came within the 67th, and not the 68th order, and that the affidavits were sufficient in stating the proposed amendments to be "considered material. And as therefore it appeared there was good reason why the bill should not be taken pro confesso against Heath, he being at material defendant, the order of the Court below must be dismissed, costs of all parties to be costs in the cause.

Upon appeal, an order of the late Master of over. the Rolls was discharged refusing the plaintiff leave to amend his bill a second time, where the affidavit alleged the proposed to amendments were considered to be mateurial" and where it was inexpedient to take the bill which was to clear off incumbrances on a fund, pro confesso against one of the defendants, a sub-mortgagor, who had not

costs.

25.-Turner v. Turner

Master of the Rolls dismissed with costs.
25. In re Finch-Appeal from the late

ment of trustees directed to be heard by Vice-
26.-In re Smythe-Petition for appoint-

76.1

25.—In re Vavasour—Cur, ad. vált.TOLTRO order to pay to parish officer the expenses of 25. In re Uphill Motion refused for put in an answer. THIS was an appeal from an order of the Court under the Trustees' Relief Act. lunatic's maintenance out of fund paid into late of the Rolls refusing leave to the plaintiff to amend his bill in this suit, which was instituted to clear off the incumbrances on a fund of 10,000l., and it appeared that Mr. Heath, a sub-mortgagee, and one of the defendants, of whom there were 14, had not put 24, 25, 28.-In re Beloved Wilks' Charity in his answer at the time of a notice of motion-Appeal allowed from Vice-Chancellor Knight to dismiss for want of prosecution. The plaintiff having applied for a second order for leave to amend, which the Master of the Rolls refused on the ground that no case had been made out for the indulgence of the Court, this appeal was presented.

That the draft of the proposed amendment has been settled, approved, and signed by counsel; and,

Chancellor.

Bruce.

24,-Oldfield v. Cobbett-Application for writ of supersedeas for discharge out of custody ordered to stand over, for service of notice on creditors. on bib I día a tenybuj e 25H

25.-Attorney-General v. Pickering-Reference to the Master as to charity, mo

2. That such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the ease of the plaintiff, and by the 68th order, that "after the plaintiff has filed or undertaken to file a replication, or after the expiration of four weeks from the time when the answer, or last answer is deemed sufficient, a special order for leave to amend a bill is not to be granted without further affidavit, showing that the matter of the proposed amendment is material, and could not with reasonable diligence have been In re Godolphin Mining Company. April 24,

sooner introduced into such bill.” 25

26.—In re Hall's Charity Cur, ad, vult. 25, 28, 29.—Morgan v. Morgan—- Cur. ad. +227. Whichery. Hume Part heard.

vult.

Wilcock and Terrell in support of the appeal; ORDER SUSPENDING CALL.-DISCHARGE.-
Walpole, R. Palmer, Hallett, Grove, Martindale,
Tripp, Headlam, and Fooks for the several defend
ground that the plaintiff had

ants contra, on

Some application of the official an order

On
order was discharged suspending an order
by the Master for a call of 41. per share,
ball 8 10 100 „buansool love to smymung toi mestom no 9bum 201 79b70 MA

not attempted to get in Heath's answer, nor

.12

Superior Courts: V. C. Knight Bruce.-V. C. Lord Cranworth.

upon a composition being entered into with all the contributories, except two, one of whom was out of the jurisdiction, and the other an insolvent, for payment of 3l. 9s. 6d. per share, whereby a sufficient sum was in hand to discharge the debts and liabilities of the company, the Master approving of the compromise, and the costs of the parties obtaining the former order being paid out of the estate.

THIS was a motion on behalf of the official manager of this company, for the discharge of an order made on 30th November last, suspending a call of 47. per share, which had been directed to be made by Sir George Rose, the Master charged with the winding up of its affairs, until further order, with liberty for two persons, therein named, to take certain proceedings, which were suggested, would avoid the necessity of making so large a call.

Hislop Clarke, in support, said, that a composition had been made with all the contributories, except one who was an insolvent, and the other out of the jurisdiction, under which 3l. 9s. 6d. had been paid per share. The company's debts and liabilities had been discharged, and the Master acceded to the compromise. Follett, for the parties interested, consented, on payment out of the estate of the costs of the parties who had obtained the order of No

vember last.

The Vice-Chancellor said, that as the Master considered the arrangement a proper one, the order would be discharged, the costs to be paid out of the estate.

director, 300 shares, in consideration of his services, but being a covenantor in the company's deed of settlement, he could not execute it. His brother, R. H., however, on his representation, executed in respect of 150 shares. The directors afterwards rescinded their former resolution allotting the shares, and W. H. returned the 150 scrip certificates: Held, on appeal from and reversing the decision of the Master, that R. H. was liable as a contributory. THE managing committee of this company had allotted 300 shares to William Holt, the managing director, but he being a covenantor did not execute the deed of settlement, and his brother, Robert Holt, agreed on his representation, to execute it in respect of 150 of such shares. The directors, on December 28, passed a resolution rescinding the allotment of shares to William Holt, on the ground that they considered his salary as managing director ought not to be paid in shares, and in the following June the scrip certificates were returned. The company had been completely registered. The Master having excluded the name of Robert Holt from the list of contributories on the ground that he was only a trustee for his brother for the 150 shares, this appeal was presented against such decision on behalf of the official manager.

Bethell and Roxburgh, for the official manager, in support; Cairns for Robert Holt, contrà.

The Vice-Chancellor said, that the respondent, by executing the deed, had entered into an agreement with persons apart from the diApril 23.-Exparte Hollingsworth, in re Hol-rectors, and he was subject to all the liabilities lingsworth Hayes and others, respondents arising therefrom, and the appeal must be alOn appeal from Commissioner, certificate suslowed, and the respondent's name inserted in pended for three calendar months, to be of 2nd the list as a contributory for 150 shares,—the class, and to protect merely from arrest. costs of the official manager to come out of the estate.

24.-Marquis of Exeter v. London and North Western Railway Company-Motion for injunction to restrain defendants from proceeding with certain works, stand over with liberty to bring action.

-26.-Bensusan v. Nehemias-Judgment on construction of will.

25.-Mortimer v. Hartley-Certificate of Court of Exchequer confirmed.

26. In re Worcester Corn Exchange Company-Order for winding up.

· 26.-In re Hough's Estate Reference for appointment of new trustees..

28.-Dawson v. Oldham-Stand over.
28.-Woodford v. Woodford-Stand over.
28.-Rose v. Smith-Stand over.

Vice-Chancellor Lord Cranworth.

In re Independent Assurance Company. April 25, 1851.

WINDING-UP ACT. CONTRIBUTORY EXE

CUTING DEED OF SETTLEMENT.

The committee of management of a railway company awarded W. H., their managing

Superior Courts: V. C. Turner.-Queen's Bench.
Vice-Chancellor Turner.

South Devon Railway Company v. Stevens.
April 24, 1851.

13

rule for a new trial of an action in assumpsit to recover from a shareholder the price of timber supplied for the use of the mine.

THIS was a motion for a new trial of this action which was in assumpsit against the deferdant, a shareholder in the Wheal Walter Mine, for timber supplied for the use of the mine, and at the trial of which, before L. C. B. Pollock, at the last Devonshire Assizes, the plaintiff had obtained a verdict for 2311.

MOTION FOR DELIVERY UP OF SHARES. The Court refused a motion for delivery up of certain shares in the plaintiffs' company to the defendant in a claim for the specific performance of an agreement to execute a mortgage of such shares to secure a sum It appeared that, to prove the defendant was due to the plaintiffs, the defendant offering a shareholder in the company, a certificate was to pay the amount settled by the result of put in evidence of the assignment and transfer the account to be taken under the claim, of certain shares to the defendant, his execuunless upon the terms of giving the plain- tors, administrators, and assigns, subject to tiff's all they sought by their suit. the same rules, orders, and restrictions, and on the same conditions, as the same were held THIS was a claim filed under the Orders of immediately before the execution thereof, toApril, 1850, to enforce the specific perform-gether with a memorandum, signed by the deance of an agreement entered into by the de- fendant, of his having agreed to accept and fendant to mortgage to the plaintiffs 450 shares take them, subject to such rules, orders, rein their company, of which he was a proprietor, strictions, and conditions, but the document to secure a debt due to them. had not been registered; and the cost book was also produced.

*

A motion was now made on behalf of the defendant that the plaintiffs might be ordered to deliver up the shares to the defendant on payment of the amount claimed, to be settled by the account taken under the claim.

James Russell and Cairns, in support, contended that the company would be protected by payment to them of the amount claimed and the shares being only deposited by way of security.

The Vice-Chancellor (without calling on the Solicitor-General and Charles Hill, contrà,) said, that the motion must be refused with costs, as the Court would not interfere to give relief partly on interlocutory motion and partly by decree, unless by consent or upon terms of giving the plaintiffs all they asked for.

Kinglake, S. L., in support, on the ground that the evidence did not show the defendant was a shareholder, and that the mine being worked on the cost book principle, no one had authority to pledge the credit of the shareholders, citing Ricketts v. Bennett, 4 C. B. 686.

The Court said, that as the evidence was sufficient to show the defendant was a share

holder, and the cost book did not contain any evidence limiting the liability, the defendant was prima facie liable for the goods which had been supplied for the use of the mine. It was therefore incumbent on the defendant to show any special circumstances within the knowledge of the plaintiff creating a limited liability, and the rule must be refused.

April 23.-Marker v. Marker― Judgment on motion for injunction to restrain defendant Drummond v. Killinghurst. April 17, 1851. from cutting down certain ornamental timber. 25, 26, 28.-Milne v. Milne- Cur. ad.

vult.

Bailey v. Osborne. April 23, 1851.

MINING CO-PARTNERSHIP. -COST BOOK.

LIABILITY OF SHAREHOLDERS FOR GOODS

SUPPLIED FOR MINE.

Held, that a shareholder is liable for goods supplied to a mine conducted on the cost book principle, unless it can be shown that the parties dealt upon the terms that the several shareholders should not be held personally liable. So held on motion for a

RULE FOR SECURITY FOR COSTS.-PLAIN-
TIFF NOT DOMICILED ABROAD, AND RE-
SIDING IN THIS COUNTRY.

A rule was refused to stay, until security
given for costs, the proceedings in an action
brought by a native of Philadelphia, a
sailor on board the defendant's vessel, to
recover certain gold dust, where the plain-
tiff was residing in this country, and was
not shown to have any domicile abroud.

THIS was a motion for a rule nisi to stay the proceedings, until the plaintiff should give security for costs in this action, which was brought in trover to recover from the defendant, the captain, by the plaintiff, a native of Philadelphia, and hired as cook on board the which the plaintiff alleged to have given to the defendant's vessel, a quantity of gold dust defendant, who denied, however, having re

ceived it.

that although the plaintiff was at present resiGreenwood, Q. C., in support, contended dent in this country, he had no permanent

14

2. Superior Courts Queen's Bench.Q.B.P: Court?

residence, but was only residing temporarily here, citing Olita v. Johnson, 5 B. and Ald. 908.

{O 3{1V!, ! t )

The Court said, that where a plaintiff, a foreigner, was residing in this country, and was not shown to have any domicile out of England, the presumption was that he would remain here, and it was therefore incumbent on the party applying for security to show the residence was only temporary. The rule was aecordingly refused.

D19

April 23. Rowe v Manser Rule nisi to set aside verdict, and for new trial, on the ground of verdict, being against evidence, and on affidavits.9.11 90 1 23. Regina V. Great Western Railway Company Stand over. in 961 of 95 123. Doe 'dem. Newman v. 1! Busheh Rule nisi on leave reserved to enter a nonsuit, 917: 24.Fullager-Cur. ad. vult.

2. Prancham Rule re

fused for new trial on the ground of misdirec

#Queen's Bench Practice Court, @A (Coram Mr. Justice Coleridge.)

In re Hunt v. Great Northern Railway Com-
blog pany, April 17, 1851,
BAILWAY COMPANY.-TIME TO RECEIVE

IN

PAYMENT OF TOLLS.-TITLE QUESVATION! →→ COUNTY COURTS. JURISDIC-STION.

On motion, a rule was refused for a prohibition to the judge of a County Court from further proceeding in a plaint to recover damages against the Great Northern RailFaway, for having refused to carry coals unless certain tolls were paid for carrying back certain empty carriages, to which, -under their act, they were entitled, and the Judge having decided on an objection that onthe title to tolls was in question, that it was not on the ground that the question was merely as to the time of payment. THIS was a motion for a rule nisi, on behalf of the defendants in this plaint, for a prohibition to the Judge of the County Court of carried coals in the carriages of other persons Barnet, Hertfordshire, against further proceedings therein. It appeared that the defendants 24. Armistead v. Wilde – Rule nisi to set on payment of certain tolls, and they had aside verdict for defendant, and for new trial power under their act to make a charge of on the ground of misdirection.. 44d. per mile for the waggons or trucks of such 24.Milvain v. Cassavetti Rule nisi persons when returning empty. It appeared refused for new trial on the ground of misdi-that the plaintiff had sent some coals from rection, but granted on the ground of verdict Leicestershire to Peterborough, and required the defendant to transmit them to Potter's being against evidence." had 24.-Regina v. Southampton Dock Com-Bar, near London, but that the company pany-Rule nisi to set aside side-bar rule refused to transmit them, unless all their costs obtained by respondents,,

• If

tion. nodw

241 pany Rule nisi to set aside verdict for plain Walton v. Midland Railway Comtiff, and for new trial.. bu beni

Wadsworth, in support, cited the 9 & 10 Vict. c. 95, s. 58, which enacts, that "all pleas 26, 5, — Regina v. Russell-On certiorari of personal actions, where the debt or damage conviction quashed for infringement of patent claimed is not more than 207., whether on baunder the 6 & 7 Vict. dist lance of account or otherwise, may be holden Regina y. Coward-On quo war- in the County Court, without writ; and all TTH 26. Regina ranto to town councillor of borough of Cam such actions brought in the said Court shall be bridge, judginent for the crown. ན་མ,T “tt; heard and determined in a summary way în a

Part heard.

V.

65.

chester Regina y, Dean and Chapter of Ro- Court constituted under this act, and accord28-Regina, Proprietars of the Wes-ing to the provisions of this act: provided alWes-ways, that the Court shail il not have cognizance leyan ! Times Rule absolute for criminal in- of any action of ejectment, or in which the title formation for libel, 28.-Regina y Thoms y. Thomson-Rule absolute or to any toll, fair, market, or franchise shall be owen to to any corporeal or incorporeal hereditaments, for arrest of judgment. we got bouton plain question."celingArly Machlies? 28, Bondy Manning Rule refused for prohibition to County Court in this case. 129, Earl of Chichester v Hall On special case, judgment for plaintiff, £9, Weddell v. Robinson-On special case, judgment for defendant.