cannot, upon the original debtors becoming bankrupt, prove against their estate, whilst their co-conuzor remains solvent. This rule is not confined to cases of partnership, but applies to contractors generally. Where creditors have a judgment on a bond given as collateral security for advances to be made, the doctrine of merger does not apply, the judgment being itself collateral; and the creditor may prove on the foot of the simple contract. A creditor volunteering to aid the assignees, in objecting to a proof, will not be allowed costs out of the estate.

Court of Appeal (before the Lords Justices). February 22 and 23, 1856.

EVANS V. BREMRIDGE.

Principal and Surety - Equitable Defence at Law ·

tice - Injunction.

Contract Defec

The plaintiff had been sued by the defendant upon a deed executed by him, purporting to contain a joint and several covenant by himself and another as co-sureties; but the deed was never executed by the intended co-surety, and this was pleaded by the present plaintiff, by way of equitable defence to the action at law. The defendant demurred to the plea, and before argument of the demurrer, the plaintiff filed this bill in equity.

Held, that the plaintiff was entitled to relief, and that the Court would interfere in the existing state of the pleadings, by injunction to stay all proceedings in the action, and under the deed.

Exchequer Chamber. February 20, 1856.

HILTON V. ECKERSLEY.

Bond - Illegality - Agreement of Masters to Defeat Combination of Workmen Restraint of Trade.

The condition of a bond recited that the obligees were mill-owners in W., employing many work-people and servants, and that there were societies or combinations existing whereby persons were deterred by fear of social persecution from hiring there, and the legal control of the obligees over their own property was interfered with, which combinations were supported by an arbitrary rate imposed upon persons receiving wages from the obligors, and that for their own protection, &c. it had been agreed that the

obligees should for twelve months carry on their works in regard to wages, hours of work, times of engagement of work-people, and general discipline and management, in conformity with the resolution of a majority of the obligors present, at a meeting to be held for the purpose of carrying the agreement into effect. Now if they should conform, &c., bond to be void.

Held, the condition was illegal, as being a restraint of trade by preventing the obligees from severally carrying on their own business, each according to his own discretion.

Court of Chancery (Ireland). February 11 and 12, 1856. CLARKE V. M'NALLY.

Champerty

Contract to Advance Money to carry on a Suit. Money was advanced on the security of a bond with warrant to enter judgment thereon, for the purpose of enabling a person to prosecute her claim upon the property of one deceased, alleged by her to have been her husband. The bond was also to stand as a security for further advances, for the same purpose.

Held, that the contract was illegal on the ground of maintenance.

V. C. Stuart's Court. Monday, February 18, 1956.

SUGDEN V. CROSLAND.

Attempted Sale of Office by New to Old Trustee.

Testator by his will which contained a power of appointing new trustees, appointed C. one of his trustees and executors. Subsequently, by a codicil, he revoked the appointment of C. and appointed H. in his stead. After the testator's death, H. in consideration of a sum of £75 paid to him by C. retired from the trusteeship in favor of the latter, who was appointed by deed under the power, a a trustee in his place. It was stated that the sum of £75 formed no part of the testator's assets, but was paid by C. out of his own pocket.

The VICE CHANCELLOR said, that the deed which af fected to appoint Crosland a trustee in the place of Horsfield, was fraudulent and void, as an execution of the power of appointment contained in the testator's will. The deed must, therefore, be delivered up to be cancelled. It had been asked, further, that the sum of £75

might be considered as part of the trust fund, and might be directed to be repaid by Horsfield for the benefit of the cestui que trust. Cases had occurred in which trustees had paid other persons to discharge duties which were properly attached to their office; but this was the first case in which the court had had to deal with a trustee who had made a sale of his office. It did not seem to him to signify how the profit was derived, whether from the trust property or from the mere office of trustee. The same principle was applicable in the latter as in the former case. He must, therefore, hold that the sum of £75 must be repaid for the benefit of the cestui que trust. The deed being fraudulent and void, he must hold that no estate passed under it, and would not order a reconveyance.

Court of Exchequer. January 28 and February 20, 1856. WIGGETT V. Fox AND ANOTHER.

Master and Servant

Sub-contractor · Liability for Injury by Negligence of Workman.

A. was employed by B., who was a servant of C. and D., contractors for the Crystal Palace. B. was employed to do certain work by the piece, and he paid the men employed by him, but had no power to dismiss them without the consent of C. and D. In the course of the execution of the works, by the negligence of another workman in the employment of C. and D., A. was killed.

February 20.-ALDERSON, B. This was an action brought by the plaintiff, as administratrix, to recover damages for the loss sustained by her in consequence of the death of her husband. It appears that the deceased had been a workman employed under a sub-contractor of the Crystal Palace, at Sydenham, to do work there, and the death arose from the carelessness or negligence of another workman, engaged in doing business for the defendants, who were the general contractors for the whole, under whom the sub-contractor, of whom the deceased was a servant, had been engaged to perform a definite portion of the whole contract. The jury found that the deceased was so employed by the sub-contractor, and not in that sense directly, by the defendants. We think that this question must be determined in favor of the defendants, and a nonsuit must be entered. The principle upon which our opinion is founded, is to be found in the case of Hutch

inson v. The Newcastle, York and Berwick Railway Company, 5 Ex. 343, and it is this: That a master is not generally responsible to one servant for an injury occasioned to him by the negligence of a fellow-servant, while they are acting in one common service; and the reason for that in another part of the judgment, is stated to be that the servant undertakes, as between him and the master, to run all ordinary risks of a service, including the risk of negli gence of the other servants engaged in discharging the work of their common employer. Here both servants were at the time of the injury engaged in doing the common work of the whole contract, for the contractors, the defendants; and we think that the sub-contractor, and all his servants, must be considered as being, for this purpose, the servants of the defendants, whilst engaged in doing the work, each directing and limiting his attention to work necessary for the completion of the whole. And we should not give full effect to the principle which governs such cases, which, as stated in Priestly v. Fowler, 3 M. & W. 1, mainly arose from the enormous inconvenience that would come from holding the common employer liable under such circumstances. But we are not to extend that as far as the present case. Here the workman comes into the place to do the work, knowingly and avowedly with others. The workman, as was suggested in Priestly v. Fowler, may, if he thinks fit, decline any service in which he apprehends injury will result to himself; and in cases in which danger is to be apprehended, he is just as likely, and probably more so, to be acquainted with the risk he runs, than the common employer. If we were to hold the defendants liable, we should be obliged to hold that every contractor, where various painters, carpenters, plumbers, or bricklayers, and the like, were employed, in building a house, would be liable for all accidents inter se, to the various workmen so employed on the common object, and perhaps it is even dif ficult to say whether it could stop there. If, indeed, there were any ground for holding the person or persons, whose act caused the death of the plaintiff's husband, were persons not of ordinary skill and care, the case would be different, for the defendants were certainly bound to employ persons of ordinary skill and care in the work; but there is no suggestion of this sort. We think, therefore, a nonsuit should be entered; the only liability is on the servants, by whom the act itself was done, not upon the defendants.

V. C. Kindersley's Court. January 24, 29, and March 8. DARBY V. DARBY.

Partnership - Conversion into Personalty of Land purchased by Partners for Partnership purposes.

A. and B. jointly purchased certain freehold and copyhold estates, for the purpose of a building speculation, and with a view to a resale of the land in small parcels. B. died intestate. Upon a bill filed for the administration of his estate, under the direction of the court,

Held, that the land having been purchased by them as partners, for the purpose of resale, the share and interest of B. in the estates so purchased, was, as between his real and personal representatives, to be considered as personalty and distributed accordingly.

V. C. Wood's Court. February 21 and 22, 1856.

MATHER V. FRASER.

Mortgage of Freehold — Fixtures.

The owners in fee of land, constructed a mill thereon, with machinery, mill-gear and other works, partly fixed to the soil and partly resting upon but not fastened to brick and other supports; mortgaged the freehold, mill, machinery, fixtures etc., using words sufficiently comprehensive to carry every thing affixed to the mill, and afterwards became bankrupt.

A bill was filed by the mortgagees against the assignees, praying an account, and a sale of the property or a foreclosure, and that the assignees might be enjoined from pulling down and selling any of the machinery, gear, etc., as they had begun to do.

Held, that all such machinery as was fixed to the soil, or attached to the freehold, and would, on the death of the owners of the free-hold, go to their heirs and not to their executors, passed under the mortgage deed; but that cisterns and other parts of the machinery supported merely by their own weight and not fixed to the ground, did not pass under it.

V. C. Stuart's Court. BOSTOCK V. THE NORTH

February 9, 11 and 19, 1856.

STAFFORDSHIRE RAILWAY COM

PANY.

Lands taken for Public Uses Rights of Compulsory Vendor.

The rights incident to an estate in fee-simple, which