June 19. NATIONAL PROVINCIAL BANK of England v. Sheffield. used, on the terms of the vendors paying the costs of the day. | Kekewick, J (ffect as an order made by the judge, provided that the parties [Mr. Lavie, the Registrar in Court, referred to a manuscript note of In re Travis, O'Sullivan v. Young (C. A. No. 2, 6 May; 1885) in which, objection having been taken to the reading of an affidavit which had not been before the chief clerk, Cotton, L.J., said that all affidavits filed before the matter came before the judge in Court could be properly read, if notice of the intention to read them had been given, though they had not been used before the chief clerk. No time had been fixed in that case.] Solicitors: Pickett & Mytton; Beaumont & Son. W. L. C. Security-Release-Novation--Bankers. J. Fleming had deposited with a banking company the title deeds of a house by way of security for advances. He died in 1881 owing 30007. to the banking company, and his widow and executrix gave to the banking company a memorandum of deposit of the deeds and a bill of exchange for 3000l., and she had other dealings with the banking company. Mrs. Fleming died in 1887. The banking company brought this action against the personal representatives of Mr. Fleming and of Mrs. Fleming to enforce the security given by J. Fleming. Warmington, Q.C., and G. Henderson, for the banking company. the banking company had taken the liability of Mrs. Fleming in substitution for the securities given by Mr. Fleming. KEKEWICH, J., held on the facts that the company did not intend to give up Mr. Fleming's security on his deb. When bankers hold a security from a customer, the Court would not hold that the security had been given up, and personal liability accepted in substitution for the security, unless there was cogent evidence of a release by the bankers. Solicitors: Fut voye & Co.; J. A. Ellis. C. M. Mortgagor and Mortgagee-Successive Incumbrancers-Assignment from Purchaser for Value without Notice-Trustee for Mortgagor -Tacking. This was an action for redemption in which the question was whether the defendant P., in whom certain incumbrances, admitted to be prior to that of the plaintiff, had become vested, was entitled to tack an incumbrance posterior in date to the plaintiff's, of which that defendant was also transferee, and on the security of which B., the original incumbrancer, was alleged to have made his advance without notice of the plaintiff's security. Hastings, Q.C., and Lambert, for the plaintiff. Robinson, Q.C., and F. H. Colt, for the defendant. STIRLING, J., assumed that B. at the time of the advance and security had no notice of the plaintiff's charge, and said that it was old law that, as a general rule a purchaser for value with out notice can for valuable consideration assign to another who has notice the benefit of his own position; but from this general rule there were certain recognised exceptions. The mortgagor could not, by taking an assignment from a purchaser for value, squeeze out one of his own incumbrancers; and his Lordship held that under the facts of the case, the defendant P., as trustee under a certain deed for X., the mortgagor, stood so nearly in the position of X. that in his dealings with any of X.'s mortgagees he must be taken to be acting on X.'s behalf, and so could not prejudice or defeat the rights of X.'s mortgagees any more than X. himself could. His Lordship therefore held that the defendant P. was not entitled to tack as against the plaintiff. Solicitors: W. Hilton Perkin; H. Tyrrell. W. W. K. PROBATE, DIVORCE, AND ADMIRALTY June 13. Judicial Separation-Wife's Separate Property-Inquiry by the Registrar as to Title-Married Women's Property Act, 1882, s. 17. obtained a decree for a judicial separation on the ground of her In this case the petitioner-the wife on April 21st, 1853 husband's cruelty. On March 6th the petitioner obtained an order restraining her husband from dealing with the furniture then in his house, which the petitioner alleged to be her separate property. Subsequent to the decree, the petitione gave notice of motion for an order on the respondent to deliver up the furniture, but the respondent having claimed the furniture as his own, an application was made for an inquiry as to the title to the furniture. Married Women's Property Act, which "in any question by the registrar as to the title to the furniture, and to orde W. L. NOTICE TO SOLICITORS. FRIDAY, June 29. Turner v. Read. Appeal from Huddleston, B., and Charles, J. Dismissed. Allowed. MONDAY, July 2. Walsh v. Whiteley and Another. Appeal from Wills and Grantham, JJ. Cur. adv. vult. With the view of insuring the greatest possible accuracy and rapidity in the various publications connected with the LAW Holmes v. Brierley. Appeal from Huddleston, B, and Charles, J. REPORTS, the Council will be obliged, if the Solicitors to whom application is made by any Reporter acting for the Council, will as soon as possible after application furnish the necessary Papers, together with any information in their power as to the names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Pro- In ession in furnishing the papers required to prepare accurate reports. Guardians of The Medway Union v. Guardians of The Bedminster re Prohibition to Mayor's Court in an action between C. Broad v. WEDNESDAY, July 4. Kyshe v. Holt, Childs, and Another. Appeal from Cave and A. L. Attenborough v. Lawrence. Appeal from Wills and Grantham, JJ (In re Judgment obtained in Ireland (Q. B. Div.) in an action. Cave, J. 160 160 Harrison v. Harrison. . C. A. 158 Cave, J. GRAND JUNCTION CANAL COMPANY v. PETTY AND OTHERS (Highway-Dedication, Power to make-Land vested in Company for Statutory Purposes) HOLMES V. BRIERLEY (Action for Breach of Promise of MarriagePromise by Infant-Ratification or New Promise after Full Age-Intention-Question for Jury-Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), 8. 2) C. A. 158 LEWIN . TRIMMING. TRIMMING v. LEWIN AND CHADWICK & SONS, by Counter-claim (Practice-Costs-Counter-claimCounter-claim against Third Person-Trial by Judge without Jury-Discretion of Judge-County Courts Act, 1867, 8. 5— Judicature Act, 1873, 8. 24, ɛub-s. 3—Rules of Supreme Court, 1883, Order XXI., rr. 11, 12, 13, 14; Order LXV., r. 1) C. A. RIG. v. LORD TRURO (Registry of Deeds in Middlesex-Attesting Witness-Commissioner to administer Oaths-7 Anne, c. 20-15 & 16 Vict. c. 80—16 & 17 Vict. c. 78, 8. 2) C. A. 158 COURT OF APPEAL. RECORD OF BUSINESS. COURT I. THURSDAY, June 28. 160 (Barnett v. Isaacson. Appeal from Huddleston, B., and Charles, J. Barnett v. Isaacson. Appeal of Defendant from same order. Allowed. Morgan v. Jenkins. Appeal from Huddleston, B., and Charles, J. Dismissed. No. 24.-1888. Reg. v. Lord Truro. Dismissed. COURT II. THURSDAY, June 28. Appeal from Butt, J. Allowed. Appeal from Kekewich, J. Dismissed. Appeal from Kekewich, J. Judgment reserved. FRIDAY, June 29. Appeal from Lord Coleridge, C.J., and Mathew, J. Supreme Court of Judicature. Registry of Deeds in Middlesex-Attesting Witness-Com From Q. B. Div. COURT OF APPEAL.. missioner to administer Oaths-7 Anne, c. 20-15 & 16 Vict. c. 80-16 & 17 Vict. c. 78, s. 2. This was an appeal by Lord Truro from a decision of Lord Coleridge, C.J., and Mathew, J. (ante, p. 91), who at the same June 26. time adopted a previous decision of Stephen and Wills, JJ., on two other points in the same matter. GRAND JUNCTION CANAL Co. v. PETTY AND OTHERS. Channell, Q.C., and Trevelyan, for Lord Truro. R. T. Reid, Q.C., and W. Murray, for the prosecutor. Appeal from order of Queen's Bench Division refusing a new decision below, and held, 1, that a deed of enfranchisement of trial or to enter judgment for the plaintiffs. The facts were, so far as material, as follows: The action was for trespass on the plaintiffs' towing-path, the defence being that the locus in quo was a public footway and the alleged trespasses were committed in the exercise of the public right of way. The plaintiffs were a canal company and were authorized by their Acts to acquire land by agreement or compulsorily for the purpose of making certain canals and towing-paths. They had accordingly acquired the locus in quo and used the same for the purposes of a towing-path under their statutory powers. Evidence was given shewing user of the towing-path as a footway by the public during a long period of time. The plaintiffs contended (inter alia) that they had no power to dedicate. The question whether there was a dedication by the plaintiffs being left by the learned Judge at the trial to the jury, they found that there had been such a dedication. No evidence appeared to have been given that the use of the towing-path as a footpath by the public was in any way inconsistent with its use by the plaintiffs for the purposes specified in their Acts of Parliament. The learned judge entered judgment for the defendants on the finding of the jury. Application was made to the Queen's Bench Division for a new trial on the ground of misdirection, or to enter judgment for the plaintiffs for nominal damages, but the Divisional Court (Lord Coleridge, C.J. and Mathew, J.), refused the application. W. Graham, and Etherington Smith, for the plaintiffs, contended that, where a statute authorizes a company to take land compulsorily for specific purposes, they cannot apply it to other purposes, and therefore cannot dedicate it to the public as a highway. They cited Mulliner v. Midland Railway Company (11 Ch. D. 611), and Bostock v. North Staffordshire Railway Company (4 E. & B. 798). Hammond-Chambers, for the defendants. THE COURT (Lord Esher, M.R., Lindley and Lopes, L.JJ.) held, following the decision in R. v. Inhabitants of Leake (5 B. & Ad. 469), that land acquired under an Act of Parliament by a company for the purposes of their undertaking as specified by such Act may be dedicated by them as a public highway, if such use by the public be not incompatible with the objects prescribed by their Act, and that the plaintiffs had power to dedicate the locus in quo as a public footpath subject to its use by them as a towing-path. They therefore dismissed the appeal. Appeal dismissed. Solicitors for the plaintiffs: Field, Roscoe & Co. E. L. a copy hold, being a conveyance of a freehold, was not within the exception of conveyances of copy hold estates in the Registry Act, and ought to be registered. 2, that it was not necessary that either of the witnesses to the memorial should be a witness to the execution of the conveyance by the grantor. 3, that the oath of the witness had been properly taken in London before a person who was a commissioner to administer oaths in the Supreme Court, and a London commissioner to administer oaths appointed under 16 & 17 Vict. c. 78. Solicitors: Wainwright & Baillie; Munton & Morris. H. C. J. June 29. From Q. B. Div. HOLMES v. BRIERLEY. Appeal by the plaintiff against an order of a Divisional Addison, Q.C., for the plaintiff. THE COURT (Lord Esher, M.R., and Lindley and Lopes, L.JJ.) allowed the appeal. LORD ESHER, M.R., was of opinion that in such a case the right question to be left to the jury, if there was any evidence to go to them, was the question stated by Lopes, L.J., in Northcote v. Doughty (4 C. P. D. 385), viz., was what was said or done and executors of R. Briant's will, raising the question whether, intended by the party to be a new promise or merely a ratifica- in distributing the testator's residuary estate, they were entitled tion of the old promise? In the present case, that question to deduct from Mrs. Shackel's share the debt due from her had been substantially left to the jury. The question then husband to the testator's estate, or whether Mrs. Shackel was remained, whether there was evidence upon which the jury entitled to her share intact and to have it settled on herself might reasonably find that there was a new promise and an and her children. acceptance of it. His Lordship declined to lay down generally what would amount to a new promise as distinguished from a mere ratification of the old one. Upon the evidence in the present case he thought it was open to the jury as reasonable men to come to the conclusion that there was an intention to make a new promise. And if so, they having found that there was such an intention, their verdict could not be set aside. LINDLEY and LOPES, L.JJ., concurred. Marten, Q.C., and Vaughan Hawkins, for the plaintiffs. A. W. Rowden, for other parties. KAY, J., said it was perfectly well settled by Ranking v. Barnard (5 Madd. 32), that, as against the right of a husband in a legacy given to his wife, the executors of the testator might set off a debt which had become due from the husband to the testator in the latter's lifetime. Then arose the question, Supposing the wife to assert her equity to a settlement, the property given to her being such that she could assert her equity in respect of it, did that equity precede the executors' Solicitors: Willan, Manchester; Burn & Berridge, for right of retainer, or did the right of retainer precede the Ramsden, Sykes, & Ramsden, Huddersfield. LORD ESHER, M.R., added that in Ditcham v. Worrall (5 C. P. D. 410) the only question really decided was, that there was evidence to go to the jury. Kay, J., W. L. C. High Court of Justice. CHANCERY DIVISION In re BRIANT. POULTER v. SHACKEL. equity? Upon the authority of Carr v. Taylor (10 Ves. 574) and the dictum of Lord Selborne in In re Batchelor (Law Rep. 16 Eq. 481, 483)-in which dictum he concurred-he should hold that the wife's equity preceded the right of retainer. In Knight v. Knight (Law Rep. 18 Eq. 487), which had been cited as an authority to the contrary, he did not think that Hall, V.C., intended to overrule Carr v. Taylor, or In re Batchelor, neither of which cases were cited before the Vice-Chancellor. There must therefore be a declaration that Mrs. Shackel's equity to a settlement took precedence of the right of retainer for her husband's debt, and also a declaration settling 500%. of her June 25. share upon her for life without power of anticipation; and after her death, the capital to go to such of her children as she should by will appoint, and in default of appointment, to such of her children as, being sons, should attain 21, or, being daughters, should attain that age or marry, in equal shares: and in default of such children, the fund would belong to the wife. The rest of the share would be retained by the executors, and be applied for the benefit of the other residuary legatees exclusive of the wife. Husband and Wife-Legacy to Wife-Husband's Debt to Testator R. Briant, who died in 1877, by his will, dated in 1875, devised and bequeathed his residuary real and personal estate to his trustees and executors upon trust for his wife for life; and after her death for sale and conversion and to pay the proceeds to all his children in equal shares "for his, her and their own absolute use and benefit." And the testator proceeded to settle the share of a married daughter, Mrs. Shepherd, upon herself, her husband and children; and he directed his trustees to deduct any debt due to him from any or either of his children, with interest at 5 per cent., from the shares or share to which they, he or she were entitled under that his will. The testator left six children, one of whom, a daughter, had, in his lifetime, married Edward Shackel. The testator's widow died in 1886. The testator's residuary estate consisted of a sum of about 40007. He had advanced his son-in-law, E. Shackel, various sums of money amounting to 750l., which sum remained due from him to the testator at the time of the death of the latter. Mr. and Mrs. Shackel were both now living, but Mrs. Shackel was in infirm health. They had six children, all living. No settlement had been made on the marriage of Mr. and Mrs. Shackel. The husband had no means beyond an income of about 60%. a year, and the wife had no other means than what she took under her father's will, and an income of about 70%. a year for her life under the will of an uncle. This was an originating summons taken out by the trustees This was a creditor's action to administer the estate of the late Lord Churchill. The estate was insolvent. The executors of the Marquis Conyngham had paid a sum of money to the Crown under a bond which the Marquis Conyngham had executed as surety for Lord Churchill. The executors claimed to rank as creditors of the estate, in place of the Crown, in priority to the other creditors. The question whether they were entitled to the same priority that the Crown would have been entitled to was now argued. Cozens-Hardy, Q.C., and W. F. Hamilton, for the claimants. Bankruptcy-Execution Creditor-Seizure and Sale-From what H. Reed, for the execution creditor. CAVE, J., held that reason and convenience required that the fourteen days should run from the date when the levy was perfected by seizure and sale, that was the date of the sale, and not from the date when the last payment on account of the purchase-money was received by the sheriff. In this case therefore, the sale was completed on the 9th of February, and the execution-creditor was entitled to the proceeds. The petition was one day too late. Solicitors: Barton & Pearman; W. B. Styer. Q. B. Div. QUEEN'S BENCH DIVISION. LEWIN v. TRIMMING. June 18, 29. TRIMMING v. Lewin and CHADWICK & SONS, by Counter-claim. Practice - Costs - Counter-claim-Counter-claim agains! Third Person-Trial by Judge without Jury-Discretion of Judge— County Courts Act, 1867, s. 5-Judicature Act, 1873, s. 24, sub-s. 3-Rules of Supreme Court, 1883, Order XXI., rr. 11, 12, 13, 14; Order LXV., r. 1. Appeal from the decision of Grantham, J., at chambers, affirming the decision of the master, who had refused to tax the costs of the defendant as against the defendants to the counterclaim. The action was brought by the plaintiff, the landlord of a shop in West Brompton, to recover rent from the defendant, Mrs. Trimming, his tenant. The defendant by her counter-claim claimed damages against the plaintiff and Messrs. Chadwick & Sons, bailiffs employed by the plaintiff, for illegal distress. Stephen, J., before whom the case was tried without a jury, gave judgment for the plaintiff for 1471. 7s. 6d. in respect of rent and also on the counterclaim, and judgment for the defendant against Messrs. Chadwick & Co., defendants to the counter-claim, for 27. 5s. 6d.," with such costs as they would be entitled to by law." The master and Grantham, J., held that sect. 5 of the County Courts Act, 1867, applied to the counterclaim against the third parties, and that therefore, as the defenJuly 2.dant had recovered under it less than 107. in tort, he was not entitled to costs. H. L. F. Small Bankruptcy-Practice-Taxation of Costs-Bankruptcy In this case, which was a small bankruptcy, the official receiver, as trustee, obtained in the County Court an order against T. Jaynes for payment of the sum of 217. Os. 11d. paid to him by the bankrupt, on the ground that such payment was a fraudulent preference. On the 8th December, 1887, the decision of the County Court Judge was reversed on appeal, and the trustee was ordered to pay the appellants' taxed costs of the appeal and in the Court below, with liberty to recoup himself out of the estate the costs so directed to be paid by him. In taxing the appellant's bill of costs the taxing master held that the costs must be taxed on the lower scale, on the ground that they were payable out of the estate within the meaning of rule 112 of the Bankruptcy Rules, 1886. Jaynes appealed against this decision. Ringwood, for the appellant, contended that the rule did not Beddall, for the defendants. Buckmaster, for the defendants to the counter-claim. Cur, adv. vult. THE COURT (Huddleston, B., and Charles, J.) held that, the case having been tried by a judge without a jury, the costs were "in the discretion of the judge," under Order LXV., r. 1; that Stephen, J., had not exercised his discretion, and that the defendant was therefore not "entitled by law" to costs. They also (the point having been the principal matter argued before them) expressed the opinion that the effect of s. 24, sub-s. 3, of the Judicature Act, 1873, and Order xxx., rr. 11, 12, 13, 14, is not to render sect. 5 of the County Courts Act, 1867, applicable to the case of a counter-claim by the defendant against a third party. They dismissed the appeal, but without costs. Solicitor for defendant: R. Chapman. Solicitor for defendants to counter-claim: Joseph Fox. H. D. W. |