8 Shrapnel v. Laing. Appeal from Stephen and Charles, JJ. Dismissed.

& 46 Vict. c. 43), ss. 7, 9-Form in Schedule, Deviation fromCovenant necessary for maintaining the Security.

Appeal from the judgment of the Queen's Bench Division, affirming the decision of the judge of the Westminster County Court.

The facts were as follows:-The plaintiffs in the action claimed under a bill of sale, and the sole question was whether such bill of sale was good. The bill of sale was given by way of security for a sum of money and interest thereon at 40 per cent per annum, and it was provided that, if the mortgagor did not pay the rent, rates, taxes and outgoing of the premises, on which the goods assigned might be, within seven days after the same respectively became payable, the mortgagees might, if they thought fit, pay such rent, rates, taxes, and outgoings, and all sums of money so paid by the mortgagees, with interest thereon after the rate aforesaid, should be charged on the goods assigned and be recoverable in the same manner as the principal moneys and interest secured by the bill of sale. The County Court judge held the bill of sale bad as not in accordance with the Bills of Sale Act, 1882, on the authority of Bianchi v. Offord (17 Q. B. D. 481). He accordingly gave judgment for the defendant.

Boxall, for the plaintiffs.

J. F. Clerk, for the defendant.

THE COURT (Lord Esher, M.R., and Fry and Lopes, L.JJ.) Part thought that Bianchi v. Offord (17 Q. B. D. 484) was rightly decided and that the judgment of the County Court judge was consequently correct. They therefore dismissed the appeal. Appeal dismissed.

Magnus v. Queensland National Bank. Appeal from Kay, J. Judgment reserved.

Cook v. New River Company. Stands over.

Solicitors for the plaintiffs: Nye, Greenwood & Moreton.
Solicitor for the defendant: J. C. Attenborough.

Morgan & Co. v. Windover. Appeal from Kekewich, J. Part heard.

WEDNESDAY, Jan. 25.

Easton v. London Joint Stock Bank. Appeal from North, J. Dismissed.

Porter v. Porter. Appeal from North, J. Dismissed.

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.

From Ch. Div.

Jan. 19.

In re BULWER LYTTON'S WILL.
KNEBWORTH ESTATE TRusts.

Settled Land Act, 1882, s. 26-Permanent Improvements—
Approval of Scheme-Payment out of Capital Moneys.

A scheme for the permanent improvement of settled property by providing an additional water supply, and thus rendering it available as a building estate, was submitted to the trustees for their approval by the tenant for life, and by them approved. In the execution of the works specified in the scheme the amount named in the original contract was considerably exceeded:

such extra expenditure having been fairly and properly incurred Held (per Lord Halsbury, L.C., Cotton and Bowen, L,JJ.) that in carrying out the scheme, the tenant for life was entitled to an order under the Settled Land Act, 1882, s. 26, for payment of the whole amount out of capital moneys forming part of the

Supreme Court of Judicature settled property in the hands of the trustees.

COURT OF APPEAL.

Hotchkin's Settled Estates (35 Ch. D. 41), distinguished.
Cozens-Hardy, Q.C., and Lambert, for the tenant for life.
Spencer Butler, for the trustees.

Solicitors: Lambert, Petch, & Shakespear; Walker & Mar

tineau.

From Q. B. Div.

Jan. 16.

REAL AND PERSONAL ADVANCE COMPANY, LIMITED v. Clears.
Bill of Sale-Bills of Sale Act (1878) Amendment Act, 1882 (45

F. G. A. W.

From Bkcy. Ct.

In re LONG.

Ex parte CUDDEFORD.

Jan. 20. | consent for the plaintiff for 507. on the claim, and for the defendants for 801. on the counter-claim. Costs to be taxed

Bankruptcy-Receiving Order-Petitioning Creditor's Debt according to the ordinary practice upon a trial by jury with Amount-Judgment Debt-Costs of abortive Execution-Bankruptcy Act, 1883, s. 6.

Trustee in Bankruptcy-Frivolous Appeal-Costs. Appeal by the trustee in the bankruptcy against the reversal by Cave, J., of his rejection of a proof of a debt.

Cooper Willis, Q.C., and Muir Mackenzie, for the appellant. Reid, Q.C., and Herbert Reed, for the respondent. THE COURT (Lord Esher, M.R., and Fry and Lopes, L.JJ.) were of opinion that the appeal was a frivolous one, and they dismissed it with costs, and directed that the trustee should not be allowed his costs out of the bankrupt's estate. Solicitors: F. A. Foster & Co.; Scott & Spalding.

such a result. Judgment was entered according to the terms of that verdict. The plaintiff obtained an order for taxation of his costs on the High Court scale. The master having taxed the plaintiff's and the defendants' costs, the defendants carried in objections to the taxation. The objections to the taxation of the plaintiff's costs were on the ground that the master (except as to certain items which he had disallowed) had allowed the plaintiff all such items as he would have been entitled to if he had a right to the general costs of the action. The objections to the taxation of the defendant's costs were on the ground that the master had disallowed all such items as the defendants were entitled to as being the parties entitled to the general costs of the action.

Upon a summons taken out by the defendants for a review of taxation, or that the judgment be reformed so that judgment be entered for the defendants for 30l. with full costs of action to be taxed, a judge in chambers refused to make any order. On appeal, a Divisional Court (Stephen and Charles, JJ.) affirmed the judge's decision.

The defendants appealed.

H. F. Boyd, for the defendants.
H. Kisch, for the respondent.

Cur. adv. vult.

Jan. 23. THE COURT (Lord Esher, M.R., Fry and Lopes, L.JJ.) affirmed the decision of the Divisional Court, and held that, under Order XXI., r. 17, the judge at the trial had a discretionary power to enter judgment for the defendants for the balance of the sum they recovered over the sum recovered by the plaintiff; that the entry of judgment did not affect the question of the right taxation of costs where the defendant recovered a larger sum on the counter-claim than the defendant recovered on his claim; that in such a case, where the counter-claim was in respect of matters which could not be pleaded as a set-off to the plaintiff's claim, the claim and counter-claim must be treated as Jan. 20. independent cross actions for the purposes of taxation, and therefore that the objections to the master's taxation failed. Solicitor for the appellants: H. F. Kite. Solicitors for the respondent: Harding & Co.

W. L. C.

This was an appeal by the trustee in the bankruptcy against the refusal of Cave, J. (20 Q. B. D. 146), to order security for costs to be given.

The appeal was withdrawn, the parties having entered into an arrangement as to security.

From Ch. Div.

W. L. C.

W. A.

Jan. 23.

From Q. B. Div. SHRAPNEL v. LAING AND OTHERS. Jan. 23. Practice-Costs-Taxation-General Costs of Action-Claim and Counter-claim-Entry of Judgment-Taxation where Plaintiff succeeds on Claim and Defendant on Counter-claim-Order XXI. r. 17.

BORTHWICK V. THE EVENING POST.
Trade Name-Newspaper-Injunction.
This was an appeal from a judgment of Kay, J. The plaintiff
was the proprietor of the Morning Post, and the defendants
were a limited company recently incorporated by registration.
They had published an evening paper under the name of "The
Evening Post, with which is incorporated The Daily Recorder."
The words "The Evening Post" were in the usual large Old

Appeal from a decision of the Queen's Bench Division re- English type which London daily papers use for their titles, fusing to order a review of taxation of costs.

Claim for damages for breach of the defendants' agreement with the plaintiff to light a hall by electricity. Counter-claim for the contract price alleged to be due from the plaintiff to the defendants for lighting the hall. At the trial before Pollock, B. and a jury, a verdict was taken by

and the other words were in a separate line, in smaller type. Protest had been made previously to the issue of the first number of the defendants' paper, on behalf of the plaintiff, against the use of the words " The Evening Post," with a threat of legal proceedings. Evidence was given on behalf of the plaintiff that some twenty persons, some shortly before, and

the others shortly after, the first appearance of the Evening
Post, applied at the office of the Morning Post for copies of
the new paper under the impression that it was published at
the same office as the Morning Post. There was no evidence
that the proprietor of the Morning Post had any intention of From Ch. Div.
publishing an evening edition of his paper under the name of
the Evening Post.

Under the circumstances, Kay, J., granted a perpetual in- Costs-Taxation-Refresher Fees to Counsel—Appeal from Chan junction, and the defendants appealed. cery Division-Rules of Supreme Court, 1883, Order LXV. r. 27 sub-rr. 30, 37, 38, 48.

This was an appeal by the plaintiff from a decision of on the 29th of September, 1886, and that if the purchase was North, J. (Weekly Notes, 1887, p. 232).

thereupon, under sect. 5 (sub-s. 3) of the Settled Land Act, was his witness causes, and he declined to add to the list of 1884, they waived notice of the sale.

The vendor insisting on his contract, the purchaser, on the 3rd of November, brought this action for the return of his deposit, the vendor counter-claiming for specific performance. Renshaw, Q.C., and Dauney, for the plaintiff. Millar, Q.C., and Chubb, for the defendant.

KAY, J., said the scheme of the Settled Land Act appeared to be clearly this-that a tenant for life, quâ tenant for life, had, except in certain instances pointed out by the Act, an absolute and unfettered right to sell. The consent of the trustees under the Act to a sale by the tenant for life was not wanted except in one case mentioned in sect. 15. Accordingly, in the present case, the fact of there being no trustees for the purposes of the Act in existence at the time of the sale, was a defect of conveyance rather than a defect in the vendor's title to sell, the title being a perfectly good one. Even if the defect had been one of title, the purchaser was not entitled to repudiate without first giving the vendor a reasonable time to remove the defect. The purchaser had been clearly wrong, for he had brought this action after he knew that what he called the defect of title had been actually removed, and after the vendor was in a position to give him a complete conveyance. The action must be dismissed, and judgment given for the defendant on the counter-claim, with costs.

Solicitors: Harries, Wilkinson & Raikes: Russell, Son & Scott.

Kay, J.

G. I. F. C.

Jan. 20.

those causes unnecessarily. The present case did not differ
from other cases under sect. 165, and his Lordship had no
right to incumber his cause-list with cases of this description
on such grounds as had been urged. It did not follow, how-
ever, that, when all the evidence had been taken by cross-
examination before an examiner, the Court would, on the
summons coming on to be heard, be entirely satisfied with that
evidence: no doubt the Court could require the attendance
before it of any witness it pleased, and the judge might himself
cross-examine that witness to any extent necessary to enable
him to do justice between the parties. It was said that the
chief clerk would be ready to take the cross-examination
himself, but his Lordship would prefer that the chief clerk did
not do so, as the business in chambers was already very heavy.
The chief clerk might take the cross-examination of witnesses
in cases in which he required evidence to enable him to make
his certificate; but that was not this case. In his Lordship's
opinion this case was one which should rather go before an
examiner of the Court.

Solicitors: Snell, Son & Greenip: Campbell, Reeves & Hooper.
G. I. F. C.

Practice-Transmission of Interest-Bankruptcy of Person served
with Notice of Judgment-Application to carry on Proceedings
-Rules of Supreme Court, 1883, Order XVI., r. 40; Order
XVII. r. 4.

In re FAURE ELECTRIC ACCUMULATOR COMPANY. Action by some of the beneficiaries against the trustees and Practice-Company --Winding-up — Summons by Liquidator-executors of the will, of whom A. was one, for administration Companies Act, 1862, s. 165— Witness Action, setting down as -Cross-examination by Chief Clerk-Examiner of the Court. In this case the liquidators of the company, which was in course of winding-up, had taken out a summons under sect. 165 of the Companies Act, 1862, to make the directors liable for misfeasance and breach of trust. Numerous affidavits had been filed for and against the summons. The liquidators applied to the chief clerk to have the summons entered in the list of witness actions and the cross-examination of the deponents taken in Court at the hearing, but the chief clerk made an order refusing the application. The liquidators now moved to discharge that order.

of the testator's estate, commenced in July, 1881. A few days before issue of the writ, A., who was also beneficially interested in part of the estate as tenant for life, presented a petition for liquidation of her affairs, under which J., very shortly after the issue of the writ, in which A. had been named as a defendant, was appointed trustee. J. was served with notice of the administration judgment and obtained leave to attend the proceedings. In 1887, J. became bankrupt and W. was appointed in his place as trustee in the liquidation of A.

Renshaw, Q.C., and Grosvenor Woods, for the liquidators, argued that it would be much more convenient to have the summons treated as a witness action. If the cross-examination took place before the chief clerk, or one of the examiners of the Court, a great deal of irrelevant matter would be gone into and much time thus unnecessarily occupied.

Millar, Q.C., and J. E. Woodroffe, for the directors.

KAY, J., refused to discharge the chief clerk's order. The Legislature had not directed these summonses to be heard as causes. They were heard as summonses on affidavit evidence, and any cross-examination upon the affidavits must take place before one of the examiners of the Court. To support an application for such a summons to be put into the list of witness causes, the parties must make out a special case. The only part of his business which his Lordship could not keep down

A petition of course under Order xvII. r. 4, for an order to carry on proceedings between the continuing parties and W. having been presented by the persons having the conduct of the action the registrar objected to make the order on the ground that the effect would be to place as formal defendant on the record a successor in interest to a person who had not himself been made a defendant. He suggested that W. could either attend without any order, or should be served with notice of the proceedings under Order xvI. r. 40.

G. Broke Freeman applied to the Court, and submitted that the proper course was to proceed by petition of course under Order XVII. r. 4, and not by the more costly form of procedure under Order xvI. r. 40.

CHITTY, J., having ascertained that it had not hitherto been the practice on transmission of the interest of a person not actually plaintiff or defendant, but only bound by service of notice of the judgment, to bring the successor before the Court by order on petition of course, held that the procedure under