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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.

In re FAURE ELECTRIC ACCUMULATOR COMPANY. Practice-Company --Winding-up — Summons by Liquidator— 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.

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.

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.

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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.

Action by some of the beneficiaries against the trustees and executors of the will, of whom A. was one, for administration 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.

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.

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 the practice on transmission of the interest of a person not application for such a summons to be put into the list of witness actually plaintiff or defendant, but only bound by service of causes, the parties must make out a special case.

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 only notice of the judgment, to bring the successor before the Court

part of his keep down by order on petition of course, held that the procedure under

Solicitors for plaintiffs: Tylee & Co.
Solicitors for defendants: Bolton, Robbins, Busk & Co.

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.

EASTON V. LONDON JOINT STOCK BANK.

H. C. J.

Jan. 25.

Under the circumstances, Kay, J., granted a perpetual in- Costs-Taxation-Refresher Fees to Counsel-Appeal from Chanjunction, and the defendants appealed.

Renshaw, Q.C., Levett, and B. Farrer, for the appellants.
Marten Q.C., and Begg, for the plaintiff.

COLERIDGE, L.C.J., said this was not a case in which the very name, or a colourable imitation of the name, of the plaintiff's publication had been assumed by the defendants, under which circumstances there was plenty of authority that the Court could interfere by injunction. But the complaint was that the assumption of the name Evening Post was intended by the defendants to indicate, and would be taken by the public to indicate, a connection between that paper and the Morning Post, so that the defendants might get an advantage from that supposed connection; and it was said that this was a misrepresentation on the part of the defendants which would produce an injury to the plaintiff. He did not say that, if it had been clearly made out that damage was likely to happen to the plaintiff through this conduct of the defendants this Court would not interfere, but it did not appear to him that there was any evidence that such injury had happened or was likely to happen to the plaintiff. Under these circumstances he did not think that there was enough in the case to warrant the interference of the Court, and the judgment of Mr. Justice Kay must be reversed and the action dismissed; but as he could not help suspecting that the defendants took the name of the Evening Post, because of the existence of the Morning Post, and thinking that the public might possibly infer that there was a connection between the papers, he was of opinion that the action ought to be dismissed without costs.

COTTON and BOWEN, L.JJ., gave judgment to the same effect.
Solicitors: J. A. Rose: Lewis & Lewis.

From Ch. Div.

PORTER V. PORTER.

M. W.

Jan. 25. Practice-Partition Actions-Partition Act, 1876 (39 & 40 Vict. c. 17), s. 6-Person of Unsound Mind-Next Friend.

cery Division-Rules of Supreme Court, 1883, Order LXV. r. 27, sub-rr. 30, 37, 38, 48.

This was an appeal by the plaintiffs from an order of North, J. (Weekly Notes, 1887, p. 185).

Grosvenor Woods, for the appeal.

W. D. Rawlins, for the defendants, having stated, in answer to a question from the Court, that he did not dispute the existence of a discretion in the taxing master to allow something to counsel in addition to the original fee on their briefs, was not called upon.

THE COURT (Cotton and Bowen, L.JJ.) dismissed the appeal, saying that Svendsen v. Wallace (16 Q. B. D. 27) and the order of North, J., in the present case had been misunderstood, for that neither of them decided that the taxing master might allow daily refreshers as fixed sums in the same way as in witness cases, but only that it was in his discretion to allow an addition to counsels' fees as originally marked. The appeal was therefore dismissed.

Solicitors: Clarke, Rawlins, & Co.; West, King, Adams, & Co.

High Court of Justice.

CHANCERY DIVISION.

H. C. J.

Kay, J.
HATTEN v. RUSSELL.
Jan. 18.
Tenant for Life-Sale-Settled Land Acts,1882, 1884-No Trustees
at Date of Contract or at Time fixed for Completion—Title-
Defect-Purchaser's Right to repudiate-Specific Performance.
A tenant for life under a will sold settled land under the
Settled Land Act, 1882, by auction, subject to conditions of
sale which stipulated that the purchase should be completed

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).

Cookson Crackanthorpe, Q.C., and Kawlins, for the motion.
Cozens-Hardy, Q.C., and Jason Smith, contrà.

THE COURT (Cotton and Bowen, L.JJ.) dismissed the appeal, saying that the Court allowed a person of sane mind to take proceedings as next friend of a person of unsound mind, to whom the taking them was beneficial; that the observations of James, L.J., in Halfhide v. Robinson (Law Rep. 9 Ch. 373), were to be construed with reference to the circumstances of that case and taken in a limited sense; and that proceedings for a partition were primâ facie beneficial to a part owner, and might be taken by a next friend for him. That the suit therefore ought not to be stopped in limine, the question whether a next friend could give an effectual consent to a sale not arising till the trial.

not completed on that day, the purchaser should pay interest.
till completion, but there was no stipulation that time should,
be of the essence of the contract. An objection was raised by
the purchaser, in his requisitions on title, that there were no
The vendor
trustees in existence for the purposes of the Act.
at first contended that the two trustees of the will were trustees
within the meaning of the Act, but afterwards, on the 6th of
October, took out a summons for the appointment of trustees
under the Act, and on the same day informed the purchaser
that he had done so. The purchaser, however, replied that as
a good title had not been shewn, and the day fixed for com-
pletion had passed, the purchase was at an end, and asked for
the return of his deposit.

By an order made on the summons on the 29th of October, trustees for the purposes of the Act were duly appointed, and

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.

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In re FAURE ELECTRIC ACCUMULATOR COMPANY. Practice-Company --Winding-up - Summons by Liquidator— 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.

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

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, however, that, when all the evidence had been taken by crossexamination 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.

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Action by some of the beneficiaries against the trustees and executors of the will, of whom A. was one, for administration 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.

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

Order xvI. r. 40, and not that under Order xvII. r. 4, was
applicable to the case, and accordingly directed W. to be served
with notice of the judgment in the action.
Solicitors: Clutton & Haines.

Chitty, J.

F. G. A. W.

BESLEY V. BESLEY. Jan. 21. Practice-Pleading—Adding Parties-Rules of Supreme Court, 1883, Order XVI. rr. 2, 11-Trustee and Cestui que Trust.

The case of trustee and cestui que trust is not excepted from the general rule of Order xvi. r. 11, so as to enable the Court or a Judge, upon the application of the cestui que trust to amend by adding the trustee as co-plaintiff in an action in respect of the trust property, to dispense with the consent in writing of the

trustee.

Maclean, Q.C., and Swinfen Eady, in support of the application by cestuis que trust to add as co-plaintiff the trustee who refused to give his consent.

8 per cent. was paid to the ordinary shareholders. The Man-
chester Ship Canal Company, under the provisions of their
Special Act, purchased the undertaking of the Bridgewater
Company for a sum of 1,710,000. The Act contained no pro-
vision as to the mode in which the purchase money was to be
divided among the shareholders of the Bridgewater Company.
The Bridgewater Company resolved on a voluntary liquida-
tion, and the purchase-money was paid to the liquidators. The
preference shareholders claimed, that the surplus of the fund
(after discharging all the debts and liabilities of the company,
and paying the costs of the liquidation, and repaying to the
shareholders the capital which they had paid up) should be
divided among all the shareholders (ordinary and preference)
in proportion to the amounts which had been paid up on their
shares respectively. The ordinary shareholders contended that
the preference shareholders were only entitled to be repaid the
capital which they had paid up, with interest at 5 per cent. and
that the remainder of the surplus ought to be divided among
the ordinary shareholders.

Napier Higgins, Q.C., and Phipson Beale, for the liquidators.
Cozens-Hardy, Q.C., and O. Leigh Clare, for the ordinary

Romer, Q.C., Oswald, Stallard, and Bremner, contrà.
Solicitors: Lowe & Co.; Saunders, Hawksford, Bennett & Co.; shareholders.
Anderson & Sons.

North, J.

F. G. A. W.

In re BRIDGEWATER NAVIGATION COMPANY.
Company-Purchase of Undertaking-Surplus after Payment of
Debts, &c.-Division between ordinary Shareholders and pre-
ference Shareholders.

Buckley, Q.C., and Swinfen Eady; and Upjohn; for the preference shareholders.

NORTH, J., held that the surplus in question was not "proJan. 16. fit" divisible under the articles of association. The parties had not entered into any contract as to the mode of division of the surplus, and it must be divided on equitable principles. In his Lordship's opinion the case was governed by Sheppard v. Scinde Railway Company (Weekly Notes, 1887, p. 132; 36 W. R. 1), and, in accordance with the principle of that decision, the surplus must be divided among all the shareholders, in proportion to the amount paid up on their shares respectively. Solicitors: Cunliffes & Davenport; Burgess & Cosens; Clarke, Woodcock & Ryland. W. L. C.

In re VICKERS.
VICKERS. VICKERS.

Ademption-Parent and Child-Advancement.

Jan. 18.

George William Vickers, by his will, dated April, 1867, after giving specific legacies to his wife and sums of 197. 19s. to two persons he appointed executors, gave the residue of his estate (which was entirely personal property) subject to a life interest in his wife for the benefit of all his children equally.

Summons by the voluntary liquidators of the company to determine how a sum (estimated at 900,000l.) was to be divided among two classes (ordinary and preference) of shareholders of the company. The articles of association enabled the company to create capital with a preferential right to dividend or priority in the distribution of assets; that no dividend should be paid, except out of the profits of the company arising from the business of the company, as shewn upon the balance sheet, North, J. which should from time to time have been examined and passed by the auditors; that, subject to the setting aside of a reserve fund, and subject to any arrangement which might from time to time have been entered into relative to the remuneration of any manager or other officer of the company by way of commission or percentage on the net profits of the company, or on any part thereof, the entire net profits of each year should belong to the holders of the shares of the company, and be divided pro ratâ upon the whole paid-up share capital of the company, and that the directors might, with the sanction of a general meeting, declare a dividend to be payable thereout on the shares, in proportion to the amounts paid up thereon. The company issued 30,000 shares of 107. each, entitling the holders thereof to a dividend at the rate of 5 per cent. per annum upon the amount for the time being called up thereon, and taking precedence of and priority over all dividends and claims of the holders of the ordinary shares of the company. These preference shares were all issued and paid-up in full. The ordinary shares of the company were 100,000 of 107. each, on each of which 37. 10s. had been paid up. The dividend of 5 per cent. was annually paid to the preference shareholders, and an average dividend of

The testator directed his executors to sell the lease of his business premises, good will, stock-in-trade, and trade assets of his business as bookseller, the proceeds of which were to fall into his residue.

On the 10th of June, 1886, a deed was executed between the testator of the one part and William Edward Vickers, the elder of his two sons, of the other part, by which the lease and other trade assets, including a sum of 5007. temporarily employed by the testator in his business, were transferred to William Edward Vickers upon trusts which provided for the younger son being taken into partnership on equal terms with his brother on attaining 21, for the payment of weekly sums to the elder and younger sons in the meanwhile, the payment of 101. a week to

the father so long as he lived, and the repayment to him of the | order. A mortgage in fee to secure 3501. was transferred to 500%. with interest, and the accumulation of the surplus property in the meantime for the benefit of the two sons.

The testator died on the 6th of July, 1886, having survived his wife, leaving two sons and three daughters. The sole surviving executor renounced. Letters of administration with the will annexed were granted to the testator's two eldest daughters.

This was an originating summons, to which the two eldest daughters were plaintiffs, and the other three children of the testator were defendants, to have it determined whether the shares of the testator's sons in the residue were adeemed to any and what extent by the assignment on trust of the business assets to the eldest son.

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Administration-Personal Estate-Intestacy-Descendants—Next of Kin-Grandchildren—Per Stirpes or per Capita-Statute of Distributions (22 & 23 Car. 2, c. 10), ss. 3, 5, 6, 7.

A share of the residuary estate of a testatrix, which she had given by her will, lapsed. Her only descendants living at her death were four grandchildren. She had only two children, a son and a daughter, both of whom died before her. Three children of the son, and one child of the daughter, survived the testatrix. The question was, whether, under the Statute of Distributions, the four grandchildren took the lapsed share, so far as it arose from personal estate, per stirpes or per capita. Marcy, for the executors of the testatrix.

E. H. Davis, in consideration of 3851. expressed to be paid by him to the transferee. Two of the petitioners alleged that the 3851. was really their money, and that the name of Davis was used as a trustee for them. Davis had not executed any declaration of trust. He had since been adjudged a bankrupt, and had gone out of the jurisdiction, and he could not be found. The mortgagor joined in the petition. The trustee in the bankruptcy admitted that the 3857. was the money of the first two petitioners, not of the bankrupt, and did not claim it on behalf of the bankrupt's estate. The petition asked for an order vesting the mortgaged property in the first two petitioners, subject to the equity of redemption.

Dunning, for the petitioners, said that it had been held in In re Osborn's Mortgage Trusts (Law Rep. 12 Eq. 392) that a mortgagee was not a trustee for the mortgagor within the meaning of sect. 10, which is similar to sect. 9; but that did not apply to the present case.

G. Lawrence, for the trustee in the bankruptcy.

NORTH, J., said that In re Osborn's Mortgage Trusts did not apply. As between the bankrupt and the petitioners he was strictly a trustee for them. The mortgagor was not claiming to make the bankrupt a trustee for him. The order asked for would be made.

Solicitors: Meredith & Co.

W. L. C.

North, J. In re HURLBUTT AND CHAYTOR'S CONTRACT. Jan. 21. Vendor and Purchaser-Misstatement of Value-Compensation. Summons under the Vendor and Purchaser Act, 1874, by a vendor, to determine whether the purchaser was entitled to compensation in respect of an alleged misstatement in the particulars of sale as to the value of the property. The property

was described as " in hand and of the estimated annual value of 4007." There was a condition entitling the purchaser to com

R. F. Norton, for the three children of the son of the tes- pensation in case any error or misstatement should appear to

tatrix.

F. L. Wright, for the child of the daughter. Bunting, for the heir-at-law of the testatrix. NORTH, J., held that the grandchildren took per stirpes. He thought that "next of kindred" in sect. 7 of the statute did not include issue of children of an intestate, but that children, and all their descendants, were included under the terms "children" or "child." He was of opinion that the point had really been decided by Wickens, V.C. in In re Ross's Trusts (Law Rep. 13 Eq. 286), and his decision was in accordance with the opinion expressed by Lord Hardwicke in Lockyer v. Vade (Barnardiston, Chan. Rep. 444).

[NOTE.-This decision is contrary to the view expressed in Williams on Executors (8th ed.) vol. ii. p. 1503, and in some other text-books.]

Solicitors for all parties: Walker & Battiscombe.

have been made in the particulars. The purchaser alleged, and adduced evidence to shew, that the property was not worth more than 2001. a year. He did not, however, allege that the vendor's estimate was a dishonest one.

Whinney, for the vendor.

Stallard, for the purchaser.

NORTH, J., said that the statement was that the property was of the "estimated" annual value of 400l. It was clear that it was of that "estimated" value. It was admitted that the estimate was not a dishonest one. The condition did not apply. If the estimate had been dishonest, the purchaser might have been able to get rid of his contract. He was not entitled to any compensation.

Solicitors: Lyne & Holman ; F. Robinson.

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W. L. C.

Jan. 17.

KERFERD V. SEACOMBE, HOYLAKE, &C. RAILWAY COMPANY. Railway Company-Notice to treat-Part of a House-Stables, &c. across a Road-Lands Clauses Act, 1845, s. 92. In the year 1853 the plaintiff purchased a piece of land bounded on the south by a private road and erected two semi

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