236

MERCANTILE LAW.

NOTES OF NEW DECISIONS. LIVERPOOL STOCK EXCHANGE-COURSE OF BUSINESS-ACTION FOR COMMISSION-TRANSFER NOTE-DIFFERENCE BETWEEN SUM RECEIVED AND SUM TRANSFERRED-INTERPRETATION OF TRANSFER DEED.-The defendant having instructed the plaintiff to purchase certain railway shares on the Liverpool Stock Exchange, received a transfer note on the settling day for the purpose of transferring his shares to the purchaser. It is the custom on the Liverpool Stock Exchange for the original seller to transfer his shares not to the immediate purchaser, but to some sub-purchaser who may have purchased from some person other than the original purchaser; and it frequently happens that the sum in the transfer note is different to the sum which the original seller is to receive. To avoid difficulty, at the foot of the transfer note it is stated that the consideration money differs from that which the first seller is to receive owing to the sub-sale by the original buyer, but that the note is so regulated to fulfil the provisions of the Stamp Act (55 Geo. 3, c. 184). The defendant refused accordingly to sign the transfer because it stated that he had received a sum which was untrue. Held, that the defendant was bound to sign the transfer deed; that the foot note was to be read as part of the tranfer, and was sufficiently explicit. Semble, that a custom to sign for a consideration different from that stated in the deed of transfer would be bad: (Case v. McClellan, 25 L. T. Rep. N. S. 753. C. P.)

STATUTE OF FRAUDS (29 CAR. 2, c. 3), s. 4PROMISE TO ANSWER FOR DEBT OR DEFAULT OF ANOTHER LIABILITY OF THIRD PERSON

ASSUMED BUT NOT ACTUALLY EXISTING.-Plain-
tiff was employed by a local board of health to
construct a main sewer, and shortly before its
completion the board gave notice (pursuant to 11
& 12 Vict. c. 63, s. 69) to the occupiers of the ad-
joining houses to connect their drainage with the
main sewer within twenty-one days, or the board
After the main
would do so at their expense.
sewer was completed, and before the expiration
of the twenty-one days, plaintiff was leaving with
his carts and men, when he was asked by defen-
dant, chairman of the board, what objection be
Plaintiff said,
had to making the connections.
"I have none, if you or the board will order the
work, or become responsible for the payment,'
to which defendant replied, "Go on and do the
work, and I will see you paid;" whereupon plain-
tiff did the work under the superintendence of
the surveyor of the board, and sent his account
for the work to the board, who refused payment
on the ground that they had not ordered it.
Plaintiff having subsequently brought an action
against the defendant for the amount: Held, that
there was evidence on which a jury might find
the existence of a primary liability on the part
of the defendant, and not merely a liability to
answer for the actual or supposed debt or default
of another person, and therefore that his pro-
mise did not come within the 4th section of the
Per Willes, J.-Where the
Statute of Frauds.
promise is made to answer for the debt or de-
fault of a third person, and there is no actual,
but only a supposed, liability on the part of that
third person, the promise is equally void, whether
it be in writing or not. But where the promise is
made in respect of a future contemplated liability
on the part of a third person, such a promise is
within the 4th section of the Statute of Frauds:
Mountstephen v. Lakeman, 25 L. T. Rep. N. S. 755.
Ex. Ch.)

BANKRUPTCY LAW.

NOTES OF NEW DECISIONS.
BANKRUPTCY ACT 1869, s. 37-JOINT AND
SEVERAL PROMISSORY NOTE-DISTINCT CON-
TRACTS-JOINT AND SEPARATE ESTATE-RIGHT
OF PROOF-DOUBLE PROOF.-The repayment of
a loan was secured by a joint and several pro-
missory note, signed by a firm, and by individual
members of the firm. Held (affirming the decision
of Mr. Registrar Pepys, sitting as Chief Judge
in Bankruptcy), that under the 37th section of the
Bankruptcy Act 1869, the lender was entitled to
prove against and receive dividends from, both
the joint estate of the firm and the separate
estates of the individual members of it: (E
parte Honey; Re Jeffery, 25 L. T. Rep. N. S. 728
Chan.)

BANKRUPTCY MONEY ACQUIRED DURING BANKRUPTCY-PAYMENT OUT OF SUCH MONEY BY BANKRUPT BEFORE ORDER OF DISCHARGERIGHT OF TRUSTEE TO RECOVER-BANKRUPTCY ACT 1869, ss. 15, 17.-S. became tenant from year to year of a house which a bankrupt had hitherto occupied on a similar tenancy, and bough he bankrupt's furniture. He then let the house furnished to the bankrupt at a rent of 51. per week, it being agreed that the bankrupt should pay six if required to do so. The months' rent in adv

bankrupt, who had not obtained an order of dis-
charge, received a sum of 2001. as compensation
for the loss of a situation, and thereout paid S.
six months' rent of the house in advance: Held
(affirming the order of the Chief Judge in Bank-
ruptcy discharging an order of the County Court
sum thus received to the trustee of the bank.
judge that S. could not be ordered to refund the
rupt's estate: (Ex parte Dewhirst; Re Vaulohe, 25
BANKRUPTCY ACT 1869, s. 6, SUB-SECT. 3-ACT
-OTHERWISE ABSENTING
L. T. Rep. N. S. 731. Chan.)
OF BANKRUPTCY
MENT TO BRING MONEY TO CREDITOR-INTENT
HIMSELF "-FAILURE TO KEEP AN APPOINT-
TO DELAY-ONUS OF PROOF.-On the 6th Nov. a
trader promised his creditor that he would bring
him the money for a dishonoured bill before three
o'clock that day; he broke that promise and also
two similar promises for the two following days.
On the 9th Nov, judgment was signed by default
in an action at the suit of the trader's father-in
some days before he made the appointments
law, with a writ in which he had been served
with his creditor, and his furniture and stock-in-
trade were seized in execution. The trader ad-
duced evidence that he had tried to borrow money
to meet the bill on the 6th Nov., and stated that
he failed to keep his appointment with his credi-
tor only because he had not obtained the money:
Held, that under the circumstances the failure to
constitute an act of bankruptcy under the 3rd
keep the appointment with his creditor did not
sub-sect. of the 6th section of the Bankruptcy
such an appointment at the house of a creditor is
Act 1869. But, semble, that the failure to keep
prima facie evidence of intent to defeat or delay
one's creditors, and that the onus lies upon the
the absence of which proof the failure to keep
debtor of proving that he had no such intent, in
such an appointment would constitute an act of
L. T. Rep. N.S. 733. Chan.)
bankruptcy: (Ex parte Meyer; Re Stephany, 25

BRIGHTON COUNTY COURT.
(Before W. FURNER, Esq., Judge.)
Friday, Jan. 13.

Re HENRY ROSENBERG.
Liquidation-Rights of sureties.
THIS was an application by the trustee for the
direction of the court under sect. 20 of the Bank-
ruptcy Act 1869, under the following circum-
stances:-It appears that the debtor, who was a
schoolmaster at Bognor, had borrowed on the 10th
Sept. 1869, from the North British and Mercantile
Insurance Company 4001., and had insured his life
in the same office for 8001., the policy being
mortgaged to the company to secure the loan.
Mr. Wilson and Mr. White joined in the mortgage
as sureties for the purposes of guaranteeing the
principal, interest, and premiums, and it was
stipulated that the principal should be paid on
the 10th March 1870, but if an instalment of
principal amounting to 50l. should be paid on
the 10th March and 10th Sept. the loan should
continue for three years. The loan was not paid
on the 10th March 1870, but the sureties had, on
the application of the company, paid two sums
amounting to 351. 8s. 7d., and 61l. 16s., repre-
senting the premiums due on the 10th Sept. 1870,
and a fine for renewal, also one of the instalments
of 501., and arrears of interest. The petition for
liquidation was filed on the 9th June 1871, and
the creditors having resolved on liquidation, the
trustee was appointed on the 24th June 1871.
The trustee paid the premium on the policy due
the 10th Sept. 1871. The debtor died on the 3rd
Nov. 1871, and the trustee having given to the
insurance company satisfactory proof of death,
applied for payment of the amount due under the
policy less the amount due to the company
thereon. The sureties then gave notice to the
company, requesting the company to deduct the
sums of 351. 8s. 7d., and 614. 16. from the balance
of the 8001. policy, and to pay the same to the
sureties. By an order of the court in pursuance of
the 80th section, the proceedings under the liquida-
J. Seymour Salaman (of London) appeared on
tion had been continued as if the debtor was alive.
behalf of the trustee, and after stating the above
facts, which were embodied in an affidavit of the
trustee, and were admitted by the company and
the sureties, referred to 19 & 20 Vict. c. 97, s. 5:
(Mayhew v. Crickett, 2 Swans. 185; Wade v. Coope,
2 Sim. 155; Heyman v. Dubois, 25 L. T. Rep.
N. S. 559.)

Holtham, solicitor (of Brighton), appeared for
the North British and Mercantile Insurance
Company.

Baker, solicitor (of London) appeared for the sureties.

His HONOUR said it appeared to him only reasonable, when the sureties covenanted to pay off the mortgage with interest, and had been compelled to pay certain sums, that they should be recouped out of the insurance money. When the debtor had had the benefit of that security, it would be monstrous that the trustee, in the place

of the debtor, should pocket the money resulting
from that security, and leave the sureties to go to
the wall. He should, therefore, make an order
for them to be recouped the money actually paid
out of pocket.

preference.
Bill given by debtor and discounted—Fraudulen E

A motion was then made on behalf of the
Worthing, should pay over to the trustee the sum
trustee for an order that Mr. Francis Mason of
of 1351. 19s. being the proceeds of the discount of
a bill of exchange delivered to Mr. Mason by the
circumstances.
debtor on the 7th June 1871, under the following

It appeared that the debtor had received from
the father of one of his pupils a bank draft on the
Chartered Mercantile Bank of India, London, and
China, for 168. at three months' date, in payment
of an account for tuition. The debtor had handed
this draft to Mason, who was employed as one of
on the 14th June discounted it and passed the
the masters on the 7th June 1871. The bill was
amount less discount to Mason's account.
taken by Mason to his bankers, who, afterwards
had handed to the debtor 301. of the amount.
The debtor at the time he handed the bill to
a bill of sale over the whole of his furniture and
Mason was deeply in debt owing some 20007., in-
cluding a large amount to Mason himself-he had
effects, and the creditor was in possession as was
also one or more sheriff's officers.

Mason

The debtor filed his petition under the 125th a trustee appointed. The debtor had made an and 126th sections on the 9th June 1871, and on the 24th June liquidation was resolved upon and affidavit in which he had stated that he had handed the bill to Mason for the purpose of getting it arranged to do so that the debtor might draw upon cashed at his own bankers, and that Mason had it from time to time, as he wanted the money for home purposes, and that the balance should

remain at Mason's bankers, and the debtor was to draw the same as he wanted it to carry on his school. Mason had been examined before the registrar, and had denied the statement of the debtor, stating that the bill had been handed to him by the debtor in part payment of his debt and in fulfilment of a previous promise made to him by the debtor that he would hand him this bill when it arrived from India.

Mason had proved under the liquidation for over 7007.

The case had been before the court on two previous occasions, and it had been adjourned for the attendance of the debtor, who was unable to attend on account of serious illness, and he died in November.

Salaman now moved on the above facts, and urged that the trustee was entitled to the money, whether the court believed the statement of the debtor or of Mason, if the former, then Mason was only the agent of the debtor, and could not hold the proceeds of the bill as against the trustee ; a case of fraudulent preference under the 92nd if the latter then the circumstances amounted to section, as the payment was voluntary and without pressure, and must have been made with a view of giving the creditor a preference over the other creditors.

Gutteridge (of Brighton), appeared for Mason. His HONOUR said he had no hesitation in coming to a conclusion, because Mason was perfectly acquainted with Rosenberg's position, and knew that he was contemplating bankruptcy. There was no doubt that the bill was placed in Mason's hands, as the agent of Rosenberg, to be applied to Rosenberg's use. He received 301. of it at the time, and the discount, 21. 1s., reduced the amount to 135l. 19s., which must be paid over to the trustees.

CHELMSFORD COUNTY COURT. Tuesday, Jan. 9. (Before J. T. ABDY, Esq., Judge.) Re REMINGTON. composition Summary jurisdiction of courtNotice to debtor-Ex parte applications. Bankruptcy-Contempt of court-Failure to pay an application for the committal of Mr. J. RemAr the last court, Woodard, of Billericay, made ington, late a butcher of Springfield, for contempt of court in not obeying an order to pay to Mr. whom Mr. Hilliard was one, and who had obtained G. B. Hilliard a claim due upon a composition an order of the court for payment. The order was arranged between the debtor and his creditors, of mising to pay into court within a week the sum granted, but was suspended, on the debtor proWoodard's costs, and in the event of Mr. Duffield of 50%. to cover Mr. Hilliard's claim and Mr. if he chose, as to whether the court could entertain failing in an appeal which he had power to make, Mr. Woodard's application, made on behalf of a on behalf of Mr. F. Marriage, farmer, of Springsingle creditor. That sum had been duly paid, and now Woodard made a similar application field, a further application in regard to Mr. Hil

liard's claim, and also an application on behalf of me. With regard to your proceedings here toM. J. M. Wood, farmer, of Terling.

238

hop in Liverpool. They used for the purposes of
heir business of flour dealers the shop and a room
behind, letting off to a resident tenant the re-
mainder of the premises. The premises thus let
had no front entrance save by means of the shop
and the room behind, the right of passage through
which when the shop was open formed part of the
demise to the tenant. There was an independent
entrance at the back, of which the tenant had the
The defendants were in the habit,
exclusive use.
one or other of them, of visiting the shop for
business purposes daily, and they had, of course,
a shopman on the premises throughout each day.
This shopman was taken ill in the early part of
April last, and on the 14th was obliged to absent
He was
himself from business in consequence, and his
illness turned out to be smallpox.
succeeded in his duties by another shopman,
who was in like manner obliged to leave from
illness in four days after the first man had left.
This illness proved also to be smallpox. The
Public Health Act (29 & 30 Vict. c. 90, s. 39)
imposes a penalty upon every person knowingly
letting a house, room, or part of a house in which
any person suffering from a dangerous infectious
disorder has been, without having the premises
disinfected to the satisfaction of a qualified medical
practitioner and certified by him. In this instance
the premises were not disinfected, nor any pre-
cautions taken to prevent the infection extending.
The tenant of the house at the time the small-
pox broke out was a person of the name of
Bradley, and being anxious to get away from the
place in consequence of the illness of the shopmen
and its cause, he opened a negotiation with the
plaintiff to succeed him in his tenancy; but
he carefully concealed the fact that there had
been smallpox there. Bradley was not autho-
an arrangement with the
rised to conclude
plaintiff, and he therefore referred him to Mr.
Horn the defendants' agent. At the time com-
munication was open between the plaintiff and
Mr. Horn, both Mr. Horn and the defendants
knew that the two shopmen had been necessarily
removed from the premises in consequence of their
having been seized with smallpox: but no intima-
tion of the fact was given to the plaintiff, and the
premises were let to him by Mr. Horn, by the
direction and with the knowledge of the defendants,
and he was allowed to enter into the occupation
in entire ignorance that he was taking his family
into the midst of infection. The consequence was
that, a few days after he took possession he was
attacked by smallpox, and was unable to work for
nearly six weeks. The case for the plaintiff was,
that the defendants having knowingly let the
premises to him after there had been smallpox
without previouly disinfecting the same, and the
plaintiff having contracted the disease in con-
sequence, a right of action existed for the in-
jury he had sustained. The defendants, however,
contended in the first place that the case was
not proved; and further, that if it was, there
was no liability on their part, either by com-
mon law or statute to compensate the plaintiff.

His HONOUR in giving judgment said:- It
is scarcely possible to exaggerate the import-
ance of this case; for if the contention before me
be well founded, the position of a tenant in great
towns like Liverpool and in crowded districts is
one of vast peril and difficulty. But I do not concur
in the view which the defendants, through their
attorney, suggest as to the law of the matter.
am satisfied that a right of action does exist, and
it is most righteous that it should. It is needless
to travel beyond the statute into the question of
common law liability, though upon that point I
should be prepared to state my opinion if it were
necessary, because I think that the imposition by
statute of a penalty for the doing of a particular
act amounts to a statutable prohibition of that
act, and makes it illegal. And if by reason of such
illegal act injury arises to an individual, I think
that the party injured has his personal remedy
by action for the private wrong, and that without
reference to the statutable penalty which is in-
tended to meet the public offence, I need only
refer, in corroboration of this view, to the well-
known case of Couch v. Steel (3 Ell. & Bl. 403),
and to the more recent case of Atkinson v. New-
castle and Gateshead Waterworks Company (6
L. Rep. Ex. 404). The legal objections failing,
there remains only the question whether the
plaintiff has proved his case, and the con-
clusion at which I have arrived is that he has.
He is therefore entitled to my verdict for the full
amount which he claims, with costs.

LORD MAYOR'S COURT.
Monday, Jan. 22.
(Before Deputy-Recorder CHAMBERS and a Jury.)
DRISCOLL V. BALDWIN.
Ferocious dog-Action for a bite-Plaintiff the
servant of the defendant-Scienter.
IN this case the declaration alleged that the
defendants unlawfully kept a dog of a fierce
and mischievous nature, well knowing that the
dog was of a fierce and mischievous nature, and

THE LAW TIMES.

the same, attacked and bit the plaintiff; with
that the said dog, whilst the defendant so kept
allegations of damage.

It appeared that the dog in question was a bull.
terrier, admittedly kept for fighting purposes, i.e.,
fighting other dogs. It was kept on the premises
of the defendant with other dogs, and the plaintiff
a day in Aug. 1871, according to the plaintiff's
was the groom who attended to the horses. On
evidence, he was instructed by the defendant to
take the dog down to the water. This he did con-
trolling it by a chain and collar. Arriving at the
water the plaintiff loosed the dog which flew at
him and bit him in the arm.

J. Cook was counsel for the plaintiff, and
F. O. Crump for the defendant.

The plaintiffs proved merely that the defendant
knew the dog to be a bull-terrier, that he kept it
for fighting purposes, and had it always chained
up.

At the close of the plaintiff's case the counsel
for the defendant submitted that there was no
case. In the first place it had not been proved
that the defendant knew that the dog would bite
mankind;' and the fact that it was kept to fight
own species was not enough to make the defen-
other dogs and therefore ferocious towards its
Secondly, the plaintiff knew the
dant liable.
danger of the service, he knew that the dog was
savage, and with that knowledge undertook to
water him. He was bound to use more than ordi-
nary care, and the master was certainly not
liable.

The learned DEPUTY-RECORDER directed the jury that if they considered that the defendant knew the dog to be ferocious, and instructed the plaintiff to water it, he was liable for the act of the dog if the plaintiff had done nothing to irritate not agree with the learned counsel for the defenit, and bring the damage upon himself. He did dant, that the facts that the breed of the dog and purpose for which it was kept were notorious, affected the question, as attending to dangerous dogs was no part of the regular employment of the plaintiff as groom to a merchant, as in this

case.

to cover all the plaintiff's charges.
the fifteen guineas for the inventory was intended

On the 22nd inst. Crump moved for a new trial,
on the ground that the verdict was against the
evidence, and contended, as matter of law, first,
that the defendant was bound by the terms of the
receipt, which expressed for what the fifteen
ment it could be no answer to the action; and,
continued employment of the plaintiff subse-
guineas were paid, and there being no plea of pay-
secondly, that even if it had been payment the
incurred expense, to some remuneration.
quently, and revocation of his authority before he
had obtained a purchaser, entitled him, having

The COURT granted a rule nisi.
Attorneys for plaintiff, Brook and Chapman.
Attorneys for the defendant, Ravenscroft and
Hills.

COMPLIMENTARY FAREWELL DINNER TO
FRANCIS ELLIS M'TAGGART, ESQ.
A COMPLIMENTARY farewell dinner to Francis
Ellis M'Taggart, Esq., who for eleven years has
been the judge of the County Court of Northamp-
was occupied by Mr. J. Hensman, who was sup-
tonshire and district, was given by the solicitors
18, at the George Hotel, Northampton. The chair
practising on his circuit on Thursday evening, Jan.
After some preliminary toasts,
ported on the right by Francis Ellis M'Taggart,
Esq., and on the left by R. Harrington, Esq,; the
vice-chair was occupied by Mr. J. Jeffery.

The Chairman said it devolved upon him, as the of his Honour, Mr. McTaggart. (Loud applause.) The learned Deputy Recorder refused to stop oldest practitioner, to propose to them the health Evidence was then called for the defence, and it They were called together that day to celebrate the case. he refer, in the presence of his learned brethren, was denied that instructions had been given to in the person of the judge one of the greatest on defendant's premises also swore that they fre- other country, which had ever been known. Need to the state of the law thirty years ago; or state, the plaintiff to water the dog. Several workmen improvements in the laws of England, or of any quently caressed the dog, and it had never of the law had been the lawyers. (Hear, hear.) attempted to bite them. A veterinary surgeon who had examined it after the accident stated that but for the benefit of the visitors who were preit was in a healthy condition, and no more fero- sent on that occasion, that the great reformers Crump addressed the jury, and submitted that The Chairman then touched upon the great imcious than bull-terriers usually are. if they took the view that the plaintiff was autho-provements which had been effected since the rised to water the dog he was acting in a service great Chancellor of James the First set his stamp legal profession. But when they came to the for which he was paid, and the dangers of which and seal upon the law of England, and alluded to forms of procedure on the administration of jushe knew. If, on the other hand, he was a volun- the changes which had been effected by the bankteer, acting beyond the scope of his employment, ruptcy law since he commenced his career in the Cook replied. the defendant was clearly not liable. tice, they recognised in his Honour a man who connected with the procedure of the courts the had greatly helped to carry out a wonderful alteration in the laws of England, for of all the matter Act for establishing County Courts had been the he was able to say his Honour had travelled in his best. With respect to the Northampton Court, amount of the plaints in the Northampton County circuit about 10,000 miles a year, and he (the chairman) complained of him as being a conspirator and judgments had been given for 28,000. Of against the laws of his country. (Laughter.) The Court, during the last ten years had been 72,0007, had only been one appeal from his judgment, and the 23,000 cases which had come before him there that an unsuccessful one; and of those cases twelve only had been tried by jury. He charged his Honour with conspiracy, for he had actually (Loud ap it by force of justice and reason. practically abolished trial by jury, and abolished and who could bring home (loud applause) plause.) Need he say more of a man who could speedy justice to the house of every Englishman? abolish one of the grand bulwarks of freedomHe knew of nothing which Lord Bacon had said upon judical trial which would not apply to his Honour, Mr. McTaggart. Lord Bacon said a judge should be grave and patient. Had not his Honour been patient? (Hear, hear.) He had he (the chairman) was sure been most patient, most kind, most considerate. (Applause) ConsideraHis Honour had been most considerate in his tion was the great quality which made the judge. If one of them wanted a kind and treatment to the junior members of the pronot the least that was due to him. In the prefession. helping hand, that helping hand Mr. McTaggart had always offered-(hear, hear)—and that was sence, however, of his Honour he would abstain did not cover his Honour's breast, beneath his from further epithets of praise and laudation, would say, that although the ermine of the judge because merit was always modest; but this he with the greatest principles-justice and truth. official robes there beat a heart warm and strong (Loud and prolonged applause.)

The jury considered, and returned a verdict for the plaintiff; damages 401.

Crump applied for leave to move the court above to enter the verdict for the defendant on two scienter; and secondly, that as the plaintiff was grounds, first, that there was insufficient proof of the defendant's servant, he could not under the

circumstances recover.

After some argument, the learned Judge refused

leave.

Counsel intimated that he should appeal.
Attorney for the defendant, Wragg.

Jan. 20 and 22.

GILBERT v. HINCHLIFF.
tain on sale of house-Revocation of authority-
Auctioneer's commission-Agreement for sum cer-
Quantum meruit.

THE plaintiff in this case, an auctioneer and house
agent, sued the defendant for commission on half-
year's rental and premium on sale, which was not
completed, of a house at Maida-hill. The original
agreement was that for selling the house and fur-
niture for a given sum the plaintiff should receive
100. He advertised extensively, and an offer to
come to being that the purchaser should become
purchase was made, the agreement eventually
the tenant of the house for six months, paying a
secure the due performance of the contract. The
quarter's rent in advance, and depositing 100l. to
purchase was not completed, and the 100l. was
forfeited. Some months subsequently the defen-
dant took the matter out of plaintiff's hands, an
sold it by other means for a less sum than the
ceived fifteen guineas for an inventory, for which
limit given to the plaintiff. The plaintiff had re-
he had given a receipt. He now sought to recover
commission at 5 per cent. as above stated.
F. O. Crump was counsel for the plaintiff.
Lumley Smith appeared for the defendant.
After hearing the evidence of the defendant the
jury stopped the case, expressing the opinion that

-

Mr. Ellis M Taggart, who was received with renewed applause, said, in thanking them most had prompted them to ask him to be their guest heartily and gratefully for the kindly spirit which welcome which they had given him, he was but that evening, and for the cordial and generous repeating at the best those thanks which some few weeks ago a similar proof of kindness called forth; thanks for the sympathy and good will which for nearly eleven years he had never failed to meet with from all connected with that circuit, and of

which that meeting was but another instance: spoke correctly, the tendency of the expansion of
and if he found it difficult to thank them then as the County Courts was to increase their labours,
he wished to thank them, he felt it far more diffi-and to invest many of them with functions even
cult to do so now. Of this, however, at least, he more important than those which they at present
was glad, that many of those to whom he then ex-
exercised;
and looking at the subject as an ele-
pressed his gratitude in their absence were present ment in one mode of carrying out that which the
that night, and that what he might say on that country is determined shall be carried out a
occasion, however imperfectly he might say it, more perfect localisation of justice-then he
was said to them in person. Certainly no man was of opinion the delegation to the registrar,
who had held the office had not more reason than subject to appeal, of some portion of the business
he had to be grateful, either for the loyal and able will not only be advisable, but necessary, in order
assistance of those upon whom the conduct of the to relieve the judge of a large amount of weari-
business fell, or the good fortune of the relations some business, and give him time for the delibe-
which, purely official, had created a strong feeling rate disposal of the ordinary work. He was con-
of mutual friendship and regard. (Applause.) To vinced that the registrars had already exercised
feel at the close of his connection with the circuit their judicial functions in equity and bankruptcy
that whatever his shortcomings may have been, in a manner which must have given perfect satis-
he at least left it with that friendship and faction to the public. He trusted, however, that
regard unmarred to the last, and to see so many any future legislation with respect to the County
of those friends assembled from all parts of the Court would not be begun without a far more
circuit to assure him that it was so, was a pleasure thorough knowledge of the present system on the
cheaply purchased by any amount of labour and part of those who had to legislate than appeared
anxiety in the office which he had held. That it to exist in those who were at that moment charged
was not without its labour and its anxiety those with enquiring into the expediency of that legis-
who to no small extent, had assisted in lightening lation. It was not, of course, surprising that the
both for him, knew as well as he did; but he details of any jurisdiction should be imperfectly
could safely say that the eleven years he had sat known by those whose legal duties confined them
on that circuit had been eleven of the happiest to their tribunals, but he thought it would be
years of his life. (Applause.) He had no doubt better if changes were not rashly and glibly pro-
been exceptionally fortunate in the circuit over posed by persons who had not the slightest prac
which he had presided, and in those with whom it tical acquaintance with the judicature, but whose
had brought him into association; but indepen- action was based principally upon that reckless
dent of that, the duties of the office, laborious and love of efficiency, but of the reduction of the ex-
responsible as they were, were themselves duties pense at any price. A change in the character
which had always given him pleasure to discharge, of the court should not be taken into considera-
not because of his conspiracy, as suggested by the tion at all without a far more perfect and thorough
chairman, against the palladium of the British knowledge of the working of the present system,
jury (laughter); but because he felt, in discharging when that system was working well upon the
his duties as judge, that he had helped, so far as he whole, as shown by the successive additions to its
could, honestly and earnestly, to carry out what, jurisdiction and by the steady increase of its busi-
in his opinion, was one of the greatest reforms of ness. He was far from denying the system was
legal judicature. (Applause.) He had heard it incapable of improvement and expansion, but
not unfrequently said that the business of the improvement and expansion of a system which had
County Court must necessarily be monotonous risen year by year in the confidence of the people
and wearisome; that its details were trivial as must not be introduced without full deliberation
matters of fact, and uninteresting as matters of and anxious enquiry. Having said so much upon a
law.
subject in which they in common with himself
always felt the deepest interest, he returned to
the subject upon which he rose to address them,
being anxious to again express how deeply he felt
their welcome. Nothing in the whole course of
his past career of office had given him or could
give him such pleasure, or soften so much the
regret at parting from a circuit over which he had
so long presided, as the words uttered by their
spokesman. Not that he deserved one tithe of
what the chairman had said, but because it would
always be a proof to him and to those to whom
such testimony was as dear as to himself, of the
regard and goodwill of those among whom his
duties had led him-a testimony which every man
who had his duties at heart must always prize as
the highest of all testimonies. He assured them
that he should to the last moment of his life look
back gratefully to that meeting, and if having to
say farewell, as one must, was the cause of sorrow,
he felt he had to thank them for having deprived
that parting of no small portion of its pain. (Loud
and prolonged applause.)

In his opinion, and he though their opinion
would correspond with his, that was completely a
misapprehension, arising partly from ignorance of
the extent of the jurisdiction of the court, and
partly from ignorance of the nature of the labour
which that jurisdiction involved. (Hear, hear.)
There was undoubtedly a startling difference
between the County Court of 1847, when it was
merely a small debts court, and the County
Court of 1872, when it had become a jurisdic.
tion clothed with wider powers, and provided with
more stringent machinery for enforcing them than
any other court in the kingdom. Under such cir-
cumstances, it would be strange indeed if the
work were monotonous for the judge or the Bar.
Nor, in his opinion, did the pecuniary limit render
the causes tried in it one wit the less interesting.
They knew that a claim for a few shillings might,
and often did, raise questions of fact and law as
perplexing and important as those arising in a
claim for as many hundreds of pounds. They had,
no doubt their dull causes as other courts, but he,
for one, failed to see the interest of the judge or the
Bar in danger in the endeavour to eliminate the Mr. McTaggart again rose and said they were
truth from a mass of conflicting evidence, or apply honoured that night by the presence of the learned
to the facts the necessary law. It could never be judge whom the Lord Chancellor had appointed to
so if that evidence was treated and the principles succeed him on that circuit.
The fact of his pre-
applied, as they ought to be, according to the sence, and also the fact of their being members
rules which govern the courts at Westminster, of the same judicial Bench, prevented him (Mr.
and he would take that opportunity of protesting MeTaggart) from saying what he should have
against the notion that the majority of the cases said, and could have said in his praise had he
are treated according to the principle, if it could been absent. He trusted, however, that he might,
be called a principle, of what people were pleased without any breach of judicial etiquette, congratu
to designate rough justice," and to say that it late Mr. Harington most heartily and unfeignedly
was one of the most illusive epithets ever applied. upon the appointment made by the Lord Chan-
In Line cases out of ten rough justice meant in- cellor. He could also congratulate the learned
justice, and he could not conceive anything more judge upon the circuit over which he had been
calculated to shake the confidence of the public called upon to preside. His own experience told
than such a notion, mischievous if untrue, doubly him that, and there was a reason why Mr. Haring.
mischievous if true, and which could not ton should feel, in coming there, more gratification
be stamped out if those courts did not beat than he (the speaker) felt when he was appointed
with the same legal pulse as the Superior to the circuit. Mr. Harington was, what he
Courts. It was most important, too, that the was not, a Northamptonshire man. And it must
lowerclasses, to whom he believed those courts be a peculiar pleasure to Mr. Harington to find
had proved an immense good, should in those that his judicial functions had brought him into
courts find that their favourite maxim, that there a country with which he was connected by family
one law for the rich and another for the ties and associations. He trusted he might live long
poor," had a double bearing, and that if those to enjoy the fruits of the office. There were two
courts had opened to them for the first time very strong elements in his favour. Lawyers
remedies for oppression and injustice, the poor as were proverbially long-lived, but there was
well as the rich must consent to be bound, in the another advantage which he possessed. He was
exercise of those remedies, by those rules which a Northamptonshire man, and the longevity of
the legal experience of many years had proved to Northamptonshire men was as proverbial as the
be wise and salutary. To the registrars of the longevity of lawyers. A tontine was established
circuit, whose intimate knowledge of the pro- in the county in 1806 in which there were 90
cedure of the court had often relieved him from Northamptonshire lives, and at this moment 30
matters of detail, and caused the business of the of those lives still existed. There was an en-
court to work smoothly and efficiently, he could couragement for his learned friend. With such
bat offer again the same acknowledgment which a chance as that before him, he (Mr. McTaggart)
he offered when he sat for the last time as judge did not despair of his successor seeing the
of that circuit. He wished he could hold out to completion of the new law courts. At all
them a hope that their labours would be lessened, events, he hoped Mr. Harington might live
but, judging from public opinion, and if report for many years their judge, and, as long as he did

was

remain, meet with the kind co-operation and cordial goodwill of all connected with the circuit. If he did he would find as he (Mr. McTaggart) had found, that the labours of the circuit were not a toil but a pleasure. In conclusion he proposed the health of his learned friend and successor, Mr. Harington.

Mr. Harington, who, on rising, was warmly received, in the first instance thanked those gentlemen who had been practising that day in the Holbeach County Court, for the manner in which they did their work, out of, he believed, consideration for him, knowing, as they did, that he was an invited guest at that banquet. He had been told, before starting on his first circuit, that he should find a rather more obstinate spirit in the eastern end of the district-(laughter); that the Fenlanders stuck up for their rights, and did not like to be beaten; and that was a good sound English spirit. It had happened that the business on the first circuit had been unprecedently light, but it was a little heavier at the Fen end of the district, and just business enough, but for the consideration of those gentlemen who took the greatest possible pains, and did full justice to their clients, to make him lose his train. He wished to take advantage of the opportunity of attending to testify, in his own person, the respect he felt for his predecessor. He rejoiced beyond measure, and it gave him, if he might venture to say so, almost more pleasure than the cordial welcome he had received at their hands. (Applause.) It also gave him great additional pleasure to be thrown back upon scenes with which he had been associated in youth, and the name of his father could not be unknown as that of a gentleman who was a very active magistrate of the county. (Hear, hear.) He felt, in becoming judge of that circuit, he had the mi fortue to have to exhibit his shortcomings in contrast with the abilities and perfection of his predecessor, but he should labour to follow, though at a convenient and respectful distance, the example already set before him. He was quite sure there was nothing which conduced to the administration of justice more forcibly, in courts superior or inferior, than a thorough good friendly understanding between those who fill the office of judge and those who discharge the duties of advocate; and he could hardly find words to express his gratitude to his predecessor and to those who testified to that good feeling, for having prepared the way for him to the extent they had. (Applause.) That, again, added to his responsibility, because he felt, if that good feeling were disturbed, it would be his fault. It was his sincere and carnest prayer that it might be continued, and he could say that they would find him, if not as good a lawyer as his predecessor, as least as courteous and as honest a man. (Applause.)

Mr. McTaggart proposed, in eulogistic terms, "The Registrars and Officers of various Courts on the Circuit," and alluded to the great assistance which he always received from the registrars, to the great amount of knowledge they one and all possessed of the details of the court, and to their anxious desire to render the duties of the judge as light to him as possible. (Applause.) Mr. Gaches, of Peterborough, responded to the toast. Other toasts were given, and the company sepa

rated.

LEGAL NEWS.

The death is announced of Mr. Loftus Eland, Q.C., chairman of the county of Tyrone.

The Annual General Meeting of the Inns of Court Rifle Volunteer Corps will be held in Lincoln's-inn Hall, on Tuesday, Feb. 6.

Mr. Bridge, the newly appointed magistrate at the Hammersmith and Wandsworth Police-court, took his seat for the first time on Wednesday.

Mr. John Henry Barton, clerk of the peace of the county of Suffolk, was found dead in his bed on Sunday morning at his residence, Bury St. Edmunds. He was seventy-two years of and had held the office of clerk of the peace for thirty years.

age,

MR. JUSTICE GROVE.-On Saturday night a dinner was given at the Pall Mall, Cockspurstreet, by the United North and South Wales Circuit to Mr. Justice Grove, to congratulate him on his appointment as one of the Judges of the Court of Common Pleas. Mr. Giffard, Q.C., was in the chair, and there were also present Lord Romilly, Mr. Osborne Morgan, and nearly all the members of the united circuits.

SIR ROBERT COLLIER.-The Observer believes that no decision was arrived at in the Cabinet Council held on Friday week with reference to the course to be pursued by the Government in the event of the attention of Parliament being called to Sir Robert Collier's appointment. The whole correspondence relating to the affair will be laid before the Cabinet at the next meeting, and a final resolution will then, it is understood, be adopted.

240

THE SOLICITOR-GENERAL FOR IRELAND.-It is stated in Dublin that Mr. Palles, Q.C., had been appointed Solicitor-General for Ireland.

DR. BAYFORD. - The Chief Registrar of the Probate Court, Dr. Bayford, resigned, on Tuesday, the appointment which he had held since 1857, and

THE LAW TIMES.

A SOLICITOR. at would, I think, help to secure the measures proposed by that gentleman.

W. AND G. Any of your correspondents' views and references to cases (if any) will oblige,

80. BANKRUPTCY.-The Rules of 1871 state "where costs are incurred and the proveable debts do not exa lower scale of costs shall be allowed," with a proviceed 7501., or the estimated assets do not exceed 2001., shall be refunded. A registrar declines to allow full

was succeeded by Mr. Middleton, the Second Re. / honoured this case with an article, may I very sion that any costs paid on the higher scale in error

costs in a case where the provable debts are under
7501. but the assets over 2001. Can any subscriber give
the practice in other courts, or the result of any ap-
peal? Would the solicitor be entitled to the increased

gistrar. The learned doctor was much respected
by the officials and the Profession.
JUDICIAL APPOINTMENTS.-It is very probable
that precedents may be found for the exceptional
manner in which Sir R. P. Collier has been raised
to the rank of a judge, but the recently published the address of counsel for the execution creditors, covered to be above the scale ?

66

Z. rate if, after taxation, the debts and assets are dis

81. EQUITABLE MORTGAGE.-A. creates an equitable mortgage by deposit of deeds (with a signed memorandebt being discharged, is the receipt of B. and her Z. dum) to B., a spinster. B. marries, on the mortgage husband sufficient, or must there be a reconveyance acknowledged?

82. CONVEYANCE.-If land be conveyed to A. B., an Z. entitled to the property, assuming A. B. to have been infant, and his heirs, and A. B. dies under age, who is unmarried?

83. DEVOLUTION OF PROPERTY.-A. by will devises trusts. B. dies intestate, and the legal estate descends ot C., his eldest son and heir-at-law. C. does not deal with the estate in his lifetime. The estate having once real estate to B., his heirs, and assigns, upon certain descended can C. devise or must it devolve on his heir?

Z.

PERSONAL LIABILITY OF BANKRUPTCY TRUSTEES-COTTON'S CASE.-Seeing that you have shortly state as the attorney who argued the case for Mr. Cotton, though I did not act for or advise him in the proceedings which formed the subject of this case, that the principal points taken in Mr. Cotton's defence in an argument which, including occupied about four hours were first, that under the rule limiting the liability of the trustee, where no security is given, and by analogy Mr. Cotton was not liable in this case beyond the amount of the estate in his hands, but that if this was not so the remedy was to ask the leave of the court to appointment as trustee. Secondly, that the trustee enforce the bond which he had given on his acted in good faith, with the advice and consent tor appointed by them. Thirdly, that in respect of the committee of inspection, and of the soliciof some of the matters, as to which the costs were incurred, he acted under the actual order of the when a trustee took hostile proceedings by action or suit he was, if unsuccessful, liable for the costs court itself. Fourthly, that even assuming that of his opponents, that rule did not apply in this case, as there was no action or suit, but simply the issue of witnesses' summonses, and the examination of witnesses thereunder, with a view of ascertaining the facts, and if they warranted an as all the other action taken by Mr. Cotton was action or suit then taking such proceedings, and 85. DOCTRINE OF IMPLICATION.-A. B. bequeathed simply and solely relative to the administration of the bankrupt's estate in the court and in the matter of the bankruptcy. It was on this ground to trustees, with a direction to sell, pay debts, and (though secured creditors) were still creditors that I contended that the execution creditors and within the general purview of the Act; and place the remainder of the money on security, and take with a gift over on a contingency created by the followthe said child is the age of 21 years." By the same will "I also give to my said wife that the creditors being, as it were, the benefi. the interest for maintenance of his child (naming him), ciaries under the bankruptcy, Mr. Cotton's posing words: "If my child and wife should die before tion was like that of a trustee with reference to under 21 and unmarried. Does the wife take the was personally and ipso facto liable for costs in the whole estate, the only beneficiaries, save in the his cestui que trusts in an administration suit, the testator says: where it could not be contended that the trustee certain other things. These two bequests comprise opposing a claim or contention by one of the cestui contingency, being the child and wife. The child died sect. 15 of the Act as to release would be a farce. Sixthly, that so far as the payment of the solicitor's bill of costs went, it was not a payment a payment on of a bill within the rule, as no bill had been made out or presented; but it was account of a bill, in order that the solicitor (not myself) might have funds wherewith to pay counsel's fees and other outlay.

contain a little history "Fortescue Papers which seems to show how hard it is to exclude from a judicial bench anyone who has had, for over so short a time, even a nominal seat upon it. Sir Thomas Chamberlain was a justice of the King's Bench during the reign of James I., and was persuaded to exchange his office for that of Chief Justice of Chester-an office of much less dignity, and one which conferred no judicial title upon the holder. After the arrangement had been a certayne qualme came over his stomacke made, to be of a judge noe judge," and he wrote in high dudgeon to the Duke of Buckingham begging him to contrive that he should still retain the rank of a judge and use "the habitt, wherewith the judges are all well pleased and noe cause of offence to any one." The matter was settled in another way, and in accordance with the following suggestions made by the Lord Keeper in a letter to Bucking"You must tell my Lord Duke ham's secretary: that if he wold have him (Chamberlayne) live to goe downe into Wales, his Grace must move his Majestye to sign him this writt, whereby he may be a nominall judge of the Common Pleas, with his place in Wales, he disclayminge from all fees and profitts of the place in the Common Pleas. This is the onelye way to preserve him a judge, which he most ambitiously affectes, the poore man beinge tormented with the stone and allreadye upp to the gyrdle in his grave, but much offended at me that this preservation of his honor was not thought of before, which with the helpe of all the judges in Westminster Hall wee had much adoe to fynde out nowe. The effect (if the Kinge should aske you) is this: to make him a supernumerarye judge of the Common Pleas, without fee or charge, that soe, havinge once been a judge he might die que trusts. Fifthly, that if a trustee is liable, whole by implication or a life interest, or did A. B. die

:

a judge, which otherwise by his place in Wales he shall not doe, but playne Sergeaunt Chamberlayne." The sequel of the story is that the Welsh justice recovered his health and in the succeeding reign actually took his seat upon the Bench of the Common Pleas, of which he had been made only a nominal" judge.-Pall Mall Gazette.

66

NOTE.-This department of the LAW TIMES being open to
free discussion on all professional topics, the Editor is not
responsible for any opinions or statements contained in it.

THE TENURE OF LAND IN IRELAND. - The grievance complained of by Mr. C. Alexander in his letter to you, published on the 20th inst., can be remedied by a private Act of Parliament, which would not be opposed by the chairman of committees in the House of Lords, on evidence being given that in case of recovery the eldest son should not suffer any pecuniary loss; this is usually guarded against by entering into arrangements with an insurance office, who, on payment of a certain sum calculated on the value of the property in question, will covenant to indemnify the eldest son, in case of recovery, against all loss. I assume that there are no remainders after the younger brother, and that the mental condition of the eldest is, as stated, hopelessly incurable. When a pupil in the chambers of the late Mr. John Bullar, I saw several bills of that description in the course of preparation.

A SUBSCRIBER.

COUNTY COURT PROCESS.-Referring to your comments on the expense of a County Court summons and the costs of a writ, I can certainly say that I never received a writ for service on which the costs indorsed were so little as the total costs of obtaining judgment for 107. in the County Court would be, supposing the action to be undefended. This would be but 31s, and I do not remember ever seeing a less sum than 35s. indorsed on a writ for costs, and this upon a sum sued for of 21. 11s. 10d., in which case the County Court summons would have been but 4s. I may add that if a defendant admits the debt he saves half the hearing fee and all witnesses' expenses.

HENRY BARKER.

NOTES AND QUERIES ON
POINTS OF PRACTICE.

NOTICE.-We must remind our correspondents that this
column is not open to questions involving points of law
such as a solicitor should be consulted upon. Queries will
be excluded which go beyond our limits.
N.B.-None are inserted unless the name and address of the
writers are sent, not necessarily for publication, but as a
guarantee for bona fides.

Queries.

77. LANDLORD AND TENANT.-In the case of an ordi-
nary weekly tenancy is it necessary that the week's
notice should expire on Monday if the tenant entered
on that day? For example, if notice was given on
the following Wednesday? Could the landlord claim
Wednesday, would the tenant be liable for rent beyond
rent up to the following Monday on the ground of
CANTAB.
"usual custom," or on any ground whatever ?

78. Deeds-DUTY.-Upon an appointment of new
trustees, the following deeds have been executed.-(1.)
estate, assignment of mortgage debt of 10851., and
Appointment of trustees, with conveyance of real
usual declaration of trusts of the property thereby
separate deeds. (2.) Transfer of three debenture bonds
transferred, and also of the property transferred by
of 30001. each. (3, 4, and 5.) Three deeds transferring
mortgage debts of 16001., 1500l., and 8001. Will "Z. Y.,
or some other of your learned correspondents, kindly
CLERK.
say what duty should be paid on the respective deeds.

79. SCHOOL BOARD-ENROLMENT OF CONVEYANCE TO.
-In the year 1851 a piece of land was conveyed to
ducted upon the principles of the British and Foreign
trustees upon trust to erect a school thereon, to be con-
The site and school erected
on the 5th Nov. 1851.
School Society. This deed was duly enrolled in Chancery
school board for the parish without any consideration:
thereon have been transferred by the trustees to the
Referring to sect. 30, sub-sect. 1, of the Elementary
"school board shall acquire and hold land for the pur:
Education Act 1870, it is enacted (inter alia) that the
poses of this Act without any licence in mortmain;'
and also referring to Williams on Real Property, p. 68,
6th edit., it is stated "when land has been already de-
voted to charitable purposes, the conveyance thereof
within the purview of the Mortmain Act, and accord.
THE LEGAL PROFESSION.-May I refer Mr. to other trustees or to another charity does not fall
Charley to my letters and the other correspon-ingly requires no special attestation or enrolment.
without any consideration, does that deed (looking at
dence which took place in your paper at the end The transfer to the school board having been made
of September and the beginning of October last
year? Such associations as I have there hinted the above facts and references) require enrolment ?

GEORGE WILKINSON, Registrar.

"

86. TRUSTEE ACT (23 & 24 VICT. c. 145)-The wording to trustees of leaseholds or other personalty? are employed. Part of this Act seems to be irregular. Does Part I. refer applicable to freehold property. Also the technical terms "use" and "conveyance Would II., as to mortgages, speaks of "hereditaments of any term used is hereditaments which is only properly tenure," and further on of "the property." this include personal property? Part III., in the provisions for appointment of new trustees, speaks of executors and administrators, and of conveying, asX. Y. Z. signing, and transferring the trust property, thereby undoubtedly including personalty.

LIVERPOOL LAW STUDENTS' SOCIETY. Ought the law of brary, 14, Cook-street, on Thursday, the 18th inst., AT a meeting of this society held at the Law LiMr. Alfred D. Townsend, solicitor, presiding, the primogeniture to be abolished?" After several subject for discussion was " of the members present had addressed the meeting, a visitor, Mr. W. J. Stewart, of Exeter College, Oxford, spoke on the question, and gave a long ture, and the arguments in favour of and against and interesting account of the right of primogeni the meeting the negative was carried by a large its continuance. Upon the question being put to majority.