INDEX TO CASES

DIGEST TO CASES

66

APOTHECARIES. Where an Act of Parliament imposes a penalty upon a person acting in a certain capacity without being qualified according to the Act, or not having taken the oath mentioned in the Act, and an action is brought against him to recover the penalty for acting without being qualified," his not proving that he had taken the oath does not render him liable in that action, the oath not being part of the qualication. Tupper v. Newton, 12. What amounts to illegally practising as an apothecary within the meaning of 55 Geo. 3, c. 194. The Apothecaries' Company v. Baldwin, 10.

APPEAL.

Co. C. appeal-When it lies-Amount claimed in the plaint.-An appeal lies to the Superior Court from the Co. C., where the debt, damage, or demand claimed exceeds 201., notwithstanding the sum recovered be under 201. Harris and another v. Dreesman, 58.

County Court-Appeal—Jurisdiction of Superior Court -Interpleader-Construction of 145th Rule of Practice.-There is no jurisdiction given to the Superior Courts to hear appeals from the Co. Courts in interpleader cases. Semble, particulars of goods and grounds of claim in interpleader cases might be amended, and a new summons issued, if necessary, and the judge so directs. Beswick v. Boffey, ex parte Moses, 33.

Co. C. appeal-Agreement of the parties that Co. C. shall try, although the matters be beyond its jurisdiction-No appeal in such cases.-An appeal does not lie from the Co. C. to the Superior Court in any case in which the parties have given by voluntary agreement jurisdiction to the Co. C. judge to try the cause, and in which he would not have, except by the voluntary agreement of the parties, jurisdiction to try: under the 13 & 14 Vict. c. 61, s. 17. Janssens v. Groves and others, 57.

13 & 14 Vict. c. 61, ss. 14 and 15-County Court rules of practice, 162, 163-Signature of case by judgeTransmission of copy to Rule Office-Time." Wilkinson v. Figg, 33.

ARBITRATION.

Award by two arbitrators-Execution at different places. -Upon a reference to three arbitrators, "so as the award of the said arbitrators, or any two of them, be made in writing, &c. on or before, &c." the award was signed by one arbitrator at Bristol, and by another in London: Held, not a due execution of the award, and that the defendant was entitled to the verdict upon a plea of "no such award" to a declaration framed upon it. Wade v. Dowling, 155. Common Law Procedure Act 1854, ss. 3 and 4Power to direct arbitration-In what cases-Matters of mere account-Dispute as to liability for freight.In an action for freight, where the items of the account were admitted, but the defendant claimed a deduction in respect of timber alleged to have been improperly cut by the master at Quebec, which claim was answered by the allegation of a custom at Quebec authorising the master so to cut the timber, the defendant applied to the court so order a reference under the sect. 3 of the Common Law Procedure Act 1854: Held that the section did not apply to such a case. Sim v. Oliver, 274. Where arbitrators make an award without giving notice to the parties that they are going to do so, and without asking if there were any witnesses, the award will be sent back.-Semble, that where a cause is referred to two arbitrators, and one other person to be named by them, and the parties afterwards treat such third person as an umpire, and prove that the two are proceeding with the award by themselves, the court will not disturb the award. Peterson v. Ayre, 133.

Arbitration-Neglect to enlarge time-Discretion of the court.-The 3 & 4 Will. 4, c. 42, s. 39, which enacts that "the court, or any judge thereof, may from time to time enlarge the time for any such arbitrator making his award," applies equally to a case where the arbitrator has himself power to enlarge the time for making his award, but neglects to enlarge it, as to the case where he has no such power. The court, in exercising its discretion in enlarging the time for an arbitrator to make his award, will be guided by the particular circumstances of the case, and will not enlarge it if by so doing it will put either of the parties in a position of disadvantage. Where, therefore, an arbitrator allowed the time for making his award to expire without enlarging it, and afterwards the plaintiff died, and an application was subsequently made to this court for an enlargement, which the defendant resisted on the

ATTORNEY.

Attorney-Costs-Business done at and before parliamentary election-Jurisdiction to order taxation6 & 7 Vict c. 73, and 12 & 13 Vict. c. 53.-Where, at and before a parliamentary election, an attorney was employed to assist in procuring the return of a candidate: Held, that the court had jurisdiction to order his bill of costs for such services to be taxed. The court also restrained the attorney from proceeding at law for his costs pending such taxation; and refused to direct the Taxing Master to tax separately the costs incurred previously to and at the election, or to distinguish between the items for services rendered in a professional capacity, and those which might have been rendered by a person not an attorney. Re Collis, 109. Taxation-6 & 7 Vict. c. 73, s. 38-Cotrustee-Agreement to share profits with solicitor.-A solicitor, who was one of four trustees, entered into an agreement with another solicitor to conduct the sale of an estate, which was in mortgage to the trustees, upon agency terms. The parties entitled to the equity of redemption had taxed the solicitor's bills of costs under an order of the court; and the Taxing Master, being informed of the agreement between the solicitor and the trustee, taxed the bill on the principle of principal and agent, and consequently the bill was reduced more than one-sixth; and the Master therefore taxed the petitioners on that occasion their costs of the taxation, to be deducted from the amount payable to the solicitor. The solicitor appealed against the Master's certificate: Held, that the agreement between the solicitor and the trustee was valid; but that the trustee (the solicitor) could not retain the benefit of it for himself, but that it enured for the benefit of the body of trustees, and, through them, of parties entitled to the equity of redemption; and therefore that the principle of taxation adopted by the Master was right. Re Taylor, 128.

BAILIFF.

Statute 7 & 8 Vict. c. 19, s. 1, after reciting that "courts are holden in and for sundry counties, hundreds and wapentakes, honours, manors and other lordships, liberties and franchises, having by custom or charter jurisdiction for the recovery of debts and damages in personal actions, and in many places great extortion is practised under colour of the process of such courts," enacts, "that the judge of every such court shall have power to appoint bailiffs of the said courts, and that they and no other persons should serve summonses, writs and other processes: provided always, that this Act shall not extend to prevent any process from being executed by any high sheriff or high bailiff." Sect. 9 enacts (inter alia), that in case of actions brought against such bailiffs for anything done in discharge of their duty as bailiffs, one month's notice of such action, and of the cause thereof, should be given. Quare, whether the Borough Court of Record of Birmingham is a court within the 1st section of the above Act. A person acting for a Serjeant-at-Mace, who was appointed by the corporation, as his follower in the execution of writs, without having any appointment, is not either de jure or de facto a bailiff appointed by the judge within the statute. Tarrent v. Baker, 12.

BILL OF SALE. Bill of sale—Future crops Execution-creditor's right -Insolvent-5 & 6 Vict. c. 116-7 & 8 Vict. c. 96, 8. 21. By a bill of sale under seal, dated Jan. 1848, a debtor assigned to the plaintiff all his household goods in and about his dwelling-house, and all his live and dead farming-stock, crops of grain, and the whole of his personal estate in and about the same, and upon the said farm and land, to hold as a security for the repayment of certain sums already advanced, and as may thereafter be lent, not exceeding in the whole 20007., with a proviso that it should be lawful for the plaintiff at any time to

seize and take possession of the said household goods, live and dead farming-stock, crops of grain, and other effects which should or might from time to time be substituted in lieu of the said stock, crops, and implements of husbandry thereby assigned or any part thereof, or which should for the time being be found in or about the house, farm, lands and premises, either in the lifetime of the debtor or afterwards, and to sell same, and out of the proceeds to pay all costs, &c., and moneys due to the plaintiff. Additional advances were made, and on 21st Feb. 1819, 12977. being due to the plaintiff, he seized and took possession (amongst other things) of some crops of grain then growing upon the said farm and lands, and which had been sown by the debtor after he gave the bill of sale. The plaintiff took and remained in possession. The day following his seizure, an execution-creditor under a judgment against the debtor delivered a fi. fa. to the sheriff, who also seized the same growing crops. On the 8th March 1849 the debtor presented his petition to the Insolvent Court, under The the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96. official assignee thereupon claimed the crops, &c. so seized, and filed a bill in the Court of Ch. to restrain plaintiff from selling, but it was dismissed upon terms agreed upon between plaintiff and the assignee, who abandoned all claim to such crops. The sheriff continued in possession under the fi. fa. of the execution-creditor, and the crops were subsequently sold thereunder for not a sufficient sum to pay the plaintiff: Held, that, as against the execution-creditor, the plaintiff was entitled to the proceeds of the growing crops. Congreve v. Evetts, 277.

BILLS OF EXCHANGE AND PROMISSORY

NOTES.

Bill of exchange-Sale-Accounts-Common agentEntry in agent's books to credit of vendor-Purchaser's discharge.-A. at the Cape of Good Hope sent an order for coffee to B. at Rio Janeiro, stating that "for the costs of said order he (A.) had opened a credit with C. of London in favour of B." B. sent the coffee, and drew accordingly at sixty days' sight on C., who was, and had for some time been, the common agent of both A. and B. On receipt of the bill C. marked it as accepted, and afterwards accepted it formally, and entered the amount in his books to the credit of B. with interest as from the date of receipt, and at same time debited A. with the same amount as from the same date. C. stopped payment before the bill became due, and it was protested for nonpayment. At no time had C. assets sufficient to cover his liabilities for A. on the bill and other accounts, and B. was a creditor of C. when C. stopped payment. B. sued A. for the price of the coffee: Held, reversing the judgment of the Supreme Court of the Cape of Good Hope, that the circumstances did not import that B. had accepted the credit as an immediate payment, and had taken the risk of C.'s insolvency, for that C. had no right to enter it as a present payment without B.'s consent; and that, therefore, B. was entitled to recover from A. the price of the coffee. Maxwell v. Deare,

82.

Practice - Bill of exchange - Acceptance in blankFraudulent misrepresentation-Revocation of authority by death.-V. C. Stuart will not hear counsel of either bar in chambers. The rule that the giving of a blank acceptance is evidence of authority to the person to whom it is given to fill up the bill to any amount, and it may be for the term to which the stamp extends, only applies to bonâ fide holders for valuable consideration without notice. Therefore, where A. gave B. two acceptances in blank, upon stamped paper, and afterwards died, and B. filled up the bills after the acceptor's death (with a misrepresentation as to the testator's residence), and indorsed them over, the holder of one of the bills being present at such filling up, and the other being aware of the original transaction: Held, that the authority given to B. was revoked by his death, and the claims of the holders of the bills against A.'s estate disallowed. Hatch v. Searles, 54. Bill of exchange after sight-Presentment for acceptance -Reasonable time-Solvency of parties-LachesBanker's cheque.-In bills of exchange payable on or after sight, our law does not, like that of some foreign nations, fix a time for presentment for acceptance; but the rule is that, where there is no usage of trade, the bill must be presented within a reasonable time, which is a mixed question of law and fact for the determination of a jury, with the assistance of a judge. In such questions the interests not only of the drawee, but of the holder also, must

be taken into account; and, though the bill need not be sent for acceptance by the very earliest opportunity, there must be no improper delay. And it is no answer to the objection of laches, that the parties remained perfectly solvent from the date of the bill to the day of presentment, and that no actual loss was occasioned by the laches. But these rules do not apply to a banker's cheque, which is a peculiar sort of instrument. A., of Calcutta, drew a bill, payable sixty days after sight, on B., of Hong-Kong, and indorsed it to C., of Calcutta, who, finding bills on China unsaleable, owing to a depression in the market with no immediate prospect of improvement, kept the bill for five months, and then indorsed it to D., who forwarded it to China for presentment, when B. refused to accept it. D. sued A. the drawer, who pleaded that the bill had not been presented in a reasonable time for acceptance. The parties had all continued solvent, and no actual damage was caused by the delay: Held, affirming the decision of the Supreme Court in Calcutta, that presentment had not been made in a reasonable time, and that A. was discharged. Mullick v. Radakissen, 102. Bill of exchange-Alteration in material part-Holder for value.-After acceptance and before indorsement for value, a bill of exchange was altered by adding the words "payable at the Bull Inn, Aldgate;" the indorsee took the bill without notice of such alteration: Held, that the acceptor was discharged by such alteration, and could not be sued upon the bill by the indorsee. Burchfield v. Moore, 175. Promissory note-Payee-Sufficiency of designation.A note payable to the secretary for the time being of a company, and showing that it was intended to be payable to the individual who, at the time of the instrument falling due, should be in the situation of secretary to the company, is a note payable on a contingency and void. Storm v. Stirling, 176. Promissory note-Material alteration - Memorandum as to interest.-After the making of a promissory note, and before it became due, there was written in the corner of it, without the maker's consent, "interest at six per cent. per annum." In the body of the note the principal sum was made payable with lawful interest: Held, a material alteration of the note and a good defence in an action by payee against the maker. Warrington v. Early, 32. Bill of exchange-Effect of admission of acceptanceNecessity of excepting just exceptions.-An admission that the acceptance to a bill of exchange is in the defendant's handwriting is evidence for the jury without its production. Chaplin v. Levy, 59. Action for goods sold-Defence of a bill outstanding in the hands of a third party. Horne v. Broomhead,

85.

Tippling Act-Promissory note- Consideration.-A promissory note the consideration for which is liquor sold contrary to the Tippling Act, is prima facie valid-inasmuch as that act does not make the consideration illegal, but only takes away the remedy. Clarke v. Carlisle, 17.

Foreign bill of exchange-Stamp-Bill drawn abroad but filled up in England.-In an action by indorsees against the acceptor of a bill drawn abroad, filled up in England, and which, upon the face of it, purported to be a foreign bill, the bill is admissible in evidence without a stamp, notwithstanding it may have been improperly filled up in London, contrary to the direction and intention of the drawer; the bill being in the hands of a bona fide owner, for value, without notice. Barker and another, v. Sterne, 132.

Plea-Acceptance by defendant of a bill-Lost bill.-In

an action for goods bargained, sold and delivered, the defendant pleaded, as to 421. 58. 2d., parcel, &c. that before action, he accepted a bill of exchange for that amount drawn on him by the plaintiff, payable to plaintiff's order five months after date; that the plaintiff took and received such bill for and on account of the said sum of 421. 58. 2d.; and that the plaintiff afterwards lost such bill out of his possession, and from thence hitherto the same has remained so lost, and the plaintiff has been unable to produce it, and ceased to have any power or control over it; and the defendant has never since such loss found such bill, nor known where it was to be found, nor had any power or control over it: Held, reversing the decision of the court below, that the plea was a good plea to the action. Crowe v. Clay, 108.

BUILDING SOCIETY. An action will not lie against a director of a building society to recover back subscriptions paid to the society. Wigley v. Richardson, 282. Action for penalty for breach of a covenant entered into by the owners of certain allotments in a building society-Liable for full penalty though the actual injury may not amount to it. Lawton, 85.

CARRIERS.

Walker v.

Liability of-Damage to goods and to person-Party hiring. Where a carrier's cart was hired for the sole purpose of removing goods, and the owner of the goods got into the cart at the invitation of the defendant's servant, who assured her it was safe: Held, that though the carrier was liable for damage

CASE.

CHARITY.

Demurrer-Parties-Agent-Money in possession of.— An agent of the trustee of a charity, having moneys belonging to the charity, and the deeds relating to the charity property in his possession, is not a proper party to an information for an account of the charity property. Attorney-General v. The Earl of Chesterfield, 175.

Foreign object-Scheme-Jurisdiction-Accumulations. -A testator bequeathed 2000l. to build a bridge in Scotland. The trustees had not applied the money for the object, but had invested it in Consols, and accumulated the interest: Held, that the accumulations must be treated as forming part of the original bequest for the charitable object; but held, that the Co. of Ch. in England had no jurisdiction to direct a scheme to carry into effect a charity in Scotland; and that proceedings must be taken in the courts there, with regard to the administration of the trust; and that the fund must be paid over to the proper officer of the Scotch court. Forbes v. Forbes, 155.

Funds employed in aid of poor-rate-Scheme.-A testator, before the Mortmain Act, devised property upon trust for sale, and one portion thereof to be applied by the mayor, &c., of R. for the perpetual relief, comfort and sustentation of an almshouse, &c.; and convenient places were to be made for lodging poor travellers or wayfaring men, "being no common rogues or proctors," for one night only, unless sickness be the further cause, who were to be maintained and to have 4d. a night given to them. There were then trusts for applying the income of the charity, in re-edifying and increasing the almshouses, and for the provision of flax, hemp, &c., to set the poor at work, according to the purview of 18 Eliz., and for the further relief of such as be poor and impotent, as the statutes of the realm would permit. By a decree made in 1674, and by a deed of arrangement, the application of the funds was extended to two other parishes within the precincts of the city of R., though no question was raised, or declaration asked, as to the mode in which the funds were to be applied; nor did it appear that they were at that time improperly applied in payment of parochial or other rates. Afterwards the income of the charity greatly increased, but no additional sums were expended on the almshouses, or additional assistance given to poor travellers; but the surplus was handed over to the overseers, and employed in payment of parish and borough rates: Held, affirming the decree of the court below, that a scheme ought to be directed having regard to the will and deed, and the decree of 1674, and that the appeal ought to be dismissed with costs. If an instrument be doubtful in its terms, it is to be interpreted by contemporaneous usage; and if there has been a long usage in the application of funds to purposes which may be warranted upon one con

struction of the instrument, but which may not be warranted upon another, the court will lean to that construction, provided it be doubtful which will best correspond with the mode in which the funds have been for so long a period applied; but no usage for a length of time will warrant the court in making a decree in contradiction to a clear and express trust. Attorney-General v. The Mayor and Corporation of Rochester, 152. Railway-Re-investment of purchase-moneys-16 & 17 Vict. c. 137, s. 17 (Charity Administration Act.) -A petition for the re-investment of the purchasemoney of land belonging to a charity, taken by a railway company must be presented with the leave of the Charity Commissioners under the Act of the 16 & 17 Vict. c. 137, and must be entitled in Sir S. Romilly's Act. Re The Brighton and South Coast Railway Act. Ex parte The Haberdashers' Company,

105.

The Charitable Trusts Act 1853, 16 & 17 Vict. c. 137, s. 17-Certificate of the Charity Commissioners for England and Wales.-Where a private Act of Parliament was passed five days previous to the Charitable Trusts Act 1853, empowering the trustees of the above-named charity to sell or exchange the trust-property vested in them, with the sanction of the Court of Chancery, or of a judge of that court in chambers, and the trustees proceeded under the powers of the private Act without regard to the Charitable Trusts Act: Held, that notwithstanding, the provisions of the private Act, the trustees were bound to apply for the certificate of the Charity Commissioners before instituting any proceedings in this court. Re The Bingly School and Re The Charitable Trusts Act 1853, 174.

Mortmain Act-Bequest of money secured upon rates levied for a public building.-Money secured by mortgage, on rates levied under a special Act of Parliament for building a town-hall, and recoverable by warrant of distress, was bequeathed to a charity: Held, affirming a finding of the Master, that the mortgage was "an interest in land," within the meaning of the Mortmain Act, 36 Geo. 2, c. 36, and therefore the bequest of it to a charity was void. Thornton v. Kempson, 174.

Bequest to "establish" a school.-A testator gave 20002. to pay a master and mistress of a school which he wished to have established in the parish of A. after his death, for children: Held, that the establishment of a school did not necessarily involve the purchase of land, and, therefore, a gift for such a purpose was not obnoxious to the Mortmain Act, 9 Geo. 2, c. 36, and was a good bequest in favour of the parish. Hill v. Jones, 200. Appointment of trustees to a Wesleyan chapel-Peto's Act- The Charitable Trusts Act 1853."-Mr. Peto's Act, 13 & 14 Vict. c. 28, does not apply to a chapel of the Wesleyan Methodist connexion; and therefore, there being a necessity of appointing trustees, the "Charitable Trusts Act 1853," 16 & 17 Vict. c. 137, was resorted to for the purpose. Re Hoghton Chapel, 224.

Charity Estates Act.-Order for the removal of the old trustees for the sale of the schoolroom and premises, and the application of the proceeds to the purchase of a new site, and the erection of more suitable premises. Re The Infant Church of England School, Newcastle-under-Lyme, 283. School-Religious teaching.—Where the will of the founder of a school was expressed in general terms, and the letters patent incorporating the school were also general, but gave the governors power to make ordinances for the good rule of the school, so that the same should be reasonable: Held, that the school was not a Church of England school, and that the statutes ought to exempt the children of parents objecting from receiving religious instruction. Attorney-General v. Haberdashers' Company,

273.

Gift of the surplus-Increased rents of estates-Construction of will.-A. by his will, after reciting that he had founded a school which had prospered greatly, gave and bequeathed to the corporation of S., and their successors for ever, all his right in certain lands "provided and upon condition that they do pay" 401. per annum to the said school and certain other specific bequests; and then he said "the overplus which the said lands do produce, beyond and more than all these disbursements do amount unto (which I do find and compute to be about 60%. per annum), shall go unto him who is and shall be mayor of S. for the time being, towards the expenses of the mayoralty." The will referred to an account annexed of the "income and outgoings" of all he had given to the corporation of S.; and, after setting down under "outgoings all the specific disbursements as expressed in the will, a balance of about 60%. appeared, which was described "balance which the corporation of S. will gain per annum; and whatever the balance (de claro) proves to be, more or less, it is given every year to him that shall be Mr. Mayor in being." The rents having subsequently greatly increased, and an information having been filed to declare the right thereto Held, reversing the decree of the M. R., that the will contained an absolute and unconditional gift to the corporation of S. of the surplus which remained after paying the specific disbursements mentioned in the will, and that the