SUMMARY OF DECISIONS.

ACCIDENTAL INJURY. -Animal, custody of.-Negligence.-A child who was lawfully on the highway was kicked by a horse grazing thereon. In an action against the owner for negligently keeping this horse so that the plaintiff was injured, it was proved that the horse kicked the child without any apparent reason, but no scienter was alleged or proved: Held, that the action would not lie (Cox v. Burbidge, 11 Week. Rep. 435). The C. J. said before there can be negligence there must be a duty to be performed.

BANKRUPTCY.-Application for release from custody by unsuccessful plaintiff in an action of slander.-12 & 13 Vic. c. 106, s. 112.-By the Act just cited, if an adjudicated bankrupt in person has surrendered and obtained his protection from arrest, the Court may order his immediate release, except in certain cases, among which is that of his being in custody "for any debt contracted by reason of any judgment for libel, slander, &c." It has been decided that an unsuccessful plaintiff, in an action for slander, is not in custody for "a debt contracted by reason of any judgment in any action for libel, slander, &c.," within the meaning of the above 112th section of the Bankrupt Law Consolidation Act, 1849; the words refer to defendants only, and not to unsuccessful plaintiffs (re Neale, 11 Week. Rep. 441).

Bankrupt Law Consolidation Act, 1849, s. 67.-Assignment by trader of a portion of his property to secure certain creditors.Whether an act of bankruptcy under s. 67.-What a substantial exception.-Book debts.-Colourable exception.-Fraud.—The general rule is well down in Pennell v. Reynolds (11 C. B., N.S., 709; 5 Law Tim. Rep., N.S., 286) that if a person, being a trader, makes an assignment of the whole of his property, with only a small and colourable exception, it is an act of bankruptcy; but if there is an assignment, not of the whole property, nor of the whole with a colourable exception, but of part only with a real and substantial exception, such an assignment is not an act of bankruptcy unless some fraud is proved. This case has been followed in the case about to be mentioned, where it appeared that W., a trader, being insolvent, executed under pressure, on 27th June, 1860, a bill of sale of his stock-in-trade and other effects to two creditors (the defendants) to secure debts due to them, amounting together to £168. The assignment included the whole of his stock, goods, and effects on his premises, except book debts and some tea in bond, which could only be obtained by paying down a sum of £15. The bill of sale was put in force the day after its execution, and realised, after paying £33 (the expenses of sale), £160 nett to defendants. On the 6th July, 1860, W. was made a bankrupt on his own petition; but the bank

ruptcy was annulled, and a fresh adjudication was subsequently made on the petition of one of the plaintiffs. The excepted property realised the sum of £93: Held (affirming the decision of the Court of Exchequer), that as the bill of sale was a bona fide assignment of a part only of the debtor's property, made under pressure and without fraud, it was not an act of bankruptcy under s. 67 of the 12 & 13 Vic. c. 106, the Bankrupt Law Consolidation Act, 1849 (Smith v. Timms, 7 Law Tim. Rep., N.S., 859).

COUNTY COURT APPEALS.-Costs.-In appeals from the County Courts to the Superior Courts, the rule as to the costs is, that the successful party must have his costs, unless there be special circumstances to lead to the contrary, and those special circumstances must be substantial (Emery v. Ward, 11 Week Rep. 427).

ENROLLING DEOREE.-[1 Exam. Chron., pp. 134, 168; 2 Id. 292.] -Vacation of enrolment.-Consolidated Order xxiii., r. 27.—By the 27th rule of the above Order it is provided "that where a caveat is entered with the proper officer to stay the signing of the docket of the enrolment of any decree or order, such caveat shall be prosecuted with effect within twenty-eight days after the docket of such decree or order shall be left to be signed with the proper officer by the party who entered the same, otherwise such caveat shall be of no force, and the docket of such decree or order may, immediately after the expiration of the said twenty-eight days, be presented to be signed, as if no such caveat had been entered.' A caveat had been entered to stay the signing of the enrolment of a decree within the twenty-eight days prescribed by Rule 27 of Consolidated Order xxiii., a petition of re-hearing was presented, notice of which was served on the other side after the expiration of the twenty-eight days, but before the enrolment was completed. The decree was afterwards enrolled; it was held that the enrolment could not be vacated. The L. C. said that the docket must be taken to be signed by himself on the day on which it was dated. If a caveat was entered the signature was deferred till after the caveat had run out, and then the signature was appended on the same date as before. The suspended signature must be considered as subsisting, subject to the caveat, and when that expired it came into force as if no caveat had been entered (Att. Gen. v. Conservators of Thames, 11 Week. Rep. 408),

HIGHWAY.-Obligation of parish to repair. - Dedication to the public. Enclosure Act.-Occupation-road.-User by all persons at their free will and pleasure.—After such a user of a road as amounts to evidence of a dedication to the public, an act of adoption by the parish is not necessary in order to cast on the parish the obligation to repair it, and, therefore, when a road originally laid out as an occupation road, under an Enclosure Act, had been used by

the public: Held, that the parish, without any act of adoption on their part, were liable to keep it in repair (Reg. v. Horley, 11 Week. Rep. 433).

FIRE INSURANCE.-14 Geo. III. c. 78.-Metropolitan building and insurance.-The 14 Geo. III. c. 78, which, however, applies only to premises in London, Westminster, and the bills of mortality, in order to deter and hinder ill-minded persons from wilfully setting their houses, &c., on fire, with a view of gaining to themselves the insurance money, whereby the lives and fortunes of many families may be lost or endangered, be it enacted, &c., that upon the request of persons entitled to houses which might be burnt down, or upon any suspicion that the owners, occupiers, or persons insuring the houses shall have been guilty of fraud, or have wilfully caused the fire, the governors or directors of the several insurance companies shall cause the insurance money to be laid out and expended as far as the same will go towards rebuilding, reinstating, or repairing such house or houses, &c., so burnt down, demolished, or damaged by fire. It has been held, upon the construction of the above Act of the 14 Geo. III. c. 78, s. 83, a landlord claiming to have the money arising from an insurance effected by his tenant laid out in rebuilding the premises which have been burnt down, must make a distinct request that the money shall be applied for that purpose pursuant to the statute, and is not entitled himself to rebuild the premises and then claim the money (Simpson v. Scottish Insurance Co., 11 Week. Rep. 459).

MORTGAGES.-Priority of incumbrancers. Acquisition of legal estate. The following decision shows that an incumbrancer cannot always avail himself of the benefit which a legal estate frequently gives. Thus, it has been decided that the priorities of several successive equitable mortgagees cannot be altered by the transfer, by the mortgagor, of the legal estate to any one of them, the mortgagor being a trustee of the legal estate for all such incumbrancers. If, however, the legal estate is outstanding in a third person, who has no priority with the incumbrancers, the acquisition by one of them of such legal estate will give him priority over the others (Sharples v. Adams, 11 Week. Rep. 450).

VOLUNTEERS.-Exemption from turnpike toll.-Volunteers in uniform, going to attend a mere voluntary rifle match, at a duly appointed place of rifle practice, but open to all the world, are not entitled to exemption from toll under 24 & 25 Vic. c. 126. (Teather v. Turner, 11 Week. Rep. 425.)

TRUCK ACT.-Payment of wages in goods.-1 & 2 Will. IV. c. 37. -By s. 3 of this Act it is enacted "that the entire amount of the wages earned by or payable to any artificer, in any of the trades

hereinafter enumerated, and in respect of any labour by him done, in any such trade, shall be actually paid to such artificer in the current coin of the realm, and not otherwise; and every payment made to any such artificer, by his employer, of or in respect of any such wages, by the delivery to him of goods or otherwise than in current coin aforesaid, except as hereinafter mentioned, shall be and is hereby declared illegal." The 9th section of the Aet inflicts penalties on employers for making any payment rendered illegal by the third section. In a recent case the following points were decided, namely, first, that an employer has no option of paying his workman in goods, even if the workman choose to accept payment in that way; and, secondly, he is not exempt from the penalties imposed by the 9th section of 1 & 2 Will. IV. c. 37, though he subsequently pay in coin the wages which he has previously paid in goods. It appeared that the employer paid a portion of a workman's wages in goods, not being such as are within the 23rd and 24th sections of the Act. He was afterwards summoned by his workman for the whole amount of wages due, including the amount for which the goods had been supplied, and was ordered to pay the full amount, which he did. Subsequently, an information was laid before magistrates, under the 9th section of the Truck Act, for paying wages in goods, and discharged. On appeal to the Court of Common Pleas it was held that the magistrates ought to have convicted; the offence not being extinguished by the subsequent payment in coin. (Wilson v. Cookson, 11 Week. Rep. 426.) As Mr. Just. Keating observed, "It is clear that, under no pretence, shall the master give, in exchange for the work of the artificer, other than the current coin of the realm," adding, "payment in bank notes would not be good, except by the consent of the workman."

ADMINISTRATION BOND.-Creditor suing on, not in his own right, bul as trustee.—A bond given by the sureties of an administrator under the Probate Act, and assigned to a creditor under the 83rd section of that Act, cannot be enforced by him merely for his own benefit, but as trustee for all parties interested in the administration of the estate. The Probate Act has in no way altered the former state of the law on this point (Saundrey v. Mitchell, 4 Law Tim. Rep., N. S., 849).

BANKER.-Payment of cheque.-Property passing.-Re-taking money handed over to customer.-Where a banker, in the usual course of business, takes a cheque payable to bearer, and places the money for it upon his counter for the person who presents the cheque, the payment is complete, and he cannot re-take the money on any pretence whatever. The point arose thus:-The clerk of a customer of the bank took a cheque to be cashed; the money was paid; but while the clerk was counting it the bank clerk was informed that

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there were no assets, and, demanding it again and being refused, took the customer's clerk into the private room, and compelled him to restore the money so paid in mistake, and for this the customer's clerk brought his action and recovered (Chambers v. Miller, 7 Law Tim. Rep., N. S., 856).

BANKRUPTCY.-Conditional order of discharge.-Delivering up lease. Where the assignees have sold the lease of a bankrupt's premises, and he refuses to execute an assignment to a purchaser, the Court will make the order of discharge conditional on the execution of the deed (Re Moss, 7 Law Tim. Rep., N. S., 866).

EQUITY, PRACTICE.-Appeal from orders in chambers. The following is the case elsewhere referred to as deciding that an appeal from an order made by the Judge in chambers will be entertained on an application before decree in those cases where, under the old practice, they would have been made in court (Snowden v. Metropolitan Railway Co., 8 Law Tim. Rep., N. S., 11).

Appeal from order made in chambers.-The Lord Chancellor has decided that the Court of Appeal will not hear an appeal from an order made by a Judge in chambers after a decree has been pronounced, although the Judge declined to adjourn the matter into Court: yet, as will be elsewhere seen, such an appeal lies on such an order before decree. The distinction is very refined and unsatisfactory (McVeagh v. Croall, 8 Law Tim. Rep., N. S., 11).

MORTGAGE-Foreclosure.-The Court of Chancery will not make a decree for foreclosure in the absence of a party interested in the equity of redemption, even though the heir-at-law of the mortgagor and the mortgagee in fee of the legal estate are before the Court and such absent party is only one of several tenants in common interested in the equity of redemption (Caddick v. Cook, 7 Law Tim. Rep., N. S., 844).

WILL. Construction.—" Heirs" in reference to personal estate.— In wills of personal estate, where the word "heirs" is used, it will be considered as indicating "successors according to the quality of the estate," and, consequently, the next of kin of a party who dies entitled to a share of personalty will take. The decision in Doody v. Higgins (9 Hare, appx. 32) was followed (Re Preston's Trusts, 8 Law Tim. Rep., N. S., 20).

EQUITY, JURISDICTION.-25 & 26 Vic. c. 42.-Questions of law or fact.-Jurisdiction to direct action at law.-The above Act, commonly called Mr. Rolt's Act, recites that "Whereas the High Court of Chancery has power in certain cases to refuse or postpone the application of remedies within its jurisdiction until questions of law and fact upon which the title to such remedies depends have been determined or ascertained in one of her Majesty's Courts of Common