hes and clinkers were domestic e refuse of a trade, manufacture,

that therefore the appellata 1 to extra payment for the e. (St. Martin's Vestry, app

tion Act 1879-Refusal of mare case-Question of law-Renal Jes-" Trade refuse."-It is preetropolis Local Management do ict. c. 120) that the vestries shal s to remove all dirt, ashes, se. arish; that if the owner of any require the scavenger to remove ny trade, such owner shall pay ta a reasonable sum for such removal: ices shall determine whether the

not the refuse of trade, and the uch justices shall be final Tre sdiction Act 1879, s. 33, enacts that grieved who desires to question the urt of summary jurisdiction, on the t is erroneous in point of law, may court to state a case, and, if the to state a case, may apply to the of Justice for an order requiring the tated. The vestry of St. M. refuel nless paid for doing so, the ashes and produced by furnaces at an hotel in uch furnaces being used for supplying

light and other purposes. Tre the hotel applied to one of the metroce magistrates, who decided that the not trade refuse, and that the restry ve them without extra payment. the vestry an application was made to trate to state a case for the opinion of Court, but he refused to do so spont ds (1) that his decision was final ! , and (2) that no point of law arose Held, that the decision of the magi not final and conclusive, and that the whether the ashes were trade refuser hded upon the construction and interpre

the

be put upon the words of a statute, sni efore a question of law upon which the te must state a case. (Reg. r. J. Brig etropolitan Police Magistrate.)...

fficer of Superannuation allowance to on of vestry as to amount of allowan opolitan vestry has a discretion apier Vict. c. 31, s. 1, to grant or refuse a super ion allowance to a retiring officer, and als etion as to the amount of the allowance limit imposed by the scale in sect. 4. Reg prosecution of Richard Westbrook r. T of St. Pancras.)

wers of-Water-closet. "proper doors a ngs" to-Order of vestry-Notice to outerery of penalties-Jurisdiction of magistrate, estry gave notice in writing to the or ertain house under sect. 81 of the Metropo gement Act 1855 requiring him to furnist -closet which was therein with proper does coverings, and on his neglecting to comp with he was summoned before a magistrate sect. 64 of the Metropolis Manageme dment Act 1862. The magistrate being on that the water-closet was already proce proper doors and coverings, decided that the y had no jurisdiction to order further dors coverings; and that he was not bound by the ion of the vestry, and, on these ground issed the summons. Held, that the ves jurisdiction to make the order, and that strate had only power to inquire whethe order had in fact been made and obere • Vestry of St. James and St. John, Clerks ,apps., v. Feary, resp.)...

MINERALS.

Compensation

als wrongfully abstracted rest.-By a decree made in 1871, the defenda e declared liable in respect of minerals rem hem from under the plaintiff's lands, and wat

alia) an inquiry was directed what quantity of minerals had been so removed by them, and it was ordered that the market price of all such minerals at the pit's mouth should be certified, all just allowances being made for carriage, but none for getting or working. The official referee before whom the inquiry was prosecuted reported that the value of the minerals taken was 90281. 68. All the defendants having died, the suit was continued against their respective representatives for the purposes of the inquiry. On the further consideration, the plaintiffs claimed interest at 5 per cent. on the amount found to be due to them. Held, that the suit could not be treated as an action of trover, as in that case the maxim Actio personalis moritur cum personá would apply. That, treating it (as it must be) as an action for money had and received, the case was not within sect. 29 of 3 & 4 Will. 4, c. 29. That no fiduciary relation existed between the plaintiffs and the defendants upon which the plaintiff's claim could be supported. And that the claim to interest ought to have been adjudicated upon at the trial, and that it was therefore too late to raise the question upon the further consideration. (Phillips v Homfray.)

MORTGAGE.

...

...page 897

Co-owners-Arrest of ship-Master's claim-Priorities-Compulsion of law-Bristol Dock Act 1881 -Harbours, Docks, and Piers Clauses Act 1847.The arrest of a ship in an action in rem for a claim legally due from the owners of the ship, although there be no maritime lien, is a sufficient compul. sion of law to entitle mortgagees of part of the shares in the ship paying off the claim in order to get possession to recover from the owners of the remaining shares the amount so paid. The owner of 44 64th shares in the steamship O. mortgaged them to the plaintiffs. Subsequently the O. was arrested in the Admiralty Court at the suit of her master for disbursements. The mortgagor being insolvent, and the plaintiffs wishing to realise their security, paid the master's claim and the ship was released. The plaintiffs then took possession of the O. on behalf of themselves and the other co-owners, and it was thereupon arranged between the plaintiffs and the co-owners that the O. should be sold on behalf of all parties, and this was eventually done. Whilst the plaintiffs had possession of the O. she was lying in the Bristol Dock, and they paid the necessary dock dues. In the event of the dock dues not being paid, the O. was liable to seizure and sale by the dock authorities under the Bristol Dock Act 1881, and the Harbours, Docks, and Piers Clauses Act 1847. In an action against the co-owners to recover the payments made by the plaintiffs: Held, that, in the circumstances, there was an implied promise in law by the co-owners to pay back the plaintiffs all the money paid by them to release the ship; and that the defendants were also liable to pay their proportion of the dock dues, the payment thereof by the plaintiffs being necessarily made on behalf of all the owners. (The Orchis.)

Costs-Incumbrances-Plaintiff's cost of actionPriority. Where a puisne incumbrancer brought an action against other incumbrancers and the trustees of a will for administration of the estate, on further consideration: Held, that, so far as the administration proceedings were proper, and also for the benefit of the prior mortgagees, the plaintiff was entitled to his costs of such proceedings out of the estate in priority to the prior mortgagees, but must add the rest of his costs to his security. Held also, that the trustees' costs of the action, so far as such costs were costs of administration of which the prior mortgagees had had the benefit, must come out of the fund as between solicitor and client. (Re Barne; Lee v. Barne.)

Incumbrances -Plaintiffs' costs of action Priority-Trustees and mortgagors of harbour rates-Indemnity - Commissioners Clauses Act

407

922

[Index-lxxiii

1847. This was the further consideration of an action brought by a creditor against incumbrancers and the Dartmouth Harbour Commissioners, who were trustees and mortgagors of the tolls and rates raised under their Act of Parliament. A receiver had been appointed and priorities determined, and money paid into court in the course of the action. The Court directed the taxing master in taxing the plaintiffs' costs to distinguish the costs of which the other incumbrancers (except the commissioners) had had the benefit in secur ing the fund in court or in determining the rights of the parties to it, and ordered these costs to be paid to the plaintiffs in priority to all other incumbrancers, the plaintiffs to add the rest of their costs to their security. Held, that by the Commissioners Clauses Act 1847, sect. 60, the commissioners were entitled to be indemnified out of the rates and other moneys coming to the hands of the commissioners by virtue of that and the special Acts for all payments made or liability incurred in respect of any acts done by them, and for all losses, costs, and damages incurred by them in the litigation, and that this provision applied to the funds now in court, and that the fact that the commissioners were in the position of mortgagors did not affect their rights as trustees to reimbursement under this provision. Therefore, they were entitled to their costs as between solicitor and client in priority to the plaintiffs and other incumbrancers. (Batten, Proffitt, and Scott v. The Dartmouth Harbour Commissioners.) page 861 Equitable mortgagees - Fraud-Negligence-Legal estate-Tacking--Priority. Two equitable mortgagees having suffered through the fraud of the mortgagor, the first equitable mortgagees brought an action against the subsequent equitable mortgagees; these latter had obtained possession of the title deeds, and having become aware of the plaintiffs' mortgage, got in the legal estate. Held, that the negligence necessary to postpone the first equitable mortgagee in such a case as the present must be so gross as to render him responsible for the fraud committed on the second mortgagee; Held, that the plaintiffs had not been guilty of such gross negligence as to be postponed to the defendants; Held, that the possession of the title deeds did not confer on the defendants an advantage in respect of which they were entitled to plead that they were purchasers for value without notice; Held also, that the legal estate, which the defendants had got in, did not protect them against the plaintiffs' claim; Held therefore, that the plaintiffs were entitled to priority. (Taylor v. Russell.) 922 Foreclosure action Successive incumbrances Annuitant-Conveyancing and Law of Property Act 1881-Conveyancing Act 1882-Form of order. -In a foreclosure action the plaintiffs were first mortgagees, and also third mortgagees. The defendants were the second incumbrancer, who was a jointress, and several subsequent incumbrancers, whose priorities had not been ascertained. An order was made on the hearing of the action giving the jointress a period of six months within which to redeem. In case she did not redeem, the subsequent incumbrancers were to have one period of three months within which to redeem; but in case the jointress did redeem, the plaintiffs, as third mortgagees, were to have a period of three months within which to redeem, subject to the jointure, and a further period of three months was given to the subsequent incumbrancers within which to redeem. (Smithett v. Hesketh.)... 802

Receiver and manager-Possession. This was an action brought by brewers for foreclosure of a mortgage of a public-house of which the mortgagor was in possession. A receiver and manager had been appointed by order on interlocutory motion in the form given in Truman, Hanbury, and Co. v. Redgrave (45 L. T. Rep. N.S. 605; 18 Ch. Div. 547). The mortgagor continued in occupation of a part of the premises, and was alleged to have acted in a manner which inter

[Oct. 13,1

the sum of 34.5001. The poly the trustees. Nothing was her by way of principal, inte erwise. C. died in the lifetime of tate. The trustees claimed to y moneys. The personal repress [consequently brought an stin redeem the policy and obtain p 際 icy moneys less the amount wh to be due to them from the ea pal, interest, premiums, and othe Held, that the whole transaction transaction, that the policy w urity, and that consequently the titled to redeem the policy, noth press stipulation that, in the events ned, the same should belong to the The Marquis of Northampton 1.

irst mortgage by second-Loss ti and other documents-Indemnity. ortgaged his life interest in certain to the trusts of his marriage sette e policies of insurance on his on he executed a second mortgage d st to the plaintiffs. This mortgag

the policies of insurance. In s
brought by the plaintiffs agai
and H., the legal personal repre
he first mortgagee, to redeem the
and foreclose the mortgagor. Pend
ss of the action it was discovered
rage of 1867 and the policies were
ssession of H., and an inquiry was

the loss of the documents, and
And what indemnity should be give
the loss in case it should be found
hem had been lost. In the me
laintiffs had paid into court the
had been certified to be due to the
under the mortgage of 1867, and fr
s of the action. The chief clerk in
inquiry, found that the mortgage f
policies had been lost, and he
he plaintiffs were entitled to ach
as will equal that which the ist?
The plaintiffs took
may require."
ns to vary this certificate, by wh
hat the whole of the fund in co
ained until further order by way
b them. The insurance compact
ake any arrangement with regard

until claims should be made on the
ld, that the plaintiffs were entitled
indemnity, to be given by the defer-
executrix, the bond to be settled in
case the parties differed, and that
so entitled to have retained in
1001., and no more, to meet sy p
that might be incurred when the
buld become claims. (Caldwell t

Oct. 18, 1890.]

...

second mortgagee by their mis-statement, but that 8951. was not necessarily the true amount to be allowed; that an account should be taken whether, if the property had been properly described, it would have sold for more than 19,9051. (being the purchase money of 20,8001., after deducting the 8951.), and that the first mortgagees should be charged with the amount of loss (if any) which should be certified to have been caused by the mis-statement. (Tomlin v. Luce.) ...page 18 Transfer-Escrow Title-deeds - Negligence-Solicitors-Agents-Cash payment-Set-off-Convey. ancing and Law of Property Act 1881.-An action was brought by the transferor of a mortgage against the transferees, seeking for payment of the money which was the consideration of transfer, or to have his mortgage and other deeds back again. The plaintiff and the defendants employed in the matter of the transfer the same firm of solicitors, who were then in good credit. On the 20th Oct. 1888 the plaintiff executed the transfer, which expressed that the money was paid, and he handed the transfer and the title-deeds to the solicitors, they undertaking either to return them or to pay the money. The plaintiff did not make any inquiry till the 5th Feb. 1889, the solicitors telling him so much notice was required. On the 22nd Feb. the solicitors handed over the deeds and the transfer to the defendants. On the 15th March the solicitors filed their petition in bankruptcy. The defendants never paid the money in cash to the solicitors, but they set off in their books part of a sum owed by them to the defendants. Held, that the defendants ought to have paid the solicitors in cash, and were not entitled to set off a debt due to them from the solicitors; Held, that there had been no negligence on the part of the plaintiff, and that the deed was an escrow until the defendants had paid the money to the solicitors in cssh. (Coupe v. Collyer.)...

...

NEGLIGENCE.

Accident to scholar-Negligence of teacher-Liabi lity of committee of management.-The plaintiff was a scholar in a voluntary school, and the defendant, who was the vicar of the parish, was an ex officio trustee of the school, and one of the committee of management. The plaintiff sought to recover damages for personal injuries inflicted upon her by a black-board falling from an easel and striking her upon the head. It was alleged that the board fell owing to the negligence of one of the teachers. The staff of teachers was appointed by the committee of management, but was not otherwise under its control. Held, that there was no evidence of negligence to go to the jury; but that, if there was, the defendant, as one of the committee of management, was liable for the negligence of the teacher in the school. (Crisp v. Thomas.)

NUISANCE.

Public shows, sports, and exhibitions-Apprehended repetition of nuisance-Quia timet action-Injunction. An action was brought by inhabitants of houses abutting on an open and unbuilt-on area of land situate in the centre of a town, adjoining the Market-place, and known as Market-square, for an injunction to restrain the owner thereof from using, or causing or permitting the same to be used for the purpose of any sports, exhibitions, entertainments, or otherwise whereby a nuisance might be occasioned to the annoyance and injury of the plaintiffs. It appeared that in June 1889 the defendant's agent licensed S. to use Marketsquare for holding a public show for several days, S. paying 61. The show consisted of a large circular roundabout worked by a steam-engine, which engine also worked an organ; a large circular mechanical switchback worked by another steam-engine, which worked a second organ; a shooting gallery; and a boxing booth. Whilst

the show was going on, the plaintiffs complained to the defendant's agent, and a correspondence

927

810

[Index-lxxv

ensued, which resulted in the defendant's agent declining to give an undertaking, and expressing his intention of allowing persons to use Marketsquare for publie shows. Held, that, as the defendant contended that he had the right to do the thing complained of, and had refused to give an undertaking, the inference was that there would be a repetition of the nuisance: and that therefore the plaintiffs were justified in bringing the action, and were entitled to an injunction. (Phillips v. Thomas.) ...page 793 Thistles-Neglect of occupier to cut-Seeds blown on to adjoining land-Damages.-The defendant occupied certain land which had originally been forest land, but had recently been brought into cultivation. As soon as this land was brought into cultivation thistles sprang up all over it. The defendant neglected to cut these thistles, and consequently the seeds were blown in large quantities on to the adjoining land which was occnpied by the plaintiff. The plaintiff having brought an action to recover damages from the defendant for injury done to his land: Held, that the defendant was under no duty towards the plaintiff to cut the thistles, which were the natural growth of the soil, and therefore was not liable for the damage caused to the plaintiff's land. (Giles v. Walker.)

933

658

Proper licence for-Hackney carriage-"Standing or plying for hire "-Customs and Inland Revenue Act 1888.-An omnibus plying in the ordinary way for the conveyance of passengers for payment along a fixed route, comes within the definition of a "hackney carriage in sub-sect. 3 of sect. 4 of the Customs and Inland Revenue Act 1888 as being a carriage "standing or plying for hire," and therefore the Excise licence at 158., as for a hackney carriage," is a sufficient licence for such omnibus. (Hickman, app., v. Birch, resp.)... 113

66

PARENT AND CHILD. Advancement-Presumption-Rebuttal of-Resulting trust - Director's qualification.-A father made his eldest son, who was living near him, and was married, a liberal annual allowance. Being desirous of providing his son with some occupation, he took, in the son's name, 100 shares of 101. each in the A. company, that number of shares being the necessary qualification for a director; also fifty shares of 100l. each in the B. company, ten shares at least" being a director's qualification; and transferred from his own name into that of the son's 500 shares in the C. company, a director's qualification being "at least" 100 shares. The son thereupon became a director of these companies, and received the fees as director, but voluntarily transmitted the dividend warrants on the several shares to the father. Afterwards, at the father's suggestion, the certificates of the shares were handed to him for safe custody, and they were retained by him until his death. The three lots of shares were then found in three envelopes, each indorsed by the father with the number of certificates it contained, two of the envelopes bearing the words "belonging to me." The father by his will settled the bulk of his real and personal estate upon his eldest son for life, with remainder to his children. Held, that the shares were taken in the son's name merely for the purpose of qualifying him as a director; that that being the purpose the presumption of advancement which might otherwise have come under consideration was rebutted: and that the son held the shares as trustee. (Re Gooch; Gooch v. Gooch.)...

... 384