PAYMENT.-Plaintiff's attorney wrote to defendant, who resided at some distance from plaintiff, requiring him to remit the balance of his account with plaintiff, together with 13s. 4d. costs. Defendant remitted a bank bill for the balance of the account only, which the attorney did not return, although he refused to accept it as payment because his costs were not included; but it was held this was evidence of payment for the jury. Martin, B.: Where a debt is paid before action brought, plaintiff cannot recover the costs of his attorney's application.-(Caine v. Coulson, Ex. 97.)

REWARD FOR APPREHENSION OF OFFENDER.-A boy having absconded with defendant's property, defendant offered a reward for such information as should lead to the recovery of the stolen property, and the apprehension and conviction of the thief. Plaintiffs alleging that they had given such information, sued defendant on his promise to reward. Defendant pleaded that plaintiffs had the boy in their custody before the reward was advertised, and that though they knew of this robbery, contrary to their duty, neglected to inform defendant that they had apprehended the boy, by reason whereof defendant was induced to offer the reward. Plaintiffs replied that they were policemen, and that in accordance with their duty in that behalf, they in a reasonable time informed their superintendent of all the circumstances which had come to their knowledge concerning the theft, and that the superintendent, at the request of plaintiffs, within a reasonable time, conveyed this information to defendant, and that it would have been contrary to the duty of plaintiffs, as policemen, if they had themselves given the information to defendant. On demurrer, held that the plea must be taken as a plea of misconduct on the part of plaintiffs, in keeping back the information from defendant till after the offered reward was published, and that the replication was good as taking off that charge of misconduct.-(Neville v. Kelly, 32 L. J., C. P. 118.)

SALE.-Plaintiff having had no previous dealings with the firm, and knowing them only by reputation, applied at the place of business of 'Gandell & Co.' for orders for goods: the firm then consisting of Thomas Gandell only, and being managed by Edward Gandell, a clerk. On plaintiff asking to see Messrs Gandell, Edward Gandell presented himself, and so conducted himself as to lead plaintiff to suppose that he was one of the firm of Gandell & Co., and had authority to order goods on their behalf (which was not the fact). Plaintiff sent goods, according to Edward Gandell's order, to the place of business of Gandell & Co., an invoice being made out, by Edward Gandell's direction, to the name of Edward Gandell & Co.' Edward Gandell, unknown to plaintiff, carried on business with one Todd at another place; and the goods were, within three or four days of their delivery, pledged with defendant, with a power of sale, to secure advances bonâ fide made by him to Gandell & Todd, and he sold them under the power without notice from plaintiff. It was held, there was no contract of sale, inasmuch as plaintiff intended to contract with Gandell & Co., and not with Edward Gandell personally, and Gandell & Co. were not contracting parties; that no property therefore passed, and the plaintiff was entitled to recover the value of the goods from defendant.-(Hardman v. Booth, 32 L. J., Ex. 105.)

SHIP AND SHIPPING.-The law as to the effect of a transfer of a ship, which is in form absolute, but is in reality only intended as a security for an advance, is not altered by 17 & 18 Vict., c. 104, and the provisions of section 66 of that Act do not prevent the owner who has executed a bill of sale absolute in its terms from showing, as before, that it was intended to operate as a security only. Willes, J.: We feel ourselves removed from the necessity of offering any opinion of our own on the subject, because we find an express enactment in the 25 & 26 Vict., c. 63, sec. 3, which appears to dispose of the case. That is a declaratory enactment in the most stringent terms, stating among other things that the intention of the previous Act was not to destroy interests of this description, inter alia, the equitable interests of the mortgagees, who had made

what was really a mortgage, though an absolute transfer on the face of it; and the terms of that section are such as, from the time of its being passed, to preclude us from saying that any other was the intention of the Legislature.— (Ward v. Beck, 32 L. J., C. P. 113.)

WATERCOURSE.-Prosecutor was the owner of an estate which had been purchased by the testator, under whose will he claimed in 1838. It was situate upon a bed of gravel, which was itself imbedded in a basin of clay extending under the estate and under the lands adjoining. Water, which rose through the gravel bed by means of natural springs, was collected in a small pond, and thence overflowing the edge of the clay basin, formed a rivulet which supplied other ponds, and was used by the prosecutor for watering his gardens and horses. Defendants, as Commissioners of Sewers, in the course of making a sewer in April 1855, cut through the two beds of gravel and clay at a short distance from the estate, and the effect of the cutting was to drain the springs in the gravel, and to prevent them from finding their way into the pond, and from supplying the rivulet and the other ponds; and it was held, on the authority of Chasemore v. Richards, that the prosecutor was not at common law entitled to compensation from the Commissioners in respect of the abstraction of the water. By section 50 of 11 & 12 Vict., c. 112, it is provided that where any work done by the Commissioners in pursuance of the provisions of the Act shall'interfere with or prejudicially affect any ancient mill, or any right connected therewith, or other right to the use of water, full compensation shall be made to all persons sustaining damage thereby,' etc. By section 69 it is provided that full compensation shall be made out of the rates, as the Commissioners shall direct, to all persons sustaining damage by reason of the exercise of the powers of the Act. It was held, by Wightman, J., and Mellor, J., that the prosecutor was not entitled to recover compensation under either of these sections; but by Cockburn, C. J., that he was so entitled under section 50, as he had a right to the water after it had risen, and as that right had been interfered with and prejudicially affected.-(R. v. The Metropolitan Board of Works, 32 L. J., Q. B. 105.)

WINDING UP OF COMPANIES.-A company of unlimited liability, registered under 7 & 8 Vict., c. 110, after carrying on business was registered as a limited company under 19 & 20 Vict., c. 47, and was afterwards ordered to be wound up. The Court, affirming an order of one of the Commissioners of Bankruptcy, decided that the order must be carried out under the jurisdiction in bankruptcy, both as to matters before as well as after registration, under the Act of 1856. A call can be made by the Court of Bankruptcy upon the shareholders at the time of re-registration to discharge debts of the company then due, whenever they accrued. Lord Justice Turner: The principal argument on the part of the appellants was, that the company of unlimited liability was wholly distinct from the company of limited liability, and that the creditors of the former company, when registered under the earlier Act, could have no general rights against the new company after registration under the 19 & 20 Vict., c. 47, other than those which were reserved to them by the 116th section, which only reserved a right of action against the company and its members, and did not authorize calls to be made. But, for the reasons which were given when we decided the case of the Plumstead Waterworks Company (2 De Gex., F. & Jo. 20; s.c. 29 Law J. Rep. (N. S.) Chanc. 741), I think that the limited company cannot be distinguished from the unlimited. I think that there was but one company; that it was throughout but one and the same company, though governed by different rules at different times.-(Ex parte Stevenson, in re The Liverpool Tradesman's Loan Co., 32 L. J., Ch. 96.)

WINDING UP OF COMPANIES.-Where, upon the voluntary winding up of a joint-stock company, registered with limited liability under 19 & 20 Vict., c. 47, the liquidators sue a contributory of the company for calls, he may, under section 17 of 21 & 22 Vict., c. 60, plead as set-off a debt due to him from the

company. Wightman, J.: We have been much pressed with that part of the section which says, that when the creditors are satisfied, the liquidators shall proceed to adjust the rights of the contributories amongst themselves. But the 21 & 22 Vict., c. 60, is applicable to all joint-stock companies; and by section 17 of that Act it is expressly enacted, that in fixing the amount payable by any contributory, in pursuance of any of the Joint-Stock Companies Acts, he shall be debited with all debts due from him to the company, including the amount of the call, and shall be credited with all sums due to him on any independent contract or dealing between him and the company, and the balance, after making such debit and credit, shall be deemed the sum due.' Thus far the duties and rights of liquidators are analogous to those of assignees under the Bankruptcy Acts, which allow of mutual account and set-off between a bankrupt and his creditors. There is great difficulty in reconciling the different sections of the Joint-Stock Companies Acts; but, upon the whole, I think the defendant is only liable for the amount of his contribution minus his setoff.—(The Garnett and Mosley Gold Mining Co. of America (Lim.) v. Sutton, 32 L. J., Q. B. 47.)

EXECUTOR.-Executors having retained in their hands large balances arising from the estate without investing them, an inquiry was directed as to the propriety of their conduct, and they were charged with interest at L.4 per cent. upon a portion of such balances. And it was held that, in pursuance of the general principle, the executors could not be allowed the costs occasioned by the inquiry. Kindersley, V. C.: The tendency of my inclination has always been in favour of executors, who are, I think, sometimes hardly treated; but here the plaintiffs have asked the least they have a right to ask under the circumstances, and the executors cannot be allowed their costs. The cases which have been cited establish the general principle, and I am only acting upon that principle. (Colyer v. Colyer, 32 L. J., Ch. 101.)

FRAUDULENT BANKRUPTCY.-A bankrupt had been guilty of acts which amounted to a misdemeanour within section 221 of stat. 24 & 25 Vict., c. 134; and one of the Commissioners under section 159 granted him an order of discharge with a suspension of twelve months. On appeal, the Lords Justices considered that the Commissioner had jurisdiction to direct a prosecution before a Court of Criminal Justice, and that it was not incumbent on him, with or without a jury, to try the case himself; and they discharged the order, and directed a prosecution by the assignees at the next assizes. Subsequently friends of the bankrupt subscribed money in order to provide a dividend, if the order made by the Court should be discharged. Their Lordships discharged their order, and permitted the money to be accepted by the assignees.—(Ex parte Dobson, in re Wilson, 32 L. J., Bank. 1.)

TAXATION.-A solicitor delivered his bill of costs to his client, made out in double columns, one being the amount allowed on taxation, which he refused to accept when tendered. The client then paid the larger sum to obtain his papers; and upon his petition it was held, notwithstanding the payment, that he was entitled to an order to tax the bill, as he had been constrained to pay the larger sum by the refusal of the solicitor to accept what he himself had stated he was legally entitled to.-(Ex parte Tosland, re Letto, 32 L. J., Ch. 100.)

TRUST AND TRUSTEE.-A valuable consideration, and a knowledge of the facts connected with a trust, are essential to the validity of a release which will discharge trustees from liability. A lapse of ten years from the time when the cestui que trust attained twenty-one, held not to bar the cestui que trust_from obtaining relief in equity against a breach of trust. The Master of the Rolls: The plaintiff attained twenty-one on the 15th of March 1851; the bill was filed on the 15th of April 1861, a little more than ten years after; and if that were unexplained, and it were a mere breach of trust, though he knew of it at the time, that would not bar his claim to have the breach of trust set right. The only thing that he has done upon which reliance is placed, is that he wrote

and signed a paper at the request of his father. This is clearly not a release at law; it is not under seal; but it might be equivalent to a release in equity if had it been given for a valuable consideration, and under proper advice. In what manner, then, was it given? The burthen of proving this is upon the defendant; and he must show that it was given under such circumstances as enabled the plaintiff fully to understand the effect and purport of it, and to know and appreciate his position before he gave it.-(Farrant v. Blanchford, 32 L. J., Ch. 107.)

BANKRUPTCY.-A trader absented himself for three or four days from his place of business, and in his absence a bill of exchange was presented for payment, and was dishonoured; and application was also made for payment of other bills. The trader was adjudicated bankrupt, the act of bankruptcy being this absence with intent to delay his creditors." One of the Commissioners in the country annulled the bankruptcy, the alleged bankrupt swearing that his absence was occasioned by an attempt of his to get up evidence of perjury against one of his workmen, and to obtain pecuniary assistance. Pending this dispute as to the adjudication, the trader signed a declaration of insolvency. On appeal, the decision of the Commissioner was affirmed, on the ground that there was not sufficient evidence to support the adjudication; but the Lord Chancellor, under the circumstances, refused to allow the trader his costs, as his declaration of insolvency,' while applying to annul an adjudication, was inconsistent with an honest desire for the equal distribution of his assets.—(Ex parte Barney, in re Horton, 32 L. J., Bank. 41.)

BREACH OF TRUST.-Where a breach of trust has been committed from which a trustee alleges that he has been released, it is incumbent on him to show that the release was given by the cestui que trust deliberately and advisedly, with full knowledge of all the circumstances and of his own rights and claims against the trustee, and without pressure or undue influence. But where a cestui que trust, shortly after attaining twenty-one, pressed for payment of a sum of money to which he was entitled, and four years afterwards accepted from one of his trustees a packet of deeds, which the co-trustee (the father of the cestui que trust) had deposited by way of security on the occasion of a misappropriation by him of the trust fund before the cestui que trust came of age, and at the request of his father signed and sent a release in writing (not under seal) to such trustee, and took no further steps till after his father's death six years later, and ten years after he came of age, when, the security turning out insufficient, he filed a bill to have the deficiency made good by the surviving trustee; it was held by the Lord Ch., reversing the decision of the Master of the Rolls, that all the requisites for constituting a valid release had been complied with, and the cestui que trust must be taken to have had full knowledge of the value of the security, notwithstanding he had never opened the packet of deeds. Westbury, L.-C. The duty of proving an effectual discharge lies on the trustee. When a breach of trust has been committed, from which a trustee alleges that he has been released, it is incumbent upon him to show that such release was given by the cestui que trust deliberately and advisedly, with full knowledge of all the circumstances and of his own rights and claims against the trustee; for it is impossible to allow a trustee, who has incurred personal liability, to deal with his cestui que trust for his own discharge upon any other ground than the obligation of giving the fullest information, and of showing that the cestui que trust was well acquainted with his own legal rights and claims, and gave the release freely and without pressure or undue influence of any description.—(Farrant v. Blanchford, 32 L. J., Ch. 237.)

THE

JOURNAL OF
OF JURISPRUDENCE.

CASE LAW OF THE CURRENT YEAR.

FOR a considerable time prior and down to the commencement of the present year, we have been in use, in the shape of 'Notes in the Inner House,' to discuss each month the more important judgments of the Court during the preceding month, endeavouring to show how far these modified or confirmed the previous decisions on the various points dealt with. It has occurred to us, however, that our review would become more practically useful, if it were made to extend over a longer period, and by consequence over a larger number of decided cases. We propose, therefore, at present to consider, and as far as possible to place, the judgments which have been pronounced by the House of Lords and Court of Session since December last, the date at which the Notes in the Inner House ceased. We do not propose to consider the cases chronologically, but as far as possible to group them according to their legal topics.

I. Probably no case has this year attracted more attention, alike from the legal profession and the public, than the petition, A. v. B., 16 Jan. 1863. The question raised was as to the custody of the persons of two pupil children, boys of nine years and ten years old respectively, whose father was dead, and whose mother had married a second husband. Since their father's death the children had lived in family with their mother, both before and after her second marriage. In consequence, however, of certain proceedings taken by the mother against her second husband, the paternal uncles of the

VOL. VII. NO. LXXX.-AUGUST 1863.

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