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147

Lunacy.

DIGEST.

Market. 148

the management of the prison of the receiving authority.

The council of the borough of B. entered into a contract with the justices of the county of S., under 28 4 29 Vict. c. 12G, a. 31, to receive and maintain at the county gaol at L. all the prisoners maintainable by the borough of B.

A prisoner maintainable by the borough of B. was sentenced to death, and while lying at the county prison under sentence of death became insane.

Held, that the justices of the county of S. were the justices who should make inquiry as to the settlement of the prisoner under 3 & 4 Yict. c. 54, s. 2, and not the justices of the borough of B., notwithstanding section 66 of 28 & 29 Vict. c. 126, by which the county gaol of L. was constructively the gaol of the borough of B.—The Queen v. The Visiting Justices ef Lewes Prison, Ex.ch. 13—L. R. 10 Q. B. 579.

2. Lands Clauses Consolidation Act, 1845, ««. 9, 69 —Purchase-moneyPayment into court.—A railway company agreed with the committee to purchase part of a lunatic's land. The purchase-money was ascertained under section 9 of the Lands Clauses Consolidation Act, but had not been paid into court.

A petition was presented by the committee and next of kin of the lunatic, praying for confirmation of the master's report affirming the sale, for liberty to the committee to convey, that the purchase-money should be invested in consols, and be carried to " the account of the committee and the company," and for payment of the dividends to the committee.

The Lords Justices directed the petition to be entitled in the Lands Clauses Act, and in the Chancery Division of the High Court as well as in Lunacy, and that the purchase-money, when invested, should te carried to "the account of the lunatic and of the company." Subject to these amendments their lordships made the order as prayed, holding that actual payment in, under, and to the account directed by, the 69th section, was not essential to the company's title.—lie Milnes, L.jj. 98—L. E. 1 Ch. D. 28; 34 L. T. 46.

3. Lands Clauses Consolidation Act, 1845 — Se-investment of purchase-money.—The purchasemoney of a lunatic's land taken by a public body under the Lauds Clauses Act was, under the circumstances, ordered to be invested in guaranteed railway stock; but the name of the public body was directed to be omitted from the title of the account, an investment of this nature being treated as equivalent to a re-investment in land.—In re Buckingham (a Person »f Unsound Mind), L.jj.—L. K. 2 Ch. D. 690.

4. Lunatic tenant in tailPayment out of court of fund representing proceeds of sale of real estate sold under Act of ParliamentDisentailing deed.—A disentailing deed required to be executed before payment out of court of a*fund representing the proceeds of sale of a settled estate directed to be sold by a private Act of Parliament.—In re Reynolds, L.jj. 991.

5. Lunatic tenant in tail subject to chargeMarnier of raising chargeEstate tail and remaindermen iarred only so far as necessaryMortgage for term of yearsfines and Recoveries Act (3 & 4 Will. 4, e. 71), 8. 21.—When a lunatic is tenant in tail of an estate subject to a charge for portions which it is requisite to raise, the estate tail and the subsequent remainders will be barred only so far as is necessary for that purpose. A mortgage for a term of years without power of sale authorized accordingly.—In re Pares, L.jj. 619—L. E. 2 Ch. D. 61.

6. Lunatic trustee Re-assignment of mortgage premisesNo notice of trustCosts.—A petition was presented by the new trustees of a settlement and

the committee of a lunatic's estate that such trustees might be appointed to re-assign to a mortgagor certain premises which had been conveyed to the former trustees of the settlement, of whom the lunatic was the survivor, as security for some of the trust funds. The mortgagor had no notice that the moneys advanced to him were trust moneys.

Held, that the costs of the application must be borne by the trust estate.—In re W. E. Jones (a Lunatic), L.jj. 377—L. E. 2 Ch. D. 70; 34 L. T. 470.

7. Person of unsound mind —MaintenanceChancery jurisdiction.—The High Court, as representing the Court of Chancery, has jurisdiction, notwithstanding the provisions of the Lunacy Eegulation Act, 1862, to make orders relative to the past and future maintenance and support of persons of unsound mind, not so found by inquisition, when the property is small and is under the control of the court.

In an action by a person of unsound mind, not so found, for the execution of trusts under which the plaintiff was entitled for life to about £180 a year, the fund being transferred into court, and there being no dispute as to the custody of the plaintiff's person, it was referered to chambers to appoint a proper person to act in the nature of a guardian of the person and estate of the plaintiff, and inquiries were directed as to allowances for past maintenance and with respect to future maintenance.— Vane v. Vane, Ch. Dit. M.b. 602—L. E. 2 Ch. D. 124; 45 L. J. Ch. 381 ; 34 L. T. 613.

8. Rent-charge payable to lunaticSale o f premita subject thereto under Lands Clauses ActsGovernment annuity.—A board of works purchased, under the compulsory powers contained in the Lands Clauses Acts, certain freehold premises subject to a rent-charge in favour of a lunatic, and offered to purchase a Government annuity of the same yearly amount for the life of the lunatic on obtaining a release of the premises from the rent-charge by the committee. On a petition presented by the committee,

The court sanctioned the arrangement.—In re Brewer {a Lunatic), L.jj. 465—L. E. 1 Ch. D. 409; 34 L. T. 466.

MACHINERY, DEFECT in.—See Master And Servant, 7.

MAINTENANCE.— See Husband And "wife, 9, 10; Lunacy, 7; "will, 79—82.

MAJORITY of CREDITOES, POWEE of.—See BankRuptcy, 23; Company, 1, 7.

MALICIOUS INJUEY to CATTLE.—See Criminal Law, 11.

MANAGEMENT of COMPANY.—See Banker, 1; Company, 22, 23.

MANDAMUS.—See Fishery, 3; Justice Of Peace, 6; Licensed House, 7, 8.

MANDATOEY INJUNCTION.—See' Building CoveNant, 3.

MANOR—See Copyholds; Fishery, 1; Lands Clauses Consolidation Act, 3.

MANSLAUGHTER.—See Criminal Law, 12, 13.

MANUFACTUEEE'S LIABILITY.—See Neolioence, 2.

MARKET :—

1. Obstruction of thoroughfaresCaravan off the street.—An auction caravan in a market-place, three feet from a public street, is not an obstruction in a thoroughfare under 10 & 11 Vict. c. 89, s. 28, though persons stopping to listen cause an obstruction.—Bo" v. Ward, a.n.—33 L.T. 170.

149 Market.

DIGEST.

Master and Servant. 150

2. Sale in market overtConversionStolen goods Public salesmaster.—A ealesmaster who, in market overt, publicly sells and afterwards innocently delivers a stolen beast is responsible in trover to the true owner for the value of the beast.

The protection attendant on a sale in market overt extends to modern markets established under powers conferred by Act of Parliament.—Oanly v. Ledwidge, Q.b. (Ir.)—I. K. 10 C. L. 33.

3. Swansea Municipal Corporation Act, 1863 (26 & 27 Vict. c. 13), s. 38—" Own dwelling-place or shop" Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), 8. 13.—The appellant was convicted under a provision in a local Act in terms similar to those of section 13 of the Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), prohibiting selling or exposing for sale, within the limits of a market, articles subject to toll, except in one's own dwelling-place or shop. The appellant exposed for sale 200 sheep in a large yard adjoining his dwelling-house and within the limits. There was an entrance to the yard from the street through double doors. The appellant's dwellinghouse was supported by pillars over part of the yard, and there were stairs from it down into the yard.

Held, that the yard was not part of the dwellingplace or shop of the appellant for the purposes of the Act.—Mcffole v. Davies, Q.n.Div. 343—L. fi. 1 Q. B. D. 59; 45 L. J. M. C. 30; 33 L. T. 502.

See also Poor Rate, 5.

MARRIAGE, DISSOLUTION of.—See Divorce.

MARRIAGE, NULLITY of.—See Husband And "wife, 11—13.

MARRIED WOMAN.—See Husband And Wife; PartiTion, 3.

MASTER and SERVANT :—
Dismissal

1. Housekeeper of hotel.—The housekeeper of a large hotel is not a menial servant, and cannot be dismissed on a month's notice in the absence of express agreement.—Lawler v. Linden, Cp. (Ir.)—I. R. 10 C. L. 188.

Negligence

2. Common employmentLicenseeRailway company, duty of, towards customer assisting railway servants in delivering his goods.—The plaintiff sent a heifer (which was put into a horse-box) by defendants' railway to their P. Station. On the arrival of the

[ train at the station, there being only two porters available to shunt the horse-box to the siding, from which alone the heifer could be delivered to the plaintiff, in order to save delay he assisted in shunting the horse-box, and while he was so assisting he was run against and injured through a train being. negligently allowed by the defendants' servants to come out of the siding. There was evidence that the station-master knew that the plaintiff was assisting in the shunting, and assented to his doing so.

Held, affirming the decision of the Queen's Bench, that the plaintiff was not a mere volunteer assisting the defendants' servants, but was on the defendants' premises, with their consent, for the purpose of expediting the delivery of his own goods; and the defendants were therefore liable to him for the negligence of their servants, according to the principle of Holmes v. North-Eastern Railway Company, L. R. 4 Ex. 254, 6 Ex. 123.— Wright v. The London and North-Western Railway Company, Apr.—L. R. 1 ■U. B. D. 252; 45 L. J. Q. B. 570.

3. Common employmentRailway company.—The general traffic manager of a railway company and a "miles-mun" in their employ are fellow-servants,

so that the company are not responsible for the death of the latter through the negligence of the former.— Conway v. The Belfast and Northern Counties Railway Company, c.p. (Ir.)—I. R. 9 C. L. 498.

4. Common employmentFellow-servant.—In an action by the plaintiff, a servant in the employ of the defendants, for injuries sustained by him through the fall of some gates while he was at work on the defendants' premises, the following facts were proved: —The gates were built in a framawork, and had for some time previous to the accident been out of repair. If closed they were unsafe, but if left open and wedged up they were safe. The attention of the defendants' manager of the works had, some time before the accident, been called to the unsafe state of the gates, and he had promised to have then seen to; and it was shown that an order had, in fact, been given to make an iron bar to go across the gates, but this was not carried out. On the day of the accident the plaintiff passed through tho gates on his way to breakfast, at which time they were open and wedged up. On his return one gate was open, the other shut. It was not proved how this happened. The plaintiff attributed it to the wind; another witness thought somebody must have shut it. While the plaintiff was at work the gates fell upon him, and caused him the injuries for which he now sued.

Held, that the plaintiff was not entitled to recover; for either some fellow-workman of the plaintiff's improperly moved the gates, or the wind did so, in which case it was the duty of the plaintiff's fellow-workman to replace them, and that therefore the negligence was, in either case, the negligence of a fellow-workman; or, assuming that it was negligence in the manager in not seeing to the repair of the gates, it was still the negligence of a fellow-workman, for which, inasmuch as the plaintiff had failed to show that the defendants had undertaken personally to superintend the works, or had omitted to select competent persons to do so, the defendants were not liable.—Allen v. New Oas Company, Ex.div.—L. R. 1 Ex. D. 251; 45 L. J. Ex. 668; 34 L. T. 541.

5. Common employmentRailway company.—The defendants, a railway company, employed a contractor to unload their coal tracks at shoots on sidings constructed for the purpose. The contractor employed his own labourers, among whom was the plaintiff, whom he engaged and paid, and over whom he had entire control. The plaintiff, while engaged in the work, was injured by the negligent shunting of an engine managed by the servants of the defendants, which was bringing coal trucks on to the sidings to the shoots.

Held, that there was no such common employment between the plaintiff and the shunter as would disentitle the former from bringing an action against the defendants for the negligence of their servants.— Turner v. The Great Eastern Railway Company, C.p. —33 L. T. 431. ■ .

6. Common employment.—A. was employed by B. to attend to a particular part of his business, but was in the habit of passing through a part of B.'s premises where other workmen of B. were engaged, in order to reach B.'s office; in so passing he was injured through the negligence of such other workmen in their branch of the business.

Held, that B. was not liable to A. for such negligence of his workmen.

Per Archibald, J.—The principle of the master's exemption is that the servant in return for his wages tacitly undertakes to bear all ordinary risks of his employment, of which the risk from negligence of fellow-servants is one.—Lovell v. Howell, C.p.div. 672 —L. R. 1 C. P. D. 161; 34 L. T. 183. .

I

151 Master and Servant. DIGEST. Master and Servant, 152

7. Injuries from defective machineryDuty of master to examine machintrij.—A chain broke partly from wear and partly from bad welding and inj ured the servant using it. His master had not had it examined or tested, although there are well-known methods for doing so.

Ileld, that the master was liable for the injury caused to the servant.—Murphy v. Phillips, Ex.Sit. 647.

8. Injury to servant from the bite of a dogRisk incidental to service.—The plaintiff was employed by the defendant as a dressmaker. It was no part of her duty to go down into the kitchen, but on one occasion she went there, nt tho request of the defendant, to fetch something up. As she was leaving the kitchen a savage dog, which was generally tied up, rushed from under the table and bit her leg. Plaintiff was aware that a dog of this kind was kept on the premises.

The county court judge at tho trial nonsuited the plaintiff, on the ground that, as the plaintiff was a servant, and knew the disposition of the dog, no action was maintainable.

Held, that the nonsuit was wrong, inasmuch as the risk was not incidental to the service, and that there was evidence to go to the jury of the liability of the defendant for the injury sustained by the plaintiff.— Mansfield v. Baddeley, Ait. From I.nf.cts.—34 L. T. 696.

Priority Of Contract

9. Negligence of servantSub-contractor Conversion. — By agreement between the Smithfield Club and the defendants, who were proprietors of a building and premises at Islington called the Agricultural Hall, the club were to have the exclusive use of the hall during the period of their annual show of stock, &c, the defendants providing and paying a sufficient staff (who were to be under the Bole control of the secretary and stewards of the club), to receive, take care of, and re-deliver the stock, &c, exhibited, and also paying the club £1,000; in consideration of which the defendants were to receive certain fees or admission money from the visitors. The stock and articles to be exhibited were received at the gate of the defendants' premises by one Sharman (upon orders signed by the secretary of the Smithfield Club), who contracted with the defendants for a lump sum, amongst other things, to receive them and to redeliver them at the end of the show upon like orders, the defendants in no way interfering. One Stilgoe, who exhibited a pen of throe sheep at the show in 1873, sold them to the plaintiff, and upon the plaintiff's drover producing an order for their removal signed by Stilgoe, Sharman or one of his men delivered him by mistake sheep from auother pen. These the plaintiff rejected, and he brought thi3 action against the defendants for converting his sheep.

Held, as reported 34 L. T. 59, by Grove and Archibald, JJ. (Lord Coleridge, C.J., doubting), that the defendants were not responsible under the circumstances for the acts or defaults of Sharman or his men.

Affirmed on appeal—the Court of Appeal holding that, as between the plaintiff and the defendants, there was no privity of contract, and no duty on the part of the latter to re-deliver the stock, &c, at the close of the show.— Goslin v. The Agricultural Hall Company, Afp.—L. R. 1 C. P. D. 452; 45 L. J. C. P. 318.

10. Negligence of servantLiability of proprietor of horse marl—Injury to spectator by horse on sale.— In an action by the plaintiff for injuries sustained by the kicK of a horse while the plaintiff was, by the defendant's invitation, attending a sale in the defendant's yard, which was used for tho sale of horses by auction, the only evidence to churgo tho defendant was as follows: —

The plaintiff was walking up the yard behind a row of spectators who were watching a horse then on sale. The horse was being led with a halter by a servant of the defendant's down a lane formed by the line of spectators on one side, and a blank wall on the other, there being no barrier between the spectators and the horse, and when the horse was about ten yards from the plaintiff (the crowd of spectators then being between them) another servant of the defendant's, standing on the wall side of the lane, suddenly whipped the horse to make him trot and show his paces, the consequence being that the horse swerved into and through the crowd, who made way for him, and lashing out, kicked the plaintiff. No evidence beyond this was given to the nature of the blow, of the character of the horse, or of the manner in which he was led, nor was any evidence given to show that it was usual, in the case of horse sales of this description, to erect a barrier between the horses and the spectators.

Held (per Kelly, C.B. and Huddleston, B., Pollock, B., diss.), that there was evidence of negligence on the part of the defendant's servants which should have been submitted to the jury.—Abbott v. Freeman, Ex.div.--34 L. T. 544.

11. Negligence of servantMaster's liability.—X herd borrowed from his master a horse and cart to drive to a neighbouring town on business of his own; at his own proposal, and with his master's assent, he brought back some meat for his master; by his negligent driving he injured the plaintiff.

Held, that, as a matter of law, upon the evidence the master was not liable.—Cormack v. Digby, Ex. (It.) —I. R. 9 C. L. 557.

"wages

12. Jurisdiction of magistrate.—Tho plaintiff.-, journeymen painters, sued their former employer in a county court for wages claimed upon a concluded contract of service. The defendant showed that a magistrate had on the merits heard and dismissed summonses for the same wages taken out under the Masters and Servants Act, 1SG7. The county court judge held to bo right in refusing on that ground to entertain the plaintiffs' claim.—Millett v. Coleman, Dawson v. Coleman, 0..11.—44 L. J. Q. B. 194; 33 L. T. 204.

Weekly Hiring

13. Forfeiture on the ground of absenceClaim for wages due—Employers and Workmen Act, 1875 (38 £' 39 Vict. c. 90), s. 4.—Plaintiff, a factory winder, was paid every Saturday for the number of sets she had wound off during the week ending on the preceding Wednesday; one of the rules of the defendants' factory, in which she worked, was that fourteen days' notice in writing was required previous to leaving employment, such notice to be given on a Thursday; and all persons leaving without notice would forfeit the whole of the wages to which they would otherwise have been entitled, and also render themselves liable to be proceeded against according to law.

The plaintiff earned 3s. 7d. on the first two days of one week of her employment, was absent with leave on the Saturday, did not return, and wholly left the defendant's service, without leave or notice, on Monday. In an action for 3s. 7d. earned, the county court judge held that the plaintiffs was a weekly hiring, and that, although the defendant's damage by reason of plaintiff's absence was only 3s., tho plaintiff could not recover anything under section 11 of the Employers and Workmen Act, 1875.

Held, upon appeal that, notwithstanding the fortnight's notice required, the facts justified the finding that the service was weekly; that the plaintiff had no claim for wages or other sum due for work done; and that the county court judge was right.—Oregson v. Watson, App. I'uom Inf.cts.—34 L. T. 143.

DIGEST. Mining. 154

153 Master and Servant.

14. Leaving service without week's notice.—Plaintiff, a painter, was hired by the defendant, by the week, his wages to be 7d. per hour, payable every Saturday at noon. The full week consisted of fifty-four and a half hours. Overtime was paid for at the same rate. A week's notice from either party was required. Plaintiff left the service at noon on Friday before the week was up, and without giving any notice, having worked, including overtime, since the previous Friday, fifty-seven hours.

Held, that the plaintiff was not entitled to recover his wages for the current week of his leaving service. —Saunders v. Whittle, Ait. From Inf.cts. 406—33 L. T. 816.

15. Leaving service without noticeEmployers and workmenJurisdiction of magistrates—" Dispute"— 38 & 39 Yict. c. 90, ss. 3, 4.—Proceedings were taken under section 4 of the Employers and "Workmen Act, 1875, before magistrates to recover £5 damages occasioned by a workman through his absenting himself from work without giving notice of his intention to leave, he being a servant at weekly wages. It was objected that the magistrates had no jurisdiction to try the case, on the ground that there was no " dispute" within the meaning of the Act, the particulars disclosing only a breach of contract for which proceedings should have been taken in a county court.

Held, on appeal, that there was a "dispute" within the meaning of the Act, and that the magistrates had jurisdiction. — Clemson v. Hubbard, Afp. From Inf.cts. 312—45 L.J. M. p. 69; 33 L. T. 816.

MAYPOLE.—See Custom, 2.

MEDICAL AID, NEGLECT to PROVIDE. — See Criminal Law, 12; Husisand And Wife, 9.

MERCANTILE CONTRACT.—See Contract, 11.

MERCANTILE USAGE.—See Foreign Loan.

METROPOLIS MANAGEMENT ACTS:—

1. PavingNew street—18 <fc 19 Vict. c. 120, ss. 105, 250—25 <fe 26 Viet. c. 102, ss. 77, 112—"Where one side only of a new street is paved, the Metropolis Management Acts do not authorize the whole of tho expenses being charged upon the owners of the houses on that side.

Decision of the Queen's Bench Division. 24 W. R. 304, affirmed.—The Vestry of Mile End Old Town v. Tlie Guardians of the Poor of Whitechapel Union, App. 719.

2. PavingNew streetDiscretion of vestry as to Acts—18 & Vict. c. 120, ss. 98, 105, and 25 & 26 Vict. c. 102, ss. 77, 112.—By 18 & 19 Vict. c. 120, s. 98, a vestry have power to pave or repair all streets within a parish. By section 105 of the same Act, and 25 & 26 Vict. c. 102, s. 77, in the case of "new streets" which are paved by a vestry, the expenses are to be borne by the owners of houses and laud adjoining such "new street." An old highway in the parish of P. had been kept in repair for forty years by rates raised from the ratepayers at large. At the time of the passing of the Metropolis Local Management Act, 1855, on a portion of the south side of the highway there was an irregular row of houses and a good footpath, while on the other side there was no regular footpath and but two cottages. Since 1855 these two cottages wero pulled down, and new houses were gradually built along the north side. In 1874, when the line of new houses were approaching completion, the vestry, in pursuance of their powers, paved the footpath on that side, and charged the expenses to the general distinct rates.

Held, that they had no power to do so, inasmuch as tho street in question was a " new street" within 18 &

19 Vict. c. 120, s. 105, and consequently the owners of property adjoining the street were bound to pay the expenses incurred in paving.—Dryden v. Churchwardens and Overseers of Putney, Ex.div.—L. 3 1 Ex. D. 223; 34 L. T. 69.

3. Paving—New street—18 & 19 Vict. c. 120, s. 105 —25 & 26 Vict. c. 102, s. 77—" Houses forming street "—" Bounding or abutting on street."—In the Metropolis Management Acts, 1855 (18 & 19 Vict. c. 120), s. 105, and 1862 (25 & 26 Vict. c. 102), s. 77, the expressions " forming" and "bounding or abutting on" a street are not confined to houses immediately fronting a street.

The appellants were owners of a school situated behind houses forming the frontage of a new street, and approached from the said street by a passage, also the property of the appeUants, inclosed and shut off from the street by gates.

Held, that the cost of paving the street was rightly apportioned on them and the owners of the houses fronting the street, according to the assessment of the respective properties to the parochial rates.—The School Board for London, Appellants, v. The Vestry of the Parish of St. Mary, Islington, Respondents, a.E.mv. 137—L. R. 1 Q. B. D. 65; 45 L. J. M. C. 1; 33 L. T. 504.

4. Paving—New street—18 & 19 Vict. c. 120, s. 105—25 & 26 Vict. c. 102, s. 77.—The apportionment of the expenses of paving new streets, under 18 & 19 Vict. c. 120, s. 105, and 25 & 26 Vict. c. 102, s. 77, by a vestry or district board is in the absolute discretion of such vestry or district board, and not subject to any appeal or review whatever.—Nisbet, Appellant, v. The Board of JPor/.-s of the Greenwich District, Respondents, Q.b. 223—44 L. J. M. C. 119; 32 L. T. 762. ,'

See also Lands Clauses Consolidation Act, 1845, 4, MILITARY COURT of INQUIRY.—See Practice, 229. MINERAL WATERS.—See Trade-mark, 3.

MINING :—

1. MiningGrant of land with reservation of right to mine on payment of damages for injuries to buildingsLicence coupled with corresponding obligationimplied obligation.—W. S., the owner in fee of an estate consisting of two pieces of laud, (A.) and (B.), granted the land (A.) to the defendants' predecessors in title, reserving the right to take the subjacent minerals, paying compensation for damage caused by his operations. The conveyance contained covenants by the grantees to erect mills, &c, on (A.), and by W. S. to pay compensation ior damage caused by his operations under (A).

W. S.'s estate became vested by assignment in the plaintiffs, who worked mines under both (A.) aud (B.), thereby causing damage to the mills, &c, on (A.).

Held, that the plaintiffs were entitled to recover damages from the defendants in respect of the injury done to the mills, &c, by the workings under both (A.) and (B.)—as regards the workings under (A.) on the ground that the defendants, having exercised the licence to win minerals, which was coupled with a corresponding obligation to pay for damages caused by the operations, must perform that obligation; and as regards the working under (B.) on the ground that W. S., having granted the land (A.) with the stipulation that the grantees should build the mills, &c, oa it, by implication took upon himself the obligation of so using the adjacent land that tho mills, jfco., to be built should not be injured by operations under it.— Aspden v. Seddon and another, Preston and others ». Seddon and another, Ex.div. 828—34 L. T. 906.

155

Mining.

DIGEST.

Mortgage. 156

2. Trespass to minesBargain and sale of Vie coal under certain landVoid as a bargain and sale for

Kant of enrolmentOperative as a leave or licence till ell the coal is gottenFeoffmentPresumption of hvery of seisinTenancy at willPossessionWhat mounts to in case of minesStatute of Limitations (S & 4 Will. 4, c. 27), ss. 2, 3, 7— Title under.—Low Moor Company v. Stanley Coal Company, App.—34 1. T. 186.

See also Copyholds, 2; Landlord And Tenant, 18 Railway Company, 28; Victobia, Law Of, 1.

MISCONDUCT, PROMISE not to EXPOSE.—See ConTract, 'J.

Mjsbkmeanour.— See Bankruptcy, 78.

MISREPRESENTATION.—See Company, 30—32.

MEJMKE.—See Arbitration, 4; Bill Op Sale, 3; ConTract, 25; Landlord And Tenant, 19; Settlement, 31.

MOORINGS.—See Poor Rate, 6.

MORTGAGE :—

Building Society

1. Advanced membersBedemption of securities.A building society advanced to certain members the amount of their shares, taking mortgages to secure the 3s»i»8 advanced, with premiums and interest. Each mortgage deed contained a covenant by the member to pay, at the times and in manner prescribed by the rules for the time being applicable thereto respectively, the sum payable periodically by way of subscription or otherwise in respect of the shares until (1) the shares, with interest, should be realized and paid, and (ft) the premium, with interest, should be paid, and thai in the meantime (except where varied by the deed) the rules for the time being of the society should, in respect of the same shares, be observed by the member. The proviso for redemption was on due realization and payment of the said shares, premiums, and interest according to the covenant.

Afterwards new rules were adopted by the society which subjected the equity of redemption of advanced Members to certain additional payments towards autttbig the society's losses; and one of the new rules ll) declared that, so far as the rules of law and equity ■would permit, those rules should apply to all the members as well present as future, and to all its transactions as well past as future.

Held, that members advanced prior to the adoption ef the new rules were entitled to redeem their securities on payment of those sums which they were liable to pay according to the rules existing at the date of their advances.

That the covenant to make certain payments and in tho meantime to observe the rules did not involve a liability to further payments imposed by subsequent rules.

That rule I exempted from the application of the new rules existing members whose contracts with the society would, by the new rules, be substantially varied.—In re The Norwich and Norfolk Provident Permanent Building Society, Ex parte Smith, Ch.div. v.c.ii. 103—L. R. 1 Ch. L. 481; 45 L. J. Ch. 143.

. 2. Advance to member secured by mortgageBepayment by fixed instalments composed of principal and interestPower of sale to recover arrearsSale ef mortgaged premises in Landed Estates Court by puisne incumbrancerAnticipated paymentBate of discountSociety's rules and mortgage deed.In re Olfonohue's Estate, Ch.app. (Ir.)—I. R. 10 Eq. 221.

Consolidation

3. Notice.—A. executed a first mortgage of Whiteacre in 1868, and subsequent mortgages to X., Y., and

Z., in 1869 and 1870. In June, 1872, A. mortgaged
Blackacre to B., who had notice of the charges of X.,
Y., and Z., upon Whiteacre, and in July, 1872, the first
mortgage upon Whiteacre was transferred to B.

Held, that B. was not entitled to consolidate his mortgage debts against X., Y., and Z., of whose charges he had notice when he advanced his money upon Blackacre.

A mortgagee is not entitled to consolidate against third parties of whose charges he had notice when one of his securities was created.—Baker v. Gray, Chjmv. V.ch. 171—L. R. 1 Ch. D. 491; 45 L. J. Ch. 165; 33 L. T. 347.

Equitable Mortgage

4. Equitable assignmentPriorityNotice to trusteeNegligence.—The assignee in insolvency of a person entitled to a reversionary fund vested in trustees, one of whom at the time of the insolvency had notice of a prior assignment, is affected with notice of the assignment, so that if he delays making inquiry until, through changes in the body of trustees, none remain who have notice of the assignment, want of actual notice and circumstances of subsequent diligence on his part will not entitle him to the fund as against the prior assignee.

A., being entitled to a reversionary fund under a will, in 1844 assigned.it for value to C, who gave notice in writing of the.assignment to the then sole trustee of the will. In 184S C. assigned the reversion to L., who gave notice of his assignment to H. and R., two of the then trustees, but not to the remaining trustee, B. In 1852 A. became insolvent. The official assignee in whom his property vested made no inquiry of either H. or R. respecting the charges on the fund, and was not aware of the assignment. The survivor of H. and R. died in 1870. The fund being administered by the court, and having become payable, in 1874 an order was made upon an affidavit by B. that he had no notice of any charge except the insolvency, and in the absence of L., who had no notice of the proceedings directing payment to the official assignee.

Held, that the original priorities had not been varied, t and that the fund belonged to L.—Bird v. Blyth, Bird v. Bird, Ch.div. V.ch. 356.

5. Locke King's Act (17 & 18 Vict. c. 113)—Equitable mortgage by depositAbsence of memorandum.— An equitable mortgage by deposit is not taken out of the operation of Locke King's Act because it is unaccompanied by a memorandum.—Davis v. Bams, Ch.div. V.ch. 962.

6. Statute of Limitations (3 * 4 Will. 4, c. 27), ». 42.—Land subject to an equitable mortgage was taken by a corporation, and the purchase-money paid into court under the Lands Clauses Consolidation Act. Upon a petition by the mortgagee for payment out of his principal and arrears of interest for a period exceeding six years,

Held, that a petition is analogous to a "suit" within section 42 of 3 & 4 Will. 4, c. 27, and that the mortgagee was entitled to payment out of the principal and six years' arrears of interest only.—/" re Stead's Settlement Trusts, Ch.div. V.c.m. 698—L. R. 2 Ch. D. 713; 45 L. J. Ch. 634.

Forcible Entry

7. 15 Bic. 2, c. 2.—L. became mortgagee iu fee of certain premises, of which it appeared he did not at once take actual possession. The mortgagor, whose possession had not been interfered with, made an agreement with T. & W. to allow them (at a rent) the use of these premises, aud for some little time T. & vT. did have the use of them, and deposited goods there. On one morning, at an early hour, L., without notice to any one, went, accompanied by a carpenter ana another man, and, by taking off the lock of the outer

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