NOTICE TO SOLICITORS. DONATIO MORTIS CAUSÂ. MANDAMUS. Prerogative writ-Costs-Jurisdiction of Court to order payment of costs by or to the Crown MORTGAGE. With the view of insuring the greatest possible accuracy and Gift of cheque drawn by deceased-Overdrawn account Power of sale-Chose in action-Shares in company-Convey- PATENT. Threats—Injunction-Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57), 8. 32 POWER. Execution-General power-Married woman-Appointment by will-Administrator with the will annexed-Right to receive fund C. A. 47 Buck'ey J. 50 C. A. 48 C. A. 48 HISCOE, In re. HISCOE V. WAITE JACOBS r. MORRIS . Kekewich J. 49 . C. A. PRESCRIPTION. 51 Lost grant, Presumption of-Inclosure Act-Award-Restriction of pasturage on roads to sheep-Presumption of leg ıl origin to support long user. PRINCIPAL AND AGENT. 48 Power of attorney—Construction—General words—Eju dem generis -Borrowing-Excess of authority-Money had and received. RAILWAY. Adjoining owners-Private branch railways-Private sidings- SETTLED LAND. 52 Capital money-Improvements-Income or capital-Leaseholds held on trust to pay rents and observe covenants and subject thereto for tenant for life-Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 26-Settled Land Act, 1890 (53 & 54 Vict. c. 69), 8. 15 PAGE WATERCOURSE. Artificial stream-Riparian owner-Right to flow of water. Practice-Annuity-Interest on arrears not allowed 49 46 48 46 50 Collicott v. South Staffordshire Mines Drainage Commissioners. Appeal C. A. from Kekewich J. Allowed. Wright v. Glyn. Appeal from Grantham J. Cur. adv. vult. THURSDAY, March 6. Leeds Forge Company, Limited v. Deighton's Patent Flue and Tube COURT II. FRIDAY, February 28. In ́re Richardson. Ex parte the Trustee. Appeal from Wright J. Allowed. In re Trade Marks "Vasogen" and "Vaseline.” SATURDAY, March 1. Appeal from COURT OF APPEAL. Feb. 17. LANCASHIRE BRICK AND TERRA COTTA COMPANY, LIMITED v. THE COURT (Collins M.R., Romer L.J. and Mathew L.J.) reversed the decision of the Court below on the ground that sect. 76 of the Railways Clauses Consolidation Act, 1845, applies to the user of the railway by the owners of branch railways with their own engines and carriages, and does not entitle an adjoining owner, who makes a siding, to demand communication with the railway for the purpose of establishing Deverges v. Sandeman, Clarke & Co. Appeal from Farwell J. Dis- a claim to facilities for his traffic. missed. In re National Company for Distribution of Electricity by Secondary Generators, Limited. Appeal from Wright J. Adjourned for a fortnight. Solicitors for applicants: Neish, Howell & Macfarlane, for B. T. Westwell, Accrington. Solicitors for defendants: Woodcock, Ryland & Parker, for C. Moorhouse, Manchester. A. M. In NEAVERSON v. PETERBOROUGH RURAL DISTRICT COUNCIL. Prescription Lost grant, Presumption of Inclosure Act Award--Restriction of pasturage on roads to sheep—Presumption of legal origin to support long user. Appeal from the judgment of Cozens-Hardy J., reported [1901] 1 Ch. 22. The action was brought by the plaintiff, as the occupier of land allotted under an Act for the inclosure of certain commons, against the defendants, as the surveyors of highways, claiming an injunction to restrain them from wrongfully allowing horses and cattle to be depastured on a certain road, of which the soil formed part of his land, contrary to the provisions of the Act and the award made under it, and damages. By the Act, which was passed for the inclosure of the commons, and their drainage in connection with that of a larger area in a fen level, as a work of public utility, it was provided that the herbage on roads to be set out under the Act should belong to the person or persons to whom the Inclosure Guthrie v. North China Insurance Company. Appeal from Mathew J. Commissioners should by their award allot the same, and that Part heard. in their award the Commissioners might insert such orders, regulations, and determinations, to be observed and followed by | stream for the purposes of their business. The plaintiffs' mill the several proprietors, as should be necessary or proper for the had existed for many years, as had also the old tannery. For completing and maintaining the drainage and inclosure. By the purposes of the tannery water had been abstracted from their award the Commissioners allotted the herbage on certain the stream, but the plaintiffs alleged that the defendants had roads adjoining watercourses, of which the road in question greatly increased the amount of abstraction. was one, to the surveyor of highways for the time being, to be by him let annually for the depasturing of sound and healthy sheep, but of no other cattle or stock whatever. The surveyors of highways had for more than fifty years made a practice of letting the herbage on the roads for the depasturing of a certain number of horses and cattle as well as sheep. The learned judge presumed an enlargement of the right of pasturage by lost grant or release, made in favour of the surveyor of highways by the allottees under the Act, and therefore gave judgment for the defendants. Rawlins, K.C., and Percival, for the plaintiff. THE COURT (Collins M.R., Romer L.J. and Mathew L.J.) held that, on the true construction of the Inclosure Act and award, the prohibition of the pasturage of stock other than sheep on the roads was intended to be a permanent provision; that it was made, not merely for the protection of the allottees under the Act, but also for the preservation of the drainage system in the public interest; that it was, therefore, not competent for the allottees or any body of persons to make a grant or release in favour of the surveyor of highways, so as to extend the right of pasturage on the roads to stock other than sheep; and that, consequently, no such grant or release could be presumed to support the above-mentioned practice of the surveyors of highways. They therefore allowed the appeal. Solicitors for the plaintiff: Clarke, Rawlins & Co., for Percival & Son, Peterborough. Solicitor for the defendants: J. Matthew Voss, for J. W. C. A. BAILY & Co. v. CLARK, SON & MORLAND. Watercourse-Artificial stream—Riparian owner-Right to flow of water. Appeal against a decision of Byrne J. By this action the plaintiffs claimed an injunction to restrain the defendants from diverting or abstracting the water of the stream to the injury of the plaintiffs' premises or either of them. The defendants claimed a prescriptive right to abstract the water for the purposes of their factory, and denied that they had abstracted an unreasonable quantity. There was no evidence as to the circumstances under which the artificial cut had been originally constructed, but it was known that it had existed for some centuries. There was evidence that more than 200 years ago a fulling mill had existed on the stream. Byrne J. granted an injunction restraining the defendants from wrongfully diverting or abstracting the water of the stream further or otherwise or to any greater extent than the water was formerly diverted or abstracted for the same process or processes (if any) as was or were formerly carried on at the old tannery, and which had since been carried on by the defendants at their factory. The defendants appealed. Levett, K. C., and R. Cunningham Glen, for the defendants. THE COURT (Vaughan Williams, Stirling, and Cozens-Hardy VAUGHAN WILLIAMS L.J. said that he would assume (without deciding the point) that the stream was an artificial one, and, that being so, the right to the flow of water must depend upon grant, proved or presumed, or upon prescription. The circumstances might be such that as to lead to the inference that the artificial channel was originally constructed upon the terms that all the riparian landowners should have the same rights to the use of the water as riparian owners would have in the case of a natural stream, and no more. Sutcliffe v. Booth, Feb. 27. (1863) 32 L. J. (Q.B.) 136, was an authority for that. In the present case the evidence shewed that there had been for a long time a withdrawal of water from the stream for other than domestic purposes at the old tannery, and that there had been another mill higher up the stream. His Lordship thought that the proper inference from the user was that the artificial stream had been originally constructed on the terms that water might be abstracted for manufacturing purposes equally by all the riparian owners, provided that the amount of abstraction was reasonable. In his Lordship's opinion there was no proof that the defendants had abstracted more than a reasonable amount of water. There might possibly be circumstances from which the proper inference would be that a millowner had a paramount right to the water of an artificial stream, but no such inference could be drawn from No possible inference from the evidence in the present case. the facts would give the plaintiffs that which they had really claimed-a right to every drop of the water of the stream. The plaintiffs were the owners of a mill, called Beckery Mill, near Glastonbury, which was situate upon a cut or channel by means of which part of the water of the river Brue was carried from a place called Clyce Hole, rejoining the river about a mile and a half lower down. For the purposes of the case the channel was assumed to be an artificial one. The plaintiffs also owned a factory, called Beckery Factory, closely adjoining and above the mill, where they carried on the business of manufacturing skins and rugs. The inflow of water from the river into the artificial ent was regulated by means of an artificial structure with removable boards, which was, and always had been, under the control of the miller, who had also always kept the channel clear and repaired its banks. The defendants owned a factory, called Northover Factory, also situate on the artificial stream, about 200 yards higher up than the plaintiffs' factory. The toubury; James & Mellor, for Hobbs & Brutton, Portsmouth. , STIRLING and COZENS-HARDY L.JJ. concurred. W. L. C. defendants had built their factory in 1870, on the site of an ancient tannery, and they carried on there the business of manufacturing C. A. March 1. proper in the premises, and to sign the plaintiff's name Deverges v. Sandeman, ClaRK & Co. or his trading name to any cheques on his banking account in London. The attorney, purporting to act on behalf of the Mortgage-Power of sale-Chose in action-Shares in company-plaintiff under this power, obtained a loan of 40007. from the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. defendants Messrs. Morris, ostensibly for the general purposes c. 41), ss. 19, 20. of the business, and accepted bills of exchange to that amount in his own name per pro the firm. The 40007. was paid into the plaintiff's banking account, and drawn out by the attorney, who misapplied it, without the knowledge of the plaintiff. Appeal against the decision of Farwell J., [1991] 1 Ch. 70. The action was brought by the mortgagor of shares in a company for the redemption of the shares, and in the alternative for damages for the alleged wrongful sale of the shares by the The action was brought by the plaintiff against Messrs. Morris mortgagees. The mortgage, which was not by deed, fixed no and the attorney for an injunction to restrain the defendants time for the payment of the mortgage debt, and it contained no from negotiating the bills for the 40007., upon the ground that power of sale. The mortgagees had sold the shares. The they were accepted without the plaintiff's authority. The questions were, whether the mortgagees had an implied power defendants Morris counter-claimed against the plaintiff and the of sale after the expiration of reasonable notice by them to the attorney for payment of the sums due on the bills with interest mortgagor to pay the debt, and, if so, whether reasonable notice at 4 per cent., and alternatively for the 40007. as money had had been given to the plaintiff. and received by the plaintiff to the use of the defendants Farwell J. held, (1) upon the Morris, with like interest. construction of the power, that it did not confer a general power of borrowing, and (2) that the 40007. could not be claimed as money had and received by the plaintiff for the use of the defendants Morris, inasmuch as he did not know, and had no means of knowing, that the money had been paid into his account until after it was drawn out. Farwell J. held that there was an implied power of sale, and that reasonable notice had been given, and that consequently the action failed. The plaintiff appealed. Robert Wallace, K.C., and Stutfield, for the plaintiff. Their LORDSHIPS agreed in holding that a mortgagee of shares, no time having been fixed in the mortgage for payment of the mortgage debt, has an implied power to sell the shares after the lapse of a reasonable time from notice by him to the mortgagor requiring payment on a day certain. Their Lordships referred to Tucker v. Wilson, (1714) 1 P. Wms. 261, 5 Bro. P. C. 193; In re Morritt, (1886) 18 Q. B. D. 222, 233; Ex parte Hubbard, (1886) 17 Q. B. D. 690, 698; and Robbins on Mortgages, vol. i., pp. 275, 276, as authorities for this view. STIRLING and COZENS-HARDY L.JJ. were of opinion that reasonable notice to the plaintiff requiring payment of the debt had been given by the defendants. VAUGHAN WILLIAMS L.J. was of opinion that reasonable notice had not been given, but that the notice which had been given was bad within the principle of Pigot v. Cubley, (1864) 15 C. B. (N.S.) 701. Solicitors: E. F. Weldon; Morley, Shirreff & Co. The defendants Morris appealed. Neville, K.C., Butcher, K. C., and A. L. Morris, for the defendants Morris. Upjohn, K.C., and Johnston Edwards, for the plaintiff. Solicitors: Hollams, Sons, Coward & Hawksley; Robinson & W. L. C. ENGELS v. HUBERT UNCHANGEABLE EYELET COMPANY, Principal and agent-Power of attorney-Construction-General words-Ejusdem generis-Borrowing-Excess of authority- Patent-Threats-Injunction-Patents, Designs, and Trade Marks Money had and received. Appeal from Farwell J., [1901] 1 Ch. 261. The plaintiff, who traded in Australia under a firm name, gave to his London agent a power of attorney to buy goods for him in connection with the business, either for cash or on credit, with power to modify or cancel the contracts for purchase, and "where necessary, in connection with any purchases made on my behalf as aforesaid or in connec'ion with my said business," to make, draw, sign, accept, or indorse any bills of exchange or promissory notes which shoull be requisite or Act, 1883 (46 & 47 Vict. c. 57), s. 32. Appeal by the defendant company against an interlocutory injunction granted by Byrne J. under sect. 32 of the Patents, Designs, and Trade Marks Act, 1883, to restrain the company from threatening legal proceedings against persons selling goods of the plaintiff's manufacture as being an infringement of the defendant company's patented articles (see [1902] W. N. 32). Moulton, K.C., and A. J. Walter, for the defendant company. After the appeal was opened, it was by arrangement ordered that the injunction should be dissolved upon the defendant company commencing an action against the plaintiff, who was a domiciled foreigner, or against his agent in England, for infringement, the plaintiff undertaking in either case to give security for the costs of the action to the satisfaction of the judge in chambers. Liberty to apply. Solicitors: Faithfull & Owen; Ashurst, Morris, Crisp & Co. H. B. H. bigh Court of Justice. Kekewich J. CHANCERY DIVISION. In re HISCOE. HISCOE V. WAITE. Administration-Practice-Annuity—Interest on arrears not allowed. Owing to misapprehension, an annuity, or annual sum payable out of the income of the testator's residuary real and personal estate, had been treated as determined, whereas it, in fact, according to the construction of the will as subsequently ascertained, continued. The question was whether the annuitant was entitled to interest on the arrears of the annuity. Wace, for the plaintiffs. Warrington, K.C., and Owen Thomas, for the annuitant. Whinney and Rashleigh, for the persons entitled to the accumulations. Cur. adv. vult. Costs-Apportionment - Methods of apportionment where one party liable to pay a portion but not the whole of the costs of action-Advantages of the proportionate method of apportionment-" Party and party" costs. This was an administration action which now came on to be heard on further consideration, when it appeared that the costs of the action were to a great extent occasioned by an unfounded claim set up by the defendant. In dealing with this matter his Lordship took occasion to make some remarks of a general character as to apportionment of costs. Renshaw, K. C., and Marcy, for the plaintiff. L. S. Bristowe, for the defendant. KEKEWICH J. said:-In these cases, which are of frequent occurrence in the Chancery Division, where a defendant or a Feb. 14, 21. plaintiff is liable to pay a large portion of the costs of an action, but is not liable to pay the whole, perhaps the ordinary and stereotyped way of carrying that out is by giving a direction to the taxing master to distinguish between the costs which the party is liable to pay and those which he is not liable to pay. Sometimes it is done by a direction that the party is to pay all the costs of the action, except so far as they have been increased by particular proceedings. There is also a form of dividing the costs according to the issues, which I think has been more common in the King's Bench Division, but this, though logical and strictly right, gives rise to a great deal of trouble. The costs of an issue, or costs increased by a particular claim, do not connote by themselves any of the general costs of the action, and therefore, when the matter comes before the taxing master, great difficulty occurs in distributing the general costs of the action, and, notwithstanding the great knowledge and experience KEKEWICH J. said that on principle he was unable to see solved. Sometimes it is possible with some care at once to say of the taxing masters, the difficulty is often not satisfactorily why interest should not be payable. An annuity after all was that the party who is to pay costs shall pay a certain propornothing but a legacy payable by instalments, and, as it was ordinary practice to calculate interest on legacies as a general tion of the whole costs, and if that can be done time and rule from twelve months after the testator's death, it was expense are saved. Of course such a method is necessarily extremely difficult to see why the arrears of an annuity should rough, and in the nature of an estimate, but still I cannot help not carry interest in the same way. But it seemed clear upon is right as the more logical and precise method. I adopted it thinking that such a rough estimate is just as likely to do what the decided cases that the practice was otherwise. His Lordship the other day in a case which came before me, and I propose to referred to the following authorities: Batten v. Earnley, (1723) do so again now. I commend the practice to my brother judges 2 P. Wms. 162; Anderson v. Dwyer, (1801) 1 Sc. & L. 301; Martyn v. Blake, (1842) 3 Dr. & War. 125; Taylor v. Taylor, (1849) 8 Hare, 120, and Torre v. Browne, (1855) 5 H. L. C. 555, 577, where Lord Cranworth said, "The general rule of the Court is that arrears of an annuity do not carry interest." The textbooks were to the same effect. In particular his Lordship referred to Daniell's Chancery Practice, 7th ed. vol. i. p. 537, and added that he had consulted two of the most experienced masters, viz., Master Lionel Clarke, in his own chambers, and Master Hawkins, in the chambers of Byrne J., and they entirely confirmed the views expressed in Daniell's Chancery Practice as to what is the practice of the Court. The interest, therefore, in the present case could not be allowed. works well where the judge sees his way. Sometimes, of course, as one deserving of their consideration. I am sure that it it cannot be done, as in a witness action, for example, where the judge often cannot tell how much trouble has been taken to get up the evidence of a particular witness, who in the result, and because of the course taken by the case, is only asked a few questions. But there are many cases in which I think it may, with reflection, be easily done. His Lordship then dealt with the facts of the case, and directed that the defendant should pay two-thirds of the whole costs of the action. A further point then arose in reference to the form of order as to taxation of certain costs which it was necessary to tax, not Solicitors: Linklater, Addison, Brown & Jones; P. Jerome; only as between solicitor and client, but also on the ordinary Thorne & Welsford; Jerome & Co. C. C. M. D. basis of taxation. The question was whether the expression |