WREN V. THE EASTERN COUNTIES RAILWAY. Nov. 12, 1859-REPORTS.] "The application made to me by the petition was, Saturday, Nov. 5. Re JEPHSON AND THE TRUSTEE RELIEF ACT. A trustee who pays money into court under the Trustee Relief Act (10 f 11 Vict. c. 96), is thereby discharged as against the claims of all the world. Where therefore a party claims to be entitled to a share of such a fund, although not included in the usual affidavit made on the fund being paid in, he must obtain the leave of the court to file a bill in respect of such claim, and his right will not be declared on petition. This was a petition presented by a party claiming to be beneficially interested in a fund in court paid in by certain voluntary trustees under the provisions of the Trustee Relief Act. The fund had originally stood in the names of other trustees; but, by an arrangement between the parties, three other trustees had been appointed, to whom the Finding considerable litifund had been transferred. gation likely to ensue, these latter trustees had paid the A petition was now presented by him stating these facts, and praying that it might be declared by the court that he was entitled to an aliquot portion of this fund, or that he might have leave to file a bill to have his interest established. C. Swanston, in support of the petition, contended that the court had jurisdiction on petition to make such a declaration, and would not put the petitioner to file a bill, but that at all events he ought to be allowed to file his bill for that purpose. [Q. B. dends or interest thereof." The present petitioner therefore, not being one of such persons mentioned in the affidavit, could not apply. The VICE-CHANCELLOR said that it appeared to him that the trustees having paid the fund in their hands into court, they were discharged as against all He thought the petitioner had made out He (the the world. such a case as to render a bill necessary. V.C.) considered it very questionable whether (if a fund which had been paid in under the Act was subsequently paid out improperly and only to the parties mentioned in the affidavit) a party whose name had been omitted in the affidavit could proceed against the trustees for so paying in the money without naming At all events it was inconvenient to dissuch party who subsequently proved to be entitled to a share of it. cuss such complicated questions upon petition. He should therefore order that the petitioner might be at liberty to file such bill as he might be advised within one month. The corpus of the fund not to be dealt Order accordingly. with in the mean time. Common Law Courts. COURT OF QUEEN'S BENCH. Reported by JOHN THOMPSON, T. W. SAUNDERS, and C. J. B. HERTSLET, Esqrs., Barristers-at-Law. Wednesday, Nov. 2. WREN V. THE EASTERN COUNTIES RAILWAY. Railway carriers-Fish traffic-Reasonable time of delivery-Negligent delay. The course of conveyance of fish from Y. to H. was, This was an action of negligence against the com- to the fish Elderton, contra, contended that the court had no jurisdiction. By the 1st section of the Act the receipt of the bank cashier or certificate of the proper officer for a fund so paid in was a complete discharge against all claims as against the trustees; and by the 2nd section the court might then administer the fund as in an administration suit. By the general order of the 10th June 1848, made out the provisions of the Act, it is provided by the third rule that the trustee having made the payment fish train left Yarmouth in the evening direct for into court is forthwith to give notice to the several London, but at Cambridge the truck containing fish for parties named in the affidavit as interested or entitled Hitchin was detached and forwarded in the morning by a passenger train, arriving at Hitchin about eight a.m., to the fund. And by the 4th rule "such persons, or any of them, or the trustee, may apply by petition as in time for the market. The plaintiff had invariably occasion may require respecting the investment, pay-received his fish by this mode of conveyance. On the ent out or distribution of the fund, or of the divi- 17th Jan., when the fish train arrived at Cambridge, NEWCOME . DE Roos.-TUCKER v. TARRANT. Q. B.] the truck for Hitchin was detached as usual and put on a siding; but, from some unexplained cause, not sent on as usual to Hitchin, and did not in fact arrive at Hitchin until eleven a.m., when it was too late for the market. The plaintiff then refused to receive the fish, whereupon the company sold it (alleging that they were justified in so doing under one of their bye-laws), and tendered the proceeds to the plaintiff, which he also refused to accept. This sale was the conversion relied on in support of the count in trover. E. James (Barnard with him) moved to enter the verdict for the defendants; and contended, first, that there was no contract proved by which the defendants were bound to forward the fish from Cambridge to Hitchin by a passenger train, and that there was no unreasonable delay in the fish not arriving before eleven a.m. at Hitchin; secondly, it was contended that there was no conversion in the sale of the fish, as the plaintiff had wholly refused to receive them, and the defendants were not bound to keep them, being of a perishable nature. County [Q. B. Saturday, Nov. 5. A. in London writes to B.. in S. County Court juris- Held, that the S. County Court had jurisdiction under The plaintiff resided in Stamford, and the defendant, £1 10 0 After giving the account on both sides, the plaintiff sought to recover a balance of 3. odd. The registrar of the Stamford County Court had issued a summons out of the court, on the ground that the cause of action arose in the district: (9 & 10 Vict. c. 95, s. 60; and 19 & 20 Vict. c. 108, s. 15.) COCKBURN, C.J.-I think that there should be no rule on the first point. It seems to me that the true view of the case is, that the company contracted to convey the fish according to the ordinary course of carriage of goods of this character. It is true, generally speaking, that the fish was paid for as goods, and to be carried as such, and that the parties receiving them were entitled to have them forwarded by the goods train; but the company, by a long course of dealing, as far as this species of traffic between Cambridge and Hitchin was concerned, had been accustomed to con- B. C. Robinson moved for a prohibition.-The cause vey fish from Cambridge to Hitchin by a passenger of action in 9 &10 Vict. c. 95, s. 60, means the whole train, arriving at Hitchin at eight a.m., in time for the cause of action, and here the whole cause of action market. Independently of the written contract it is did not arise in the Stamford district. Here all that this: a man at Hitchin desires to have fish forwarded was done by the defendant was done in London. from Yarmouth to Hitchin, and he knows that in the [WIGHTMAN J.-The claim is for work and labour, all ordinary course of conveyance the fish arrives at that was done in Stamford, and the order for it was Hitchin in time for the market, and, knowing this, he received by plaintiff in Stamford.] If one party stands contracts to have fish forwarded accordingly. And in on one side of the boundary line of a county, and gives reason and justice he is entitled to be dealt with by an order to another standing on the other side of the the company on that footing. Is there, then, any-boundary, and in a different county, the whole cause of thing in the written contract to alter that state of action cannot be said to arise in either county. In Sir things? I think not. The reasonableness of the time F. Burdett's case the putting a letter into the post was of the conveyance is to be ascertained by reference to held to be a publication in the county: (Fuller v. the ordinary course of conveyance to Hitchin. The Mackay, 22 L. J. 415, Q.B.; Borthwick v. Walton, fish in this case did not arrive at Hitchin in the usual 24 L. J. 83, C.P.; Jackson v. Beaumont, 24 L. J. and fixed time, through some oversight of the com- 301, Ex.) Then the two items in the particulars for pany's servants at Cambridge which they cannot justify, "cash" and "returns," leave it ambiguous as to where and they therefore say that they were only bound to the cause of action as to these arose. forward the fish by a goods train, and that they did so. But that train did not arrive until eleven a.m., which was too late for the market. I therefore think the plaintiff was entitled to recover. WIGHTMAN, J.-The question is, was there evidence from which a contract could be implied that the company would carry the plaintiff's fish in the same manner as they had previously done? The written notice is consistent with either view; that is, with the fish being carried either by a goods train or a passenger train. The company in all their dealings with the plaintiff had invariably sent the fish from Cambridge to Hitchin by a passenger train; and the plaintiff in the present instance had no reason to suppose that they would be sent by any other. The plaintiff is therefore entitled to recover. HILL, J.-I agree, for the reasons stated, and I wish merely to add that the note signed by the party is headed, "Fish consignment note," showing that they were dealing with fish and not goods merely, and that the fish were to be forwarded in a reasonable time. agree with what the Lord Chief Justice has said upon the reasonableness of the time. BLACKBURN, J.-I am of the same opinion. I Rule nisi refused on the first ground, but granted on the second. COCKBURN, C. J.-I am of opinion that no rule should be granted. Admitting that the whole cause must arise within the jurisdiction, here it has arisen within the jurisdiction, because the whole work was done at Stamford, at the request of the defendant. The request of the defendant was not a complete request until it got to Stamford, and therefore the work was done on the request of the defendant at Stamford. WIGHTMAN, J.-I am of the same opinion. HILL, J.-Taking the illustration put in argument of a party standing at one side of the confine of jurisdiction, and another party at the other side, still the request is received and accepted by the party who is standing within the jurisdiction of the County Court. Rule refused. Q. B.] HEALING (appellant) v. CATHRELL (respondent). [Q. B. living apart from her husband without her fault and | defendant became liable to support his wife as if without means of maintenance. nothing relative to the deed had ever happened. As to the reduction of damages, I think a rule nisi should be granted. Action for board and lodging of the defendant's wife and child for forty-seven weeks, at 148. per week. The case was tried before Blackburn, J., and the facts proved were, that after the marriage and the birth of the child, the defendant and his wife being unable to live together, a deed of separation was executed, under | which the plaintiff, the wife's father, was trustee. The deed contained a covenant by the defendant to pay to the plaintiff 607. per annum for the benefit of the wife and child, provided that if the wife should commit adultery, or molest or disturb the husband, to compel him to live with her, or sue for restitution of conjugal rights, the payment was to cease, and the deed to become void. There was evidence that in 1851 the wife did molest the defendant, and that the plaintiff was cognisant of it, and the deed of separation was thereby rendered void, and the payment of the 607. per annum ceased. In 1856 steps were taken to obtain parochial relief, and an order of magistrates obtained by the parish officers for the payment of 88. per week by the defendant for his wife's support. At the time such order was made the plaintiff was present, and 88. appeared to be a satisfactory sum to all parties. That amount was regularly paid to the clerk of the guardians of the parish union down to the 14th April 1858; but after a time the clerk ceased to pay the money over to the wife, and the wife and her father thought that the defendant had ceased to pay it to the clerk, whereas the fact was that the defendant had paid it, and the clerk had embezzled such payments to the amount of 137. There was no proof of any act of adultery on the part of the wife, and the jury found that she was living apart from her husband without her fault, and that she had no maintenance of her own, that neither the wife nor the plaintiff knew that the 13. embezzled had been paid over by the defendant, and that 14s. per week was the proper sum for the allowance by the defendant to his wife under the circumstances. The learned judge thereupon directed the verdict to be entered for the plaintiff for 327. 188., reserving leave to the defendant to move to reduce the verdict by the 137. Edward James now moved for a new trial, on the ground of misdirection, and also to reduce the verdict by the 137. The defendant having covenanted by the deed to pay 607. per annum for the wife's support, and she, with the plaintiff's cognisance, having broken the contract on her part not to molest him, the plaintiff could not maintain this action upon an implied assumpsit in respect of her board and maintenance. For this purpose the plaintiff stands in a different position to a stranger to the deed. [WIGHTMAN, J.—If no one will give the wife credit, who is to support her? BLACKBURN, J.-At the trial I ruled that, assuming that the plaintiff and the wife had broken the covenant, and that they could not enforce the payment provided by the deed of separation, still that was no defence to this action if the wife was living apart from the husband, without her fault, and had no means of maintenance.] Again, if the defendant is bound to pay the sum sought to be recovered in this action, he will be entitled to sue the defendant in a cross-action for a breach of the covenant. Moreover, the 88. per week ordered by the magistrates, with the concurrence of all parties, precludes the plaintiff from now demanding 148. per week. COCKBURN, C.J.-I think that there should be no rule granted for a new trial. The deed of separation, so long as it was in force, released the defendant from any implied liability to maintain his wife. But the efficiency of the deed depended on the covenant, and the breach of that put an end to the deed. The parties were then remitted to the same condition as if the deed of separation had not been entered into, and the WIGHTMAN, J.-I am of the same opinion. Assuming that there was no immoral conduct on the part of the wife, she is entitled to be supported by her husband. Here, by molesting her husband to take her back again, the deed of separation was rendered void. That remitted the parties to the state of things before, and I therefore think the action maintainable. BLACKBURN, J.-If the wife's having lost her remedy under the deed of separation, was the same thing as the money having been paid to her, the argument of defendant's counsel would be right. But it is not. I agree with the reasons already given by the court for refusing the rule. Rule refused on this point. Wednesday, Nov. 9. SUTCLIFFE (appellant) v. SURVEYORS OF HIGH- Up to 1855 a footway across a brook had been by Appeal against a conviction under the Highway Act (5 & 6 Will. 4, c. 50, s. 72), for wilfully obstructing a highway. It appeared that there was a footway across a brook by means of fourteen stepping-stones and through the appellant's estate, which adjoined the brook. In 1855 the surveyors of the highways of the parish (Sowerby, Yorkshire, W.R.) reduced the number of steppingstones to eight, increased their height, and placed flags on the top of them, forming a kind of bridge, for the public convenience, whereby the traffic on the footway was increased, to the annoyance of the appellant. The appellant thereupon resisted the right of the surveyors to alter the means of crossing the brook, and caused the flagstones to be removed. For such removal the justices convicted the appellant upon an information by the surveyors. Maule for the respondents.-The conviction was right. The substantial thing is the right of footway over the brook. It is clear the surveyors might renew the stones, or repair or replace them. If they thought proper, they might reduce the number; and it is submitted that, for the safety and convenience of the public, they had a right to put flagstones on the stepping-stones. Manisty, contra, was not called upon. By the COURT.-It is an act of trespass putting down flags upon higher stepping-stones, and it is enlarging the public right. It could not be contended that a permanent bridge could be erected over the brook, and yet the placing of flagstones on the steppingstones is of that nature. The overseers must repair the way across the brook with stepping-stones. Down to the year 1855 the passage across the brook had been by means of fourteen stepping-stones, and the owners had been content to allow the public to cross it in that way. The conviction must therefore be quashed. Conviction quashed. HEALING (appellant) v. CATHRELL (respondent). Pawnbroker-Loss of pledge by neglect-39 g 40 Geo. 3, c. 99, s. 24. A pawnbroker placed a gold watch pledged, with other Q. B.] REG. v. THE INHABITANTS OF SELBORNE.-COX v. MITCHELL. valuable property in a strong room on premises left at night without any guard or person to sleep on them. The premises were broken into and the watch stolen: Held, a loss by default or neglect in the pawnbroker within 39 & 40 Geo. 3, c. 99, s. 24. Appeal against a conviction by the magistrate of Liverpool under the Pawnbrokers Act, 39 & 40 Geo. 3, c. 99, for improperly refusing to restore a pledge on the money being tendered, whereby the appellant was adjudged to pay to the pawnor the full value of the pledge a (gold watch). The pledge in question was deposited by the pawnbroker in a strong room, in a house, of which at night there was no one to take care, and no person slept on the premises. The house was entered at night, the room broken open, and the pledge stolen among other property. The magistrate was of opinion that it was not safe to keep such property in such a building without leaving a person to guard it at night, and that it was a case of loss by default and neglect in the pawnee within the meaning of sect. 24 of the Act. Aspinall for the appellant.-There was no such default or neglect as authorised the magistrate to convict the pawnbroker under sect. 24. COCKBURN, C.J.-A pawnbroker has a large amount of valuable property belonging to other people, and it is his duty to take such care of it as a prudent person would of his own property. In this case the pawnbroker leaves it in a room on premises unguarded at night, except by the ordinary means of bolts and locks. Can any one doubt that this is an act of default and neglect on the part of the pawnbroker of the property entrusted to his care? The rest of the Court concurring, Conviction affirmed. REG. v. THE INHABITANTS OF SELBORNE. Poor-Settlement-Minor-Emancipation. A minor entered into the metropolitan police force as a constable, and remained till his marriage, at which period he was still a minor: Held, that he did not become emancipated from parental control by entering into the police force. Case granted by the Middlesex court of quarter sessions on confirming an order of removal of a pauper by justices. The simple point was, whether a minor, by entering into the metropolitan police force as a constable, where he remained until his marriage, at which period he was still a minor, became emancipated from parental control. Smart.-The son became emancipated by entering the police force. That is a position inconsistent with parental control, as thereby the son entered into the service of the state. Cases referred to:-R. v. Rotherfield, 1 B. & C. 345; R. v. Lytchet Matraverse, 7 B. & C. 226. [C. B. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and R. VAUGHAN WILLIAMS, Esqrs., Barristers-at-Law. Wednesday, Nov. 2. (Before ERLE, C.J., WILLIAMS, CROWDER and BYLES, JJ.) Cox v. MITCHELL. Staying proceedings-Action in foreign state and in this country for same cause. The plaintiff, a merchant in Liverpool, commenced an action in the United States against the defendant, an American subject, for the breach of a contract, made in New York, for the purchase and sale of cotton. Whilst the action was pending in the Federal Court the defendant came to Liverpool; whereupon the plaintiff brought another action against him in this country, arrested him, and he was held to bail: The Heid, on motion to stay the proceedings and for the Mellish now moved for a rule, calling on the plaintiff to show cause why the proceedings should not be stayed, and why the defendant should not be discharged from custody of his bail. The question here is, whether the plaintiff may carry on separate actions in the two countries at the same time for the same cause of action. It is contended he may not; but, at all events, he must elect which action he will continue; if he pursues the action in the United States, then this court will stay the proceedings until the cause there is determined. Great hardship will follow if the relief here prayed be refused to the defendant. The plaintiff may carry on his action in both countries; he may recover larger damages in one than in the other country, and pursue his advantage accordingly. If the action be carried out to completion in the United States and judgment satisfied, that, if the proceedings in the English court should have been stayed in the mean time, could unquestionably be pleaded to this action. admitted there is no exactly parallel case to be found as an authority for this application; the nearest is a By the COURT.-The distinction is obvious between case (not reported) where a suit was commenced in the a soldier and a police constable. By becoming a police Consular Court of Constantinople and in this country, constable a minor is not emancipated. Indeed, by and Coleridge, J. made an order nearly such as is here giving a month's notice, he inay quit the police force, sought. [ERLE, C.J.-Is there any ground for the and the case expressly finds that the son had con- application beyond the hardship urged? Hardship tracted no engagement which excluded him from may be worked both ways, whether the plaintiff's proreturning to his home. From R. v. Woburn, 8 T. R. ceedings be stopped here, or he is allowed to proceed. 479, where it was held that service in the militia did Is there any legal authority for such an application?] not emancipate a son, R. v. Higgate, 2 B. & Al. 582, None, except the case before Coleridge, J., just referred to, where apprenticeship to a certificated man, the son not a copy of the order in which is here in court. It is subreturning to his father's house till after he was twenty-mitted that this court has jurisdiction to grant the deone, was held not to emancipate the son, and other cases fendant this relief, such as it has when it makes orders down to R. v. Scammond n, the authorities are clear to for the consolidation of actions. What the defendant show that the minor in this case was not emanci- wants is to avoid the expense of trials in the two pated. countries. Metcalfe, contra, referred to R. v. Scammonden, 8 Q. B. 349. It is C. B.] C. B.] HICKLE v. REYNOLDS.-GREEN v. MACNAMARA AND OTHERS. ERLE, J.—I am of opinion that this rule must be | And I also think that the landlord coming to take posrefused. It is an application for the interference of session eo instanti determines the tenancy at will. I the court, entirely without authority to support it. If think therefore there is abundant evidence of the dethe plaintiff had obtained judgment in America, and it termination of the tenancy. had been satisfied, this court would have stayed the proceedings. But when a debtor, sued in a foreign country, leaves that country and comes to this, and is here arrested, I see great danger in the court discharging him. There is inconvenience, no doubt, on both sides; but the greatest would be worked were we to accede to this application. WILLIAMS, J. concurred. CROWDER, J.-I am entirely of the same opinion. Unless we had clear authority for such a motion as this, we ought not to act. BYLES, J.—I am of the same opinion, and for the same reason that is, absence of authority for such a course; and this view is strengthened by the circumstance, that the mercantile transactions between the two countries are so numerous and so vast that it cannot but be that thousands of similar cases must have arisen; whereas, if there had been ground for the granting of such relief, the courts would have granted it, and there would have then been authority citable for such a motion. Rule refused. Thursday, Nov. 3. POLLON AND WIFE v. BREWER. A tenancy at will may be determined by the landlord Macnamara now showed cause.-It is intended to question the authority of Newton v. Harland, 1 M. & Gr. 644. The majority of this court there held that, if a person hold over after a notice to quit, the landlord cannot expel him by force, manu forti. [WILLIAMS, J.-I don't think the point in Newton v. Harland was raised at the trial. I was expecting it would be raised, and alluded to the case myself, because I know that a great part of the profession thought that Coltman, J., who differed from the majority of the court, was right. I did not reserve the point; but, if you say that in consequence of what fell from me you considered the point to be taken, and were prevented from yourself taking it, I should be sorry to shut you out from it.] I can not say that. WILLIAMS, J.-I am of the same opinion. It is said that the sending for the keys would not do, because accompanied by a denial that there was any tenancy at all. I think the true construction of that is, "I deny that there is any tenancy at all; but if there is a tenancy at will I determine it." CROWDER and BYLES, JJ. concurred. Rule absolute to reduce the damages to 31. Friday, Nov. 4. HICKLE v. REYNOLDS. This was an action of slander, tried before the Lord Joyce now moved pursuant to leave reserved to set aside the verdict and enter a nonsuit. It appeared in evidence at the trial that the plaintiff was a housepainter, and the defendant a waiter; their houses adjoined, and some altercation having on one occasion taken place, the defendant, as alleged in the declaration, said to the plaintiff, "Your house," meaning the plaintiff's house, "is a bawdy-house, and no respectable person would live in it." These words were not proved as laid in the declaration; but the plaintiff's wife swore that the defendant said to her, “You are a nuisance to live beside of, and your house is no better than a bawdy-house." the first place it is contended that the words are not actionable, the imputation being, not that the house was a bawdy-house, but that it was no better than one; secondly, if the court should hold that the words are actionable, the plaintiff must be nonsuited nevertheless, because the words were addressed to the wife and concerning her, and she was not joined as a party to the action. In CROWDER, J.-Do you contend it is not actionable to say to another, "Your house is a bawdy-house?" ERLE, C.J.-This is a very plain case. It is impossible not to see that the words here used imputed an indictable offence to the plaintiff; and it is equally obvious that what was said directly to the plaintiff's wife imputed that plaintiff kept a bawdy-house. If the wife was earning a living herself by such a disreputable pursuit, as the parties were living together, no jury would hesitate to convict the husband if he were indicted for keeping a common bawdy-house. CROWDER, J.-There is no pretence for saying the husband and wife were living separate; they were keeping the house together, so that what applied to the one applied also to the other in this respect. A ERLE, C.J.-There will be no rule. Rule refused. Saturday, Nov. 5. GREEN v. MACNAMARA AND OTHERS. Master and servant-Wilful act of the latter. master is not liable for the wilful act of his servant done contrary to his orders. The declaration in this case charged the defendants with combining together by a variety of acts to injure the plaintiff's trade as an omnibus proprietor: verdict against Price one of the defendants, and for the other defendants. At the trial Price was shown to have actively interfered and to have done many acts within the terms of the declaration. It was not shown that the other ERLE, C.J.-Then we must dispose of the case as defendants interfered, and at the trial they denied that it is, and I think the rule must be made absolute. The they knew of the acts complained of, and they said also plaintiff at the utmost had a tenancy at will; while it that they gave orders that such acts should not be existed the landlord sent to ask for the keys, and called done. It appeared that whenever an omnibus of the upon him to give up possession. I think either of plaintiff started, two or more omnibuses of the defenthose things sufficient to determine a tenancy at will.dants immediately started, and, as far as they could, |