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AN EPITOME of the NEW CHANCERY PRACTICE: Jointstock Companies Winding medication aclurisdiction de donar

FINLASON'S COMMON-LAW ACTS. ).

Recently published, in 1 thick rol., 8vo., price 17. 10s. cloth boards, Recently published, in J2mq., price 148. cloth,

THE SECOND EDITION OF and 1864with Notes, "containing all the Casas either fallegt THELAWL OF RAILWAYS, RAILWAY COMPANIES,

and RAILWAY INVESTMENTS. With the Cases on Comexpressly decided on or tending to elucidate them. With an Appendix, pensation, Mandamus, Injunction, and Railway Rating: Remarks on containing the Common-law Procedure Act 'of Will. 4, the recent Acts the Extent of the Jurisdiction over Railways conferred on the Court of on Evidence, the New Rules to Michaelmas Vacation, 1854, and an Common Pleas; and on the Equitable Jurisdiction in Railway Transac

tions recently transferred to all the Courts of Common Law; also the *** This is, in our judgment, a most excellent and carefully written Practice in Committees in Parliament on passing Railway, Bills. The book.. The equity powers given to the Common-law Courts are ad: | Appendix contains all the Statutes, with Notes referring to the Treatise; mirably done. The views taken by Mr. Finlason of the practical and Precedents of Deeds, Notices, Warrants, Bonds, &c. By WILLIAM bearing and operation of these acts are remarkably shrewd and sug; HODGES, Esq., of the Inner Temple, Barrister at Law, Recorder of gestive. Such men, and their editionis of statutes, tend very greatly to Poole. Second Edition.. improve the laws they expound, and powerfully assist the objects of the London: S. Sweet, Chancery-lane, Fleet-street, Law Bookseller and Legislature."-Law Magazine, Feb. 1855.

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THE LAW OF ELECTIONS. consideratior. of the Profession. ,,The notes to the various new enact

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CAUTION PAPERS.RADESMEN MERCHANTS, turoughout the country.

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No. 13, NEW SERIES.-Vol. I.
No. 952, OLD SERIES.-

Vol. XIX.

APRIL 7, 1855.

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JURI

NEWSPAPER

304

CONTENTS. Leading Article

116

EXCHEQUER CHAMBER. Reviews

117

By G. J. P. SMITH, Barrister at Law. Correspondence

119

Maybew v. Suttle.-(Agreement-Sale of beer on preProspectus of Lectures — Trinity Educational Term 119 mises-Occupation as servant)

303 London Gazettes....

121

COURT OF QUEEN's Bench.
NAMES OF THE CASES REPORTED.

By G. J.P. SMITH and W. B. BRETT, Barristers at Law.
COURT OF CHANCERY.

Mackenzie v. The Sligo and Shannon Railway Com. By T. EDWARDS, Barrister at Law.

pany.-(Joint-stock company-Winding-up Act, Lazonby o. Rawson.- (Will, construction of Ad.

11 & 12 Vict. c. 45– Fund in court-Creditor mission of assets--Legacy receipt, pleading of) 289 Execution against shareholder).. COURT OF APPEAL IN CHANCERY.

Purchas, App., The Overseers of the Parish of the By F. FISHER, Barrister at Law.

Holy Sepulchre, Cambridge, Resps.—(Poor rateDuncan v. Cannan.-(Domicil, effect of change of

Cambridge Philosophical Society-Reading-room Scotch settlement, construction ofJus mariti-

--Exemption–6 & 7 Vict. c. 36-Purposes of inImpounding of life interest) ... 291 stitution-Purposes of occupation)

304 ROLLS COURT.

Reg. v. Bedwell.-(Master and servant-Payment of By G. Y. ROBSON, Barrister at Law.

wages-Order of justices-- Appeal-20 Geo. 2, c. 19, ss. 1, 5-4 Geo. 4, c. 34, s. 5)

306 Greenslade v. Dare.-(Sale by lunatic-Fraud-Subsequent sale for valuable consideration - Construc

Griffenhoofe v. Daubuz.-(Landlord and tenanttive notice)

294

Tithe rent-charye, covenant by tenant to pay

Tithe rent-charge due after end of tenancy—687 VICE-CHANCELLOR KINDERSLEY'S COURT.

Will. 4, c. 71, 88. 67, 80, 81)

307 By C. MARETT, Barrister at Law.

Taylor v. Nesfield.-(Trespass Two counts: verdict Lord v. Colvin.-(Practice-Cross-examination).... 298

on one for plaintiff, on the other for defendantGurney v. Gurney.-(Legacy-Residuary bequest

Summons taken out by defendant-Postea de. Attestation of codicil by legatee, and by one inte

livered to defendant-Judgment signed by defendrested in share of residue)

298
ant for plaintiff) ....

309 VICE-CHANCELLOR STUART's Court.

COURT OF COMMON PLEAS.
By T. F. MORSE, Barrister at Law.

By W. Paterson and W. MILLS, Barristers at Law. Cropper v. Mellersh.—(Foreclosure suit--Equity of redemption - Trustee-Representation -15 8. 16

Wilson v. Morrell.--(Practice-Rescinding order of Vict. c. 86, 8. 42— Parties)

299 reference-Reference without the consent of a third party)

310 In re The Sea Fire and Life Assurance Company, ex parte Gwyn.-(Joint-stock Companies Registra

Smart v. Harding.-(Contract relating to an interest tion Act-Practice-Claim against a company

in land-Statute of Frauds, 29 Car. 2, c. 3, s. 4) 311 Action at law the proper proceeding to recover it) 300

Court of ExchEQUER.
Vice-CHANCELLOR Wood's Court.

By W. M. Best, Barrister at Law.
By MATTHEW B. BEGBIE, Barrister at Law.

Rodway v. Lucas.-(15 & 16 Vict. c. 76, 88. 25, 27Cochrane v. St. Clair.—(Settlement)

302 Special indorsement--Interest - Appearance) .... 311

THE JURIST.

measured by the Custom-house authorities. It then

measured 2785 quarters, instead of 2664 quarters, (the LONDON, APRIL 7, 1855.

latter being the amount in quarters of the 3700 chet

worts mentioned in the bill of lading, and which was A QUESTION of considerable interest in a commercial found as a fact to have been the quantity shipped). point of view has been lately decided, not, however, the plaintiffs claimed freight on the larger quantity. without the dissent of one learned judge, in the Court There was no evidence to shew the cause of the of Exchequer. The case to which we allude is Gibson increased bulk, whether it arose from heat, or water

, and Another v. Sturge and Another, (1 Jur., N. S., part or the bad condition of the wheat when shipped, or 1, p. 259), which decides that freight is payable upon a from defective stowage, or the negligence of the master cargo according to the quantity shipped, and not accord- and crew during the voyage. There was no evidence ing to the quantity delivered, where the cargo has in- of any usage controlling the point in dispute

, and it creased in bulk during the voyage, and there has been was admitted on all sides that there was not any conno agreement between the parties upon the subject. tract affecting it, either in the bill of lading or the The facts were briefly these :--A cargo of wheat had charterparty. Although a similar state of facts must been shipped at Odessa for Gloucester. The material have often existed, it appeared to be a case of the first part of the bill of lading was as follows:-“Shipped impression; and there being, therefore, in The Prompt, now riding at Odessa, and bound for thority upon the subject, the learned judges discussed the United Kingdom, 3700 chetworis of wheat in bulk, it upon general grounds of analogy, convenience

, and to be delivered at the port of destination unto A. B.justice. Martin, B., differing from the rest of the and C. D., or their assignees, paying freight for the Court, was of opinion that freight was goods as per charterparty.” By a memorandum in the quantity delivered. His Lordship said“ Freight the bill of lading it was declared that the quantity is to be paid upon the wheat shipped and the wheat and quality were unknown to the master. The pro- delivered. The wheat must be delivered to entitle the vision in the charterparty as to the freight was, that plaintiffs to freight; but they have delivered the entire it was to be according to the London, Baltic, printed quantity which was shipped. So far as rates, which is a certain well-known rate per quarter. the trial, every grain of wheat shipped The wheat was accepted at Gloucester by the de- Odessa was delivered to the defendants at Gloucester. fendants as assignees of the bill of lading, and was

It was argued, that the bulk which was deli

no direct au

payable upon

appeared at on board at

vered beyond the bulk shipped was water, and not It is the duty of the master to ascertain the quantity wheat; but there was no evidence that any water ever he receives at the time of loading, and this may be done came in contact with the wheat at all, and I believe without difficulty, as he must be aware of the number there are causes which increase the size of grain other of cubic feet which his vessel is competent to afford to than contact with water. . . . The valuable part of the the stowage of grain, and the cubic bulk of such a comgrain is that which produces the flour; but in the grain modity as grain when stowed. there is the husk, and I believe always a certain quan- There was not a real, but only an apparent increase tity of moisture or water, which can only be removed in the commodity; it may be that during the last two by kiln or artificial drying. .... The circumstance or three days of the voyage the wheat imbibed a quanof the wheat being damaged does not at all affect the tity of water, which made it occupy a larger space, and right of the plaintiffs to freight. It has been decided, the shipowners claim freight for the water so imbibed, that where the entire quantity was delivered the ship- as well as for the wheat that was shipped and carried owner was entitled to the full freight, notwithstanding the whole voyage; if the water could be separated, the it was proved that the goods conveyed had been da- defendants would be entitled to reject it, and be liable naged by the negligence of the captain and crew, and for freight only on the wheat freed from this injurious that the remedy for the merchant was by a cross action addition. Suppose a cargo of sponge shipped dry, and for negligence. (Davidson v. Gwynne, 12 East, 381).” to be paid for by weight at the end of the voyage, the The learned judge then rested his judgment upon the consignee might surely squeeze out all the water imfollowing groundsfirst, it was just and reasonable that bibed during the voyage, and pay for sponge only. the measurement of the largest space occupied by the The mere difficulty of separation cannot, however, cargo during the voyage should be the test for ascer- affect the question. “It is manifest,” said Pollock, taining the payment of freight; secondly, by analogy to C. B., " that a cargo of wheat may be increased in bulk the case above stated, that freight is payable upon the (and to the great injury of the cargo) by the fraud or delivery of the entire quantity shipped and accepted, negligence of the captain and crew; and I think that irrespective of its condition; and, thirdly, upon the laws ought to be framed, and the decisions of Courts of ground of convenience, as it was often impossible to law (as far as possible) ought to be founded, on the same measure the cargo when shipped, (sometimes, as in the principles as prevail in the moral government of the principal case, out of barges in an open roadstead), universe—that, as far as possible, duty and interest while, upon its arrival in this country, it is hy law to be should not be opposed to each other. I think it would be measured under the supervision of the Custom-house dangerous and mischievous to give a shipowner a right authorities. Were the delivery of the cargo and the to charge more freight for an injurious alteration in the payment of the freight to be held in suspense until a commodity carried, which he or his agents have always communication could be made to Odessa, in order to the means in their own hands of producing.” ascertain whether the quantity mentioned in the bill of lading was correct? If, on the one hand, the making the freight payable on the quantity delivered would

Beviews. hold out a temptation to shipmasters to wet the cargo, and so increase its bulk; on the other, a contrary A Treatise on the Law of Letters-patent for the sole Use rule would enable a dishonest consignee to delay the

of Inventions in the United Kingdom of Great Britain payment of freight, which he might be desirous of

and Ireland, including the Practice connected with the

Grant. To which is added a Summary of the Patent doing when the article on its arrival was low in the

Laws in force in the principal Foreign States, with an market.

Appendix of Statutes, Rules, Practical Forms &c. By The other learned judges, (Pollock, C. B., and Alder- Jour Corytox, Esq., of Lincoln's-inn, Barrister-atson and Platt, BB.), however, held that the sluipment Lav.

[H. Sweet, 1855.] was to determine the amount payable as freight. The The law of patents, after having continued unaldefinition of “freight,” they said, was the price pay- tered from the passing of the Statute of Monopolies to able for the carriage of goods from the port of loading the year 1834, has of late years been the subject of to the port of discharge; it was not earned unless they much learned and scientific discussion, which has led were carried from the beginning to the end of the having even gone so far as to assert that the entire sys

to great difference of opinion; some able authorities voyage; and the increase in bulk of this cargo arose ex tem is wrong in principle, and positively injurious to confesso after the shipment. The case was analogous those whom it is intended to benefit. We have already to that of the pregnant females mentioned in Molloy, discussed this interesting question at some length, (16 (1 De Jure Maritimo, 374, 9th ed.), where no freight Jur., part 2, p. 102); but while we maintain the prinis payable for the infants of which they are delivered ciple of patent monopolies to be in the main right, we during the voyage; so, where animals have been shipped, amendment, not only in the practice connected with

do not dispute that the law still requires considerable and some die during the voyage, freight is payable only the grant, but in the application of the principle itself. for those which arrive; and again, where goods, as in The importance to a commercial nation of settling on the case of molasses, have wasted in bulk during the a right basis the office of Government with respect to voyage, freight is payable only for the residue.

trade, and the unsatisfactory state of the existing law of These admitted cases could be explained only on the the latter of great interest to the public. Mr. Coryton

patents, render any suggestions for the improvement of ground that freight was to be calculated and paid on has ably discussed, in an introductory chapter, the chief that amount only which was put on board, carried questions connected with the policy of patents, and the throughout the whole voyage, and delivered at the end defects of the present law, making some useful suggesto the merchant.

tions for its improvement. We recommend the perusal

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of this chapter to every person interested in patents, as A Treatise on the Law of Costs in Actions and other the observations it contains evidently proceed from a

Proceedings in the Courts of Common Lar at Westcareful thinker,

minster. By John GRAY, Esq., of the Middle Temple, In expounding the principles of the existing law of

Barrister-at-Law.

[Lumley, 1854) patents, Mr. Coryton has treated the subject in a manner materially differing from that of former writers. Costs form a considerable item in the results of an

“ Hitherto," says the author, " this subject has been action, and are often the principal, sometimes the only, • treated as a branch of royal franchises conferred object of litigation. Questions connected with them • through the instrumentality of letters-patent, at the occur at every stage of the suit—questions frequently

mere motion of the Crown, the grant in this instance of a subtle and complicated character, which must be • flowing from it in its character of patron of industry, considered and solved by the practitioner. There are ' ingenuity, and skill.

costs interlocutory and costs final, the general costs “An entirely different hypothesis has been here as- of the cause and the costs of specific issues; which, sumed to underlie the structure of patent law--one again, are subdivided into the costs of distributive • which admits of its leading questions being discussed i issues. There is the power of depriving of costs alto

on broad general principles, instead of by reference to gether, and the power of giving them by certificate or * rules framed for purposes alien to inventions, and but order, under the County Courts Acts. Such are only

imperfectly applicable to the contingencies of modern some of the numerous forms in which this subject • trade. It places the grant on the footing of a privi- presents itself. Notwithstanding the constant neces• lege, resulting from a contract in restraint of trade, sity of referring to this branch of our law, no distinct

between the Crown (as representative of the public) treatise had been published upon it since the work of 6 and the patentee, and considers its de facto character Mr. Baron Hullock, some forty years ago, until the as a royal grant to influence the question (as will be appearance of Mr. Gray's book. It might be supposed, seen by the decided cases) to a very inconsiderable à priori, that "costs,” however interesting to attornies extent.

and a large portion of their clients, would make but & “ If simplicity of arrangement be any criterion of dry sort of book-a compilation of statutes, rules of the true solution, the supposition here proceeded on court, and cases, without affording much opportunity ' would appear to be of solid foundation. Referred for logical arrangement, or for the deduction of general * to it, the subject matter,' (or invention, the rules. Far different, however, is the result under the terms being interchangeable), elsewhere so minutely skilful treatment of Mr. Gray, who has reduced the yet variously described, admits of a definition at once “chaotic mass” into order, and, by the aid of great comprehensive and concise-as the material result of industry and learning, has sought out the principles an unpublished improvement in the manufacture of upon which the decisions on the subject ought to rest, • articles for public use.' It is this which forms the reconciling and discarding as authorities those cases and • leading feature in the scheme. The person of the dicta which conflict with or deviate from such prin

patentee becomes in comparison with it a subordinate ciples. In his own words, “it must not be imagined • idea—as the first publisher by means of a specifica-that questions of costs are decided upon mere abstract ‘tion of the invention.' It furnishes, moreover, the biley to the questions which have arisen on the suth. eipiesary provisions, without

reference to general prin ciency of the specification and other points, and which, degree lost sight of, and considerable confusion was as hither discussed, can hardly be said to have been caused by the conflicting and erroneous decisions which satisfactorily disposed of.

ensued; but the Courts of late years, assisted by the “ The theory is no new one. As the compromise of a Legislature, have done much to restore order and congreat contest between sovereign and people, the law gruity. An endeavour has been accordingly made to was settled, on the issue of that contest, with regard give this work a character for something more than a to the great principles it involved-principles which, repository of statutes and cases, by keeping principles with scarcely any exceptions, have regulated the ever in view; and while placing the foundation of the • administration of the grant from the passing of the decisions of the Courts in an intelligible

light, pointing Statute of Monopolies to the present day.”

out unreservedly where those principles appear to have The advantage to patentees from considering ques- been departed from.” (Pref., p.iv). tions relating to patents upon this hypothesis (which The learned author has succeeded in his endeavour, appears to us the correct one) is obvious, as it tends to and has also set an example of the spirit in which trearemove some of the antiquated opinions which have tises upon legal subjects should be conceived and exeoperated to the injury of owners of patents, and it is cuted. We have said that points of some nicety are with pleasure that we remark the adoption by modern not unfrequently raised with regard to costs. As an judges of more liberal principles in deciding the cases illustration, we may refer to a series of decisions tendwhich are brought before them. (See p. 39). ing to shew that a plaintiff is sometimes better off by

The practical part of Mr. Coryton's book will, we not recovering any damages than by recovering some think, find favour with the public on account of the damages; that is, by failing altogether than by success. simplicity of its arrangement, and the clearness with Thus, the statutes passed with a view

of preventing which the law is stated. The second chapter, on the sub- frivolous actions, enact that a plaintiff shall not be ject-matter of a patent, is particularly worthy of notice. entitled to any costs if he recover by verdict less Most of the recent cases are referred to, and the altera- damages than

a certain sum-e.g. 405. (3 & 4 Vict

. tions effected by the last statute (15 & 16 Vict. c. 83) c. 24, s. 2). Where, therefore, in an action of libel

, are, with some slight exceptions, carefully noticed the defendant pleaded not guilty, and several pleas of The last chapter, containing concise notices of the law justification, and the plaintiff recovered a verdict upon of patents in every foreign state of importance, is novel

, all the issues, damages three farthings, it was held that and probably not the least useful part of the work. The he was not entitled to any costs. (Newton v. Rowe, I clear and untechnical style in whích Mr.Coryton's book C. B. 187; Sharland

v. Loaring, 1 Exch. 375). Buf is written, and the practical suggestions contained in it, where one of the issues, going to the whole cause of make it one which may be consulted with advantage as action, was found against him, and so no damages were well by the inventor as the lawyer.

assessed, he was held entitled to the costs of the other issues which were found for him. (Skinner v. Shopper, 6 Bing. N. C. 131). The action in the latter case was for slander, to which were pleaded

a plea of not guilty

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