1876 NEWTON v. SHERRY. because the notices did not in terms call upon the next of kin to come in and claim. The advertisement, however, follows the very words of the statute, and gives notice "that all creditors and other persons having any claims or demands against or upon" the estate of the intestate, are required "to send in full particulars and proof of their claims or demands upon the estate of the deceased" by a given day. It seems to me that that was a sufficient notice to include a person having a claim as next of kin. Then it is said that the notice was not published in all necessary places. In dealing with this matter, I wish to be very guarded. I agree with Mr. Reid, that it is important that the estates of intestates should not be distributed without every reasonable means being taken to give notice to all who may have claims, whether as creditors or otherwise. Save in some exceptional cases, it is usual to confine these notices to the London Gazette and some English newspapers. If, however, there be any reasonable ground for supposing that there is a claimant residing in a foreign country or in one of our colonies, the notice should be advertised there also. Therefore, if the administratrix here had any reasonable ground for believing that the daughter of Mrs. Gayler was alive in America, she ought to have advertised in some newspaper or newspapers there. But, seeing the unpleasant circumstances under which she left her family, having changed her name and gone abroad, and there being no evidence that the administratrix had reason to believe that she was in America, I think the advertisements were not improperly confined to this country. There Then comes the question whether the administratrix had notice before she distributed the assets that her niece was alive. certainly was evidence upon which a jury might reasonably have found that she had no notice. I feel it to be so important that persons having claims against the estates of testators or intestates should not upon light grounds be shut out from the opportunity of asserting them, that I should have been inclined to send this matter back to be ascertained by a jury, had it not been the wish of both sides that that expense should be avoided. Under these circumstances, my Brother Lindley will consent to have the administratrix, and her only, examined before him. And, if he reports to us that he is satisfied that she had no such notice, the verdict will be for the defendant; if otherwise, the verdict for the plaintiff will stand. ARCHIBALD, J. I will only add as to the eighth plea and the statute upon which it is founded, that I think s. 29 is not to be read in the limited sense suggested by Mr. Reid. The earlier part is plainly intended for the protection of executors and administrators, and to enable them safely to make a distribution of their testator's or intestate's estate in a reasonable time. At one time I was inclined to think there was some substance in the distinction suggested between creditors and persons claiming as next of kin. But, upon the whole, I think the section was intended to embrace all classes of claims, especially when I find in the proviso at the end the word "claimant" added to "creditor." The reason of the statute is as applicable to claims to distributive shares of the assets as to claims for debts and demands in the nature of debts. The same need of protection existed as to the one as it did as to the other. As to the form of the advertisements, I entirely agree with my Brother Brett. I also agree with him as to the importance of their being circulated in such a manner as to give all parties interested every reasonable notice to come in and claim. Whether the notice was properly advertised or not is a question of degree, and depends upon whether under the circumstances of each particular case such reasonable opportunity has been given. Here, the estate to be administered was in England: the family were all English and all that seems to have been known of the claimant was, that she had changed her name and gone away from home, and had not been heard of for several years. There was in my opinion no necessity for advertising otherwise London Gazette and in the English newspapers. Upon the whole, I think the course proposed by my Brother Brett is the reasonable and proper one. than in the LINDLEY, J. I am of the same opinion. As to the question on the application of s. 29 of 22 & 23 Vict. c. 35 to claims by next of kin, it seems to me that it would be putting too narrow a construction upon that enactment to hold it to be confined to persons claiming to be creditors. The real object of the section was this, not merely to secure an indemnity to executors and administra 1876 NEWTON v. SHERRY. 1876 NEWTON V. SHERRY. tors, but for the benefit also of persons having claims against the estates of deceased persons, by enabling the executor or administrator to administer the estate without the expense and delay of a Chancery suit. If proper advertisements are issued for "creditors and others" (that is, persons having claims upon the assets, whether as creditors or otherwise,) to come in and substantiate their claims, the executor or administrator is not liable for parting with the assets in a due course of administration amongst those of whose claims he has notice. If, therefore, this had been a claim against the administatrix herself, I think she would have been protected by the Act. Then remains the question raised by the demurrer to the eighth plea, viz. whether the statute applies to actions on administration bonds against the sureties. If this demurrer were to succeed, the result would be that the defendants would have recourse over against the administatrix. I cannot think that would be a result that could have been contemplated by the legislature. Looking at the language of 22 & 23 Vict. c. 35, s. 29, I think the form of the notice was sufficient. As to the places where the advertisements were published, that will depend upon what may appear upon the inquiry which is to take place before me. Cur, adv, vult. Feb. 26th. LINDLEY, J. This case stood over for the examination and cross-examination of the administatrix before me as to whether or not, at the time she parted with the assets, she had notice or knowledge that the claimant, the daughter of the intestate, was living. That examination and the documents which were produced before me satisfied me that she was not aware that her niece was then living. The Court having already decided that the advertisement issued by the administratrix was sufficient in form and properly published, the rule will be absolute to enter a verdict for the defendants on the sixth, seventh, and eighth pleas; and there will also be judgment for the defendants on the demurrer. Rule accordingly. Solicitors for plaintiff: Wright, Bonner, & Wright. [IN THE COURT OF APPEAL.] FISHER v. THE VAL TRAVERS ASPHALTE COMPANY. Appeal-Divisional Court-Judge-38 & 39 Vict. c. 77, s. 4. An appeal can be heard by the Court of Appeal, although one of the judges then in the Court is a judge of the Division in which the action is pending, if he has taken no part in making the order appealed from. THIS was an action in the Common Pleas Division, and the plaintiff had obtained a verdict for damages. The defendant then moved before a Divisional Court of that Division, consisting of Lord Coleridge, C.J., Archibald, J., and Amphlett, B., who granted a rule to shew cause why there should not be a new trial, but as to part only of the damages. Philbrick, Q.C., applied by way of appeal, for a rule generally, but mentioned a doubt whether the appeal could be heard before the Court as then constituted (James, L.J., Mellish, L.J., Baggallay, J.A., and Brett, J.), Brett, J., being one of the judges of the Division in which the appeal rose. [MELLISH, L.J. There has been a question raised as to the meaning of s. 4 of the Act of 1875 (1), viz. whether a judge of the Court of Appeal is not disqualified from hearing an appeal in an action pending in the Division of which he is a member. There seem to be only two ways of giving a meaning to the section, and either the words "and is" must be rejected, or else "Divisional Court" must be read as "Division." It seems to me that the former way is the fittest, for there can be no reason why a judge should not hear an appeal from a judgment or order in the making of which he had taken no part.] JAMES, L.J. We are all of opinion that the Court as at present constituted, can hear this appeal. (1) 38 & 39 Vict. c. 77 (Judicature Act), s. 4: "Section 54 of the principal Act is hereby repealed, and instead thereof the following enactment shall take effect: No judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judg 1875 Dec. 15. 1875 FISHER v. VAL DE TRAVERS ASPHALTE Co. MELLISH, L.J., BAGGALLAY, J.A., and BRETT, J., concurred. Their Lordships then heard the appeal, and dismissed it. 1876 April 28. CRUIKSHANK v. THE FLOATING SWIMMING BATHS COMPANY. The old law and practice with regard to references to arbitration are not abolished by the Judicature Act, and consequently where a cause is referred to an arbitrator for decision according to the old practice, the arbitrator cannot be called on to report to the Court with regard to the matter referred to him, but his decision is final. An order was made that a cause should be referred to the master, and that the subsequent proceedings should be continued and concluded according to the new practice : Held, that the reference was not merely for report by the master under the new powers given by the Judicature Act, but for decision, and that the master could not be made to report to the Court, but his decision was final. In this case, the action having been commenced before the Judicature Act came into operation, an order had been made at Chambers after it came into operation, by which it was ordered that the defendants were to be at liberty to deliver a counter-claim and to make certain amendments in the pleas, and that the action should be referred to a master, and the subsequent proceedings be continued and concluded under the new practice. The master had heard the case, and made his certificate, and the defendants applied to set aside that certificate, and that the master should be ordered to report to the Court in relation to the matters referred to him. Holl, for the defendants, in support of the application. The order directs that the reference should be under the new practice, and by the new practice the referee, whether official or special, is not to decide finally, but only to report to the Court: Judicature Act, 1873, 88. 56, 57. The intention was that the Court should have some control over the arbitrator, and that the hardships |