the penalty inflicted, provided that they describe the offence in the conviction as "aggravated." There is no help out of this dilemma.

NOTES OF NEW DECISIONS. HIGHWAY-SURVEYOR-REPAIRS-LICENCE TO GET MATERIALS FROM PRIVATE PROPERTY, DURATION OF.-The licence granted by justices to the surveyor to get materials from inclosed lands for the repair of the highways, in accordance with sect. 51 of 5 & 6 Will. 4, c. 50, is limited to the necessities of that particular occasion in respect of which the application for the licence is made. Justices in special sessions, under 5 & 6 Will. 4, c. 50, s. 54, granted in 1866 to the then surveyor of highways a licence to take materials for the repairs of the highways from certain lands in the parish of which plaintiffs were the owner and occupier respectively. Materials had been got under that licence down to 1877, when the plaintiffs gave notice to the defendant, the present surveyor, not to get any more. The defendant continued to do so nevertheless, and plaintiffs now brought an action of trespass against him. Held, that defendant had no right to enter upon plaintiffs' land, inasmuch as the licence granted by the justices only extended to the necessities of the particular occasion in respect of which it was granted: (Earl Manvers v. Bartholomew, 39 L. T. Rep. N. S. 327. Q.B.)

MOLD (FLINTSHIRE) PETTY SESSIONS. Monday, Dec. 2.

liable and not their servant and manager. The summonses had been issued under a misapprehension, and although the Act provided that the owner, agent, and manager should all be liable, it clearly applied to their relative duties to the mine; and the servant of a mine owner, like any other servant, could only be responsible to the extent of means placed in his hands by the employer. As a matter of fact the defendant was a mere consulting engineer of the mine, visiting it occasionally at a salary of £1 a week. He had advised that a furnace be placed in the ventilating shaft in connection with a complete scheme of ventilating the whole of the roads and underground workings, but he had no means of compelling the owners to find the necessary funds or follow his advice. The managers of mines in the neighbourhood had become much alarmed at the stringent manner in which the Act was capable of being applied, and if greater pressure were brought to bear upon managers difficulty would be found in procuring men to undertake the duties. The answer to the non-publication of the rules lay in the evidence of the occupation of the managing directors upon the surface.

Collins argued that under the terms of the Act the defendant as manager was liable, that the prosecution were entitled to take either the owner, agent, or manager, and he referred to some cases in Lancashire heard on the previous Saturday in point with the present, in which convictions had taken place against managers.

The JUSTICES, after conferring, held that the owners were liable on both summonses, and that

managers.

ON Monday, the 2nd inst., at Mold Petty Sessions, Flintshire, William Hopwood, manager of the Alyn Bank Colliery, was summoned under the Coal Mines Regulation Act 1872 for that being such manager he did neglect to cause an adequate amount of ventilation to be constantly produced in the said mine, so as to dilute and render harmless noxious gases, so that the working places, travelling roads, &c., should be in a fit state for passing along as provided by the 51st section, General Rule 1. There was a further summons charging Hopwood with neglecting to cause an abstract of the Act to be posted up in some conspicuous place at or near the mine in contravention of the 57th section of the Act.

Mr. Collins, solicitor, of Liverpool, appeared for the prosecution, and Mr. Cartwright, of Chester, appeared for the defendants.

Collins stated the prosecution had been taken up on the report of the inspector of the district by the Secretary of State, who directed these proceedings, and it having been agreed between the advocate that both cases should be taken upon one opening, Mr. Collins proceeded to state the facts found in the evidence afterwards given.

He called Mr. Hedley, the deputy inspector, who said he visited the mine on the 12th Oct. last, when he examined the main roads and working places that he found the ventilation quite insufficient for the purpose of health to the miners. Black damp was present; his candle went out; he called the attention of the underlooker to the ircumstances and condition of the mine. There was a bratice cloth put up across one of the airways, but it was inefficient for any purposes connected with the ventilation. The defendant was the certified manager.

By Cartwright-Had known the colliery five or six years, and the defendant about the same time. There were two shafts sunk-one used for drawing and the other as a ventilating shaft; air ways and roads communicated from one to the other. The shafts had been sunk, and the ways made in a fair, workmanlike manner. There was nothing to lead the air from the down-cast shaft. Doors were required at intervals, and fencing to the working places. A furnace in the up-cast would draw the air, and so would a fan. A fan could not be worked without an engine, and the same engine used for drawing could not be

used for the fan.

The witness was pressed by Cartwright to say whether any proper scheme existed for ventilation, and whether the necessary expense to properly ventilate the mine would not amount to at least £150 or £200, and he was understood to say it would certainly be over £100.

Evidence was then given by Mr. Hedley that that the abstract of the Act was not posted in the mine as provided by the Statute, but he said, in cross-examination, that a Mr. Meldrum, managing director of the company, had the control of the surface, and appeared to him to manage the company's business; he understood that the defendant was engaged at another mine, and visited the Alyn mine once a day. He did not know whether the defendant had £1 a week, or what salary he

had.

Cartwright on behalf of the defence, contended that the evidence disclosed the want of a proper scheme of ventilation, for which the owners were

liable. A case for the Superior Court was granted upon the application of Mr. Collins.

The proceedings were watched with some interest by parties engaged in mining from the neighbourhood.

REAL PROPERTY AND CONVEYANCING.

NOTES OF NEW DECISIONS. COMMON-RIGHT OF FOLD-COURSE-RIGHT OF LORD OF MANOR TO APPROVE.-A foldcourse is a right of common appurtenant of pasture for sheep, against which the lord of the manor can approve under the Statute of Merton. The proviso in the Statute of Westminster the Second, c. 46, does not prevent the lord from approving in such a case, for it only prevents derogation from an express grant. Where issues have been directed in a suit between the parties' predecessors in title, the findings upon the issues will not alone create an estoppel, but must be considered in connection with the order

directing the issues and the decree made upon the findings. Decision of Fry, J. reversed: (Robinson v. Duleep Singh, 39 L. T. Rep. N. S. 313. Ct. of App.)

COMPANY LAW.

a

NOTES OF NEW DECISIONS. RAILWAY-PRIVATE LINE-LEVEL CROSSING -GATES.-The provisions of the Highways Act (5 & 6 Will. 4, c. 50), s. 71, as amended by the Acts 2 & 3 Vict. c. 45, and 5 & 6 Vict. c. 55 (for the better regulation of railways), by which the proprietors of a railroad which crosses highway at a level crossing are compelled to put up gates at such crossing, do not apply to a private line of railway, on private property, used by the proprietors exclusively for their private purposes. Judgment of the court below affirmed: (Matson v. Baird, 39 L. T. Rep. N. S. 304. H. of L.)

RAILWAY-REBATE-CHARGE FOR CARTAGEPREFERENCEEQUALITY CLAUSE- UNDUE TOLLS.-The respondent was a brewer at B. The appellant company and the M. railway company had stations at B. Two firms of brewers in the town had direct communication by sidings with the station of the M. company, who allowed them a rebate, and charged nothing for cartage. In order to compete with the M. company the appellants allowed those two firms a like rebate, and made no charge to them for cartage. They charged cartage to all other brewers in the town, including the respondent, and allowed them no rebate. Held (affirming the judgment of the court below), that this was a breach of the "equality clause' in the Railways Clauses Consolidation Act (8 Vict. c. 20, sect. 90), and was an "undue or unreasonable preference" within the meaning of the Railway and Canal Traffic Act 1854 (17 & 18 Vict. c. 31, sect. 2), and that the respondent could recover the charges so paid by him in an action for money had and received: (London and North-Western Railway Company v. Evershed, 39 L. T. Rep. N. S. 306. H. of L.)

,,

1867, s. 25-CERTIFICATE ESTOPPEL.-Shares in a joint-stock company were issued as fully paidup, by virtue of a contract which was not registered as required by sect. 25 of the Companies Act 1867, and certificates were issued in which the shares were described as fully paid up. Some of these shares were transferred to the respondent as trustee for B., for value, without notice of the irregularity, B. holding the certificates. The company was afterwards wound-up, and the liquidator sought to make the respondent liable as the holder of shares on which nothing had been paid. Held (affirming the judgment of the court below), that the company, and consequently the liquidator, were estopped by the certificates from saying that the shares were not fully paid up, as against a bona fide holder for value without notice: (Burkinshaw v. Nicolls, 39 L. T. Rep. N. S. 308. H. of L.)

STATUTE-REMEDIES OF DEBENTURE HOLDERS. WINDING-UP-COMPANY INCORPORATED BY Parliament cannot be wound-up on the petition of -A waterworks company incorporated by Act of holders of debentures or mortgages created under the powers of the Act. Such holders have no remedy except that of the appointment of a receiver given them by the Act: (Re The Herne Bay Waterworks Company, 39 L. T. Rep. N. S. 324. Malins, V.C.)

BANKRUPTCY LAW.

COURT OF APPEAL, WESTMINSTER. Dec. 6 and 7. (Before BRAMWELL, BRETT, and COTTON, L.JJ. ELMSLIE V. CORRIE. Liquidation-Discharge-Plea in bar-Plaintiff not inserted in debtor's statement, and without notice of meetings.

IN this case the plaintiffs' solicitors sued the defendant to recover the amount of several bills of costs. The defendant pleaded several defences, and, among others, a defence of a discharge under his liquidation. The plaintiffs replied to this defence that they were not included in the list of the defendant's debts in his statement of affairs, that they had no notice of the meetings, and had neither proved nor voted. The case went to trial, when it was admitted for the plaintiffs that, as regarded courts of first instance, they were bound by Heather v. Webb: (see 38 L. T. Rep. N. S.; L. Rep. 2 C. P. Div. 1.)

Judgment was entered for the defendant, and the plaintiffs appealed.

Herschell, Q.C. and F. O. Crump for the appellants.

W. G. Harrison, Q.C. and Petheram for the defendant.

For the plaintiffs it was contended that the provision in sect. 125 of the Bankruptcy Act 1869 that a discharge in a liquidation should have the same effect as an order of discharge in bankruptcy applied only to creditors included in the debtor's statement who had notice of the meetings; that no plea was given by the Act in cases of liquidation similar to that given by sect. 49 in the case of bankruptcy, and that rule 289 pointed to the only protection of a debtor, namely, an injunction in the Court of Bankruptcy, which court alone had discretion to decide whether the creditor was prejudicially affected by the liquidation. And, further, the statement was binding on the debtor, and by rule 306 could not be altered without the consent of a majority of creditors at a meeting summoned by the debtor.

Without calling on the respondent,

Lords Justices BRAMWELL and BRETT delivered short judgments, saying that Mr. Crump's argument had been most ingenious, but the case was a very plain one. The discharge in liquidation being given by the Act the same effect as an order of discharge in bankruptcy, there were no words in sect. 125 to make an exception in favour of a creditor not included in the debtor's statement, and having no notice.

Lord Justice COTTON examined the rules under the Bankruptcy Act at some length, and arrived at the same conclusion.

The appeal was accordingly dismissed. Defence by Demurrer. Lord Justice BRAMWELL asked why this point had not been raised by demurrer?

Petheram said that demurrers to parts of statements were discountenanced by all the judges below, and masters at chambers would not allow them.

The Court intimated that demurrer was a most useful method of raising defences involving points of law going to the root of the action. In this case, the expense of going to trial might have been spared if the defendant had demurred, and BRAMWELL, L.J. said the defendant ought not, in justice to have the costs of so doing.

CHELTENHAM COUNTY COURT.
Friday, Nov. 15.

(Before C. SUMNER, Esq. Judge.)
Re S. REEVES.

Bankruptcy Act 1869–Voluntary payment-Fraudulent preference.

HIS HONOUR read the following judgment in a case before him at the last court, decision upon which was reserved.—Mr. Selfe made an application at the last court for an order requiring the Manager of the Worcester City and County Bank to pay over to the trustee in this liquidation a sum of £65 alleged to have been paid te him by the debtor by way of fraudulent preference. Mr. A. H. Smith showed cause against the motion, and I took time to consider my judgment. The facts were as follows: The debtor, a farmer, being in difficulties in 1876, obtained from the bank a loan of £360, which was secured by the joint note of himself and another person bearing the same name, but not related to him. The note was from time to time renewed, and part was paid. The last renewal took place in April last, when the debtor and Mr. Reeves gave another note for £200 at three months, the debtor promising to pay off £100 at Whitsuntide, when he expected to eceive a legacy which had been left to his wife. In the beginning of June the debtor consulted Mr. Thomas, the auctioner at Tewkesbury, who told him that as an honest man he ought to meet his creditors and come to an arrangement with them. Mr. Thomas also took an inventory of all the debtor's effects and stock, including a mare, foal, and two yearling colts. Mr. Reeves, the surety, was present when this was done, and, finding how matters stood, he put himself in communication with Mr. Williams, the manager of the bank, and on the 7th June the two went together to the debtor, reminded him of his promise to reduce the debt at Whitsuntide, and urged him to fulfil it. The debtor informed them that he was disappointed in regard to his expectation of the legacy, but consented to hand over the mare, foal, and yearling colts to Mr. Reeves in order that they might be sold and the proceeds applied in reduction of the debt due on the note. The

debtor afterwards went to Bristol to endeavour to get further assistance, and during his absence from home, namely, on the 8th June, Reeves went to the farm, received the mare, foal, and colts from the debtor's wife, sold them for £65 to a Mr. Atkins, and took the money to the Bank just after the usual hours for closing, and paid it over to Mr. Williams in reduction of the £200 payable on the note. This payment was made on the Saturday before Whit Sunday. On Tuesday, the 18th June, the debtor filed his petition. It was urged by Mr. Selfe that the payment to the Bank under the circumstances amounted to a fraudulent preference under sect. 92 of the Bankruptcy Act 1869, and was therefore void as against the trustee. Now, in order to bring the payment in question within the section, it is necessary to show that it was made voluntarily and solely with a view to give the creditor receiving it a preference over the other creditors. If any other motive partly or wholly influenced the debtor the transaction is protected, or rather is not made void under the section. This is laid down in a series of cases both before and after the passing of the Bankruptcy Act 1869-which Act did not alter but embodied the law as to fraudulent preferences which previously existed. Thus, in Brown v. Kempton (19 L. J. 169, C.P.) in error, it was held that if a payment is made by a person contemplating bankruptcy, partly under the influence of the pressure and importunity of the creditor, and partly with a desire to give him a preference, it is not fraudulent. And the same doctrine was laid down in Bills v. Smith (34 L. J. 68, Q. B.), and many other cases collected through the industry of Mr. Smith. I stated, at the hearing, that I found as a fact that the payment was made in consequence of the pressure put upon him by Mr. Reeves and Mr. Williams, and with a view to carry out his engagement to reduce his debt at Whitsuntide, and not solely, if at all, by a desire to give a preference to either of those gentlemen, and I do not see how it was possible to come to any other conclusion. For, putting aside the positive oath of the debtor, I fail to see any ground for suspecting a preference of those creditors over any others. Neither was related to him, Leither had, so far as appears, any claim to partenlar consideration, and certainly both took special pains, and used all possible means to induce the debtor to carry out his promise. It was not until this pressure was put upon the debtor that he arranged that Reeves should sell the horses,-the arrangement was not volunteered by the debtor, it was come to after he was urged to reduce his debt as promised, and apparently, and as I think really, in consequence of the pressure. But I felt some doubt whether the pressure which world protect the payment must not be a Iressure to pay a debt which the creditors might, upon refusal to pay, proceed instantly to enforce.

For the promissory note had not arrived at maturity, and if the debtor had declined to do what he was urged to do, the creditors in question could have taken no step which would have put them in a better position, but must have waited until the note arrived at maturity before taking proceedings which would have been practically useful. Upon full consideration of the cases, however, I am of opinion that the fact of the note having still a short time to run does not prevent the pressure which influenced the debtor's mind from operating to take the payment out of the 92nd section. For the test is not (as was pointed out by Chief Justice Cockburn in Bills v. Smith 34 L. J. 68, Q. B.) whether the pressure actually operates to compel payment from the debtor," for the latter, if he knows that bankruptcy is inevitable, must also know that it will protect his person and property against the individual creditor. The effect of pressure, therefore, in legalising the payment is only that it rebuts the presumption of an intention on the part of the debtor to act in fraud of the law," or, having regard to the words of the Bankruptcy Act as interpreted by the cases, it shows that he did not make the payment solely with a view of giving the creditor preference over the other creditors. Again, independently of the pressure put upon the debtor, there was the engagement to reduce the debt at Whitsuntide, which, as I find, operated upon the mind of the debtor in arranging for the sale of the horses by Reeves and the payment of the money to the bank. True, the operation was carried out before Whitsunday, and was therefore earlier than had been promised. But considering that Reeves, when he took the horses, might not have been certain to sell them on that day, and considering also that Whit Monday (the next week-day) was a bank holiday. I think the objection that the payment was made too soon to operate in strict discharge of the engagement, does not fairly arise, and indeed it is not taken at the bar. This motive, then, the desire to fulfil a positive engagement, was sufficient to support the payment even without any pressure by the creditor. This was the sole motive which operated upon the debtor's mind in Bills v. Smith, and it was held sufficient to negative any fraudulent preference. A fortiori when, as in this case, both pressure and an engagement to pay at a particular time co-exist and operate to influence the debtor's mind. I think, therefore, under all the circumstances, that the payment to the bank, though made immediately before and probably in contemplation of bankruptcy, was not under the circumstances, fraudulent, and cannot be set aside. I have treated the case as if a desire to benefit Reeves, the surety, would operate to invalidate the payment, and so far I have stretched a point in favour of the application. The motion, however, was not so framed, Reeves being treated as the debtor's agent, not his creditor or payee in the transaction.

Costs in opposing the applicaton were allowed.
Moores and Romney for trustees.
A. Smith for creditor.

COUNTY COURTS.

know what more he could have done to enable the court to have seen the question raised, or the facts bearing upon it in the notes, and to see whether it was so or not. He did not know that Mr. Watson could have done more, and he did not know what more Mr. Terry could have done. Therefore he did feel surprised when he saw that in the court in which the appeal was made-the Court of Common Pleas, before Lord Coleridge and Mr. Justice Grove-the complaint was made that the judge had neglected to certify the grounds of his decision. His Honour supposed that in the court above they could not find the reasons for his decision. If he recollected aright he reserved judgment because he thought he would endeavour to show as plainly as he could in words what he thought was the point which could be fairly be submitted to the Court of Appeal for the purpose of the court saying whether certain moneys had been paid at the instance and for the purpose of the discharge of sureties was or was not a fraudulent preference. If he recollected rightly he read the case of Marshall v. Lamb, which he considered was the case which he would have to try. With regard to the requirements of the section to which he had referred, it was hardly possible for a plaintiff to know beforehand what defence would be set up, and it was hardly possible for a plaintiff to say what questions of law would arise, and by requiring advocates in the progress of a case to make up their minds definitely what was the particular question of law and what were the facts was to impose upon them the discharge of a duty which had been found too great for the most learned advocates at Nisi Prius.

BIRMINGHAM COUNTY COURT.
Thursday, Nov. 11.

(Before J. MOTTERAM, Q.C., Judge.) ZELLER V. WILLIAM SAYERS. Service of process-Charge against the bailif. THIS was an application made by Duke, on the part of the defendant, Bickley appearing for the plaintiff, and Tanyer for John Wilden, the bailiff, whose conduct was impugned, to set aside the service, on the 1st Oct., of the summons in this case, on the ground that it had not been served personally on the defendant, as required by the rules and orders of the court.

His HONOUR, in giving judgment, said that although such an application would not be of extreme importance, yet, in the present case, the curious nature of the application and its consequences could scarcely be exaggerated, involving, as it did, a charge of grave irregularity against the bailiff employed by the court to effect service of the court's process; and the serious question as to which of the parties had committed perjury, since it was clear that wilful perjury had been committed on one side or the other. After dealing at considerable length with the evidence given on both sides, his Honour said: The point to be determined is-Was the summons in the action served personally on the defendant at his house on the 1st Oct. about, or rather turned, half-past seven in the evening as the bailiff states, or

COMMON PLEAS DIVISION.

Sect. 6 County Court Act 1875.

AT the Bradford County Court, on Dec. 5, his HONOUR (Mr. W. T. S. Daniel, Q.C.) referred to the decision which he gave a fortnight ago in the case of Rhodes, the trustee of Josep Hanson, a manufacturing chemist at Hunsworth, against the Liverpool Investment Company (Limited), in which the question was whether there had been a fraudulent preference. His Honour, who gave his decision on behalf of the plaintiff, said that he had seen from reports in the public papers that on appeal from his decision a complaint was made that he had omitted to do all that was necessary to enable the Court of Appeal to grant a rule nisi if they desired to do so. If he had done so he was very sorry, but he thought he had carefully done everything necessary to enable the court to grant the rule. Both Mr. Terry and Mr. Watson raised before him in the most formal manner all that was necessary to grant the rule nisi. It turned upon the 6th section of the County Court The difficulty of the section was one which he had pointed out often before, and it was one which it was difficult for advocates--however skilful they might be to apply, but he had always endeavoured to support the object of the section. The words of the section were to the effect that, on the trial of any case, snit, or proceeding, the judge, at the requiest of either party, should make a note of any question of law raised, the facts in evidence in relation thereto, and of his decision thereon, and of his decision of the cause, suit, or proceeding. The question was whether there was a fraudulent preference or not, and in the note which he furnished he called it a fraudulent preference. He did not

Act 1875.

same day at the same place on the defendant's wife, by delivering to and leaving with her a copy of the summons--the defendant not being at home at the time-as she alleges. The evidence of the witnesses to be contrasted is that of the bailiff and the defendant's wife, the evidence of the defendant being utterly unreliable and unsafe to support the simplest proposition, and out of the question altogether to support any matter in which he has, as in this, an interest. The evidence of Edwards and of Mason, if of importance, I could rely but little upon, from the doubt I entertain whether they are really speaking But in of the same day as the defendant is. truth it is not of much importance, for, as I have before stated, it is clear everything might and could easily have occurred as the bailiff states it did, even though these two witnesses were speaking truly and accurately. At first I thought the serving of the second summons on the 12th Oct. was a point that weighed against the bailiff, and the foolish mode of entering the service of it in his process service-book also; but, on conThe second sideration, I do not think so now. summons, in my opinion, had better never have been served till after this inquiry had terminated, but as it was done by the order of the high bailiff the bailiff cannot be held responsible for it. The alteration of the entry in the bailiff's book of the service of the first summons on the 1st Oct. had better have never been made; but nothing in the least turns upon this, since it is common ground to both sides that service of a summons on the defendant was properly effected on the 12th, and properly or improperly on the 1st also, depending upon the question-Which is speaking the truth, the defendant's wife or the bailiff? In considering this question the first

thing that strikes me is the very slight motive, if indeed there be any at all, for an act on the part of the bailiff which he must know if discovered would lead to such serious and disastrous consequences to himself the loss of his situation, the commission by him of an indictable offence, and what to many men, I hope to most, would be more serious still, the loss of a character in every way excellent, which for upwards of twenty years he proved by documents entirely to the satisfaction of the court he possessed. Eight or nine years of that time he served in Her Majesty's army, and the last eleven or twelve in the service of the high bailiff of this court, no complaint of any kind ever being made against him-a wonderful contrast, so far as character is concerned, between the bailiff and the defendant. Now, if we look for motives on the other side prompting what has been done, we have not, I think, far to look. The defendant has had dealings with the bailiff's before; there have been executions in his house twice at least, the last in May, with reference to which he acted so disgracefully, if not criminally, as regarded his father's claim, and certainly criminally with respect to Pickering's. It is true Wilden had no part in these proceedings; the evidence on both sides establishes the fact that the bailiff and the defendant had never seen each other till the 1st Oct. as the bailiff states, nor until the 12th as the defendant states. It is not, however, improbable that the defendant had taken a dislike to the class, the Genus bailiff, altogether believing them, as many persons do, the authors of all the mischief happening to them, when they are only the servants of the law employed to perform disagreeable duties in carrying into effect the court's orders. Here, at any rate, is not an improbable motive by which the defendant might be actuated in making this charge against the bailiff, and that he does not at all times think of the serious consequences that may ensue from the performance of wicked acts is proved by a reference to his evidence in this very case. A motive, then, may exist on the part of the defendant for these proceedings without fearing that any consequences would be likely to happen to him or his. It is not so with the bailiff. The only motive suggested that he could possibly have was to save himself the trouble of calling a second time at the defendant's house; but this is so very remote it is not worthy of consideration. It is known, moreover it is sworn to by the bailiff, that he has frequently to call, and does call, several times, upon the parties before he can effect personal service; and, knowing this, if he does not serve it personally, but untruly indorses upon the summons the fact that he has so served it, he knows that he has committed a misdemeanour for which

he would be liable to be prosecuted criminally, and would certainly lose his situation. In the present case he did everything in the usual and ordinary manner as though personal service had been effected on the defendant, by indorsing the service on the back of the summons and entering it in his service of process book, and leaving the same in the high bailiff's office the next morning, who caused to be sent to the plaintiff the usual notice of service (as it was proved was done on this occasion) on the following morning. It now only remains to decide whether the defendant's wife or the bailiff has given to the court the true version of the facts of the case; and I am sorry to be obliged to say I have arrived at the conclusion that the wife is not speaking truly when she asserts that she was served with the summons

between two and three o'clock in the afternoon of

the 1st Oct., and that her husband was not served on that day about half-past seven, as the bailiff alleges, and that he could not have been served for the reason that he was not at home between half-past eight in the morning and eleven o'clock at night. I am afraid she has spoken untruly under the coercion of an unscrupulous husband. The alibi for non-service at the time named by the bailiff, put forward by the defendant, has not always been the same. To the high bailiff he said he had not been served on the 1st Oct., and could not have been, as he was at Redditch on that day, and could prove it by two witnesses. His advocate made the same statement in court when he made application for a day to be named for hearing this case. This of itself would be sufficient to decide the question but for the evidence of the defendant's wife, and upon this, for the reasons I have given, I cannot rely. I entirely disbelieve the defendant's story that he was at Day's Concert Hall on the night of the 1st Oct., and during the time he states. It is incredible if he were there that he could not produce a single person who had seen him there, or seen him going there, or returning thence, or someone even to whom he told he was going there or had been there, but he produces no one. He states in his evidence he told his wife he was going, and promised her he would go, but if the wife is to be believed this is not true, for she denies in her evidence that he told her he was going or promised her he would go, but says that she expected him at seven o'clock in the evening as usual. She says

she believes the first time she knew her husband had been to Day's Concert Hall was the following morning. Now, is it likely, if the service of the summons had been, as she states, made upon her between two and three o'clock in the afternoon of that day, that the defendant, well knowing that such a service was irregular, would not at once have told her, at the very time that she gave him the summons on his return home, that he had been at Day's, and called her particular attention to the fact, and besought her to recollect it as of importance, and looked out for corroborative testimony to support so important a fact on the following morning? But so far from this, the fact that he had been at Day's Concert Hall was never mentioned till he gave his evidence in this court, whilst before then a totally different state of things had been assigned by the defendant to the high bailiff, and by his advocate, to this court as a reason why he could not have been served with the summons as sworn to by the bailiff, viz., that he had been to Redditch all day. This inconsistency besides totally destroying the defendant's own evidence materially damages the evidence of the wife. In considering further the evidence of the defendant's wife I cannot forget that she, in all probability having the same supposed reason, would participate in the same ill-feelings against bailiffs generally as her husband entertained, for she was mixed up a less degree with the false claims both of Pickering and the defendant's father in Sharp's execution, having herself, as the defendant stated, lodged them in this court. Again, there is a most important matter, proving almost incontestably the truth of the bailiff's evidence. The defendant swears he did not know the bailiff till the 12th Oct. whilst the bailiff swears he knew him for the first time on the 1st Oct. when he served him with the summons. Now if the defendant's statement be true, how could the bailiff on the 12th recognise him in the street on the morning of that day? It would be impossible if the defendant's evidence be true, but probable and natural if as the bailiff states he knew him well on the 12th, having seen him and served him with the summons at his house on the 1st Oct. On the whole then I believe the bailiff's evidence. I disbelieve the defendant's entirely, and I disregard that of the wife, which, for the reasons I have given, I do not consider reliable or true. The evidence of the other two witnesses in my view of this case is of no importance except in so far that Edwards proves that the defendant had spoken untruly. I therefore decide to dismiss, and do dismiss this motion, and order the defendant to pay the plain

in

tiff his costs. I am not inclined to order him to pay the costs of the bailiff. I am so displeased with what it is proved by his own evidence the bailiff did in the matter at the time of the service of the summons, and so dissatisfied with the reasons he gives in his evidence for writing his name and address on the back of the summonswhich, in my opinion, are both foolish and untrue -that I shall leave him to bear the expenses of his own defence-which, so far as this motion goes, I consider complete-though his conduct on this occasion has been most reprehensible. What was done by the bailiff was done, as I believe, for the purpose intimated by Mr. Duke, notwithstanding his denial; and if it had not been for his extremely good character I should have requested the high bailiff to dismiss him. I hope that what has occurred will be a warning to him, and that he will not again put in peril that character which years of good conduct has enabled him to possess.

THOMAS PAGE, ironfounder, Watery-lane, sued E. Barnett, insurance agent, Bennett's-hill, to recover £6 6s. for window frames, grates, and boiler fittings supplied to J. Prosser, builder, Balsall Heath, for which the defendant was alleged to have guaranteed payment.

Bickley appeared for the plaintiff, and
Jacob Rowlands for the defendant.

In the course of the case Rowlands produced the following letter written to the defendant by Mr. T. H. G. Page, accountant, of Temple Chambers, New-street, for the purpose of recovering payment:-"I am requested by Mr. Thomas Page, of Watery-lane, ironfounder, to apply to you for payment of the sum of £6 6s. due by you to him, and to inform you that unless the amount, together with 3s. 6d., costs of this application, is paid to me by twelve o'clock tomorrow (Wednesday) legal proceedings will be taken to enforce payment without any further delay."

Upon reading this letter his Honour said :Sitting in this court, I have no power to do as I should like to do with a gentleman who presumes to write as a solicitor only ought to write, and who alone has a right to demand a sum of money for costs of application. But what I will do is this: whatever may be the result of this action,

I will certainly refuse the plaintiff's costs, and if ever I find in any instance a plaintiff having resort to people of this description, who pretend to write as a solicitor alone ought to write, and demand a sum of money, or that which he is not entitled to. I will never allow costs. I cannot punish them for it. They are cunning enough not to bring themselves within my power. If they did I would commit them. But whatever may be the result of this action, whether for the plaintiff or not, the plaintiff shall have no costs.'

Ultimately his HONOUR gave a verdict for the defendant with costs. At the same time he should give a verdict for £5 10s. against the defendant Prosser, which was the amount he had promised to pay. He should give the plaintiff no costs whatever. He should recommend Mr. Rowlands to take counsel with the gentlemen whom the letter concerned, and see what could be done in such cases. He was not sure that it was not a criminal offence.

DARLINGTON COUNTY COURT.
Wednesday, Nov. 27.

(Before E. R. TURNER, Judge.)
BORRODAILE AND OTHERS v. DENNING.

Liability of members of a club which had ceased to exist, inter se.

the club, rules were

THE Darlington North End Club was formed in June 1874, and closed in May 1877. It consisted of shareholders and members, with an elected committee of management. On the formation of amongst the members. After the closing of the printed and circulated club, Robert Borrodaile, John Wharton, and John Kent, the plaintiffs in the present action, for whom Clayhills, of Darlington, appeared, were sued by the Corporation of Darlington in this court for gas and water supplied to the club between Dec. 1876 and Feb. 1877, when judgment was given against the plaintiffs for £17 15s. 11d., the amount claimed, and £4 58, for costs, on the ground that the plaintiffs in this action were three of the committee of the club, to whom credit was given during the time the gas and water sued for was supplied to the club. The plaintiffs had also paid £22 10s. for rent of the club from Nov. 1876 to May 1877, during which time the plaintiffs were also on the committee.

The plaintiffs sought by this action to recover from the defendant, who was the secretary of the

club, for whom Barron, of Darlington, appeared, and also a member of the committee, the contribu tion of £2 5s. 9d. towards the amounts they had been compelled to pay by the decision of this court. It was proved, and not disputed, that the defendant was a shareholder, and that by a resolu tion passed on the 1st March 1876 all shareholders were admitted members of the committee.

The other facts, as proved, appear in the following judgment:

His HONOUR.-This action was brought to recover the sum of £2 5s. 9d., his alleged share of moneys paid by the plaintiffs in obedience to a verdict recovered against them in this court. The exact amount which should be contributed by the defendant is not, it seems, the amount sought to be recovered, as the costs of the suit against the plaintiffs were included, and such costs are not recoverable according to some recent decisions. Baxendale v. London, Brighton, and South Coast Railway (10 L. J.), and a case in the first volume of the Common Pleas Division re ports, except under special circumstances, and certainly never were recoverable in such a case as that now before me. On my last sitting, I heard part of Mr. Barron's argument for the defendant, which for want of time he was unable to conclude. I have formed an opinion adverse to Mr. Barron on the only two points he took, so that I consider Mr. Clayhills is not entitled to any reply. As the defendant's witnesses have not been heard I assume only that all that the plaintiffs' witnesses have stated is true. One of Mr. Clayhills's points on the part of the plaintiffs was that the defendant had admitted his liability. This admission, however, was only made on a condition which was not performed, and even if it had been made uncon ditionally I do not see how I could make the defendant liable on it. No doubt when an admission is made of a part it is strong evidence against the defendant; but where the question is one rather of law than of fact, I do not see of what use it can be to the other side, unless he has been induced as a natural consequence of it to alter his position, in which case he may be estopped by his conduct from asserting anything The points inconsistent with his admission. which Mr. Barron argued were-first, that the club was an illegal association; and second, that such an action could not be brought on an isolated transaction and a judgment against the plaintiffs following on that transaction. As to the first of these grounds the same point was taken in a former case before me respecting this very club, and I held that the club was not illegal. That decision was affirmed on an appeal, in which