fication. At the trial, A's counsel, during his reply upon the whole case, elected to be nonsuited. Afterwards A brought another action against the same defendant in respect of the same grievance: the defendant pleaded a justification, and obtained a rule nisi to stay proceedings until the plaintiff should have paid the costs of the first action, and to compel the plaintiff to give security for the costs of the second action. The Court made absolute so much of the rule as related to the stay of proceedings, and discharged that part which required the plaintiff to give security. On the last day of Hilary Term, Philbrick obtained a rule in the Bail Court, calling on the plaintiff to show cause why all proceedings in this action should not be stayed until all the costs in a former action between the same parties were paid to the defendant; and why the plaintiff should not give security for the costs in the second action. The defendant was the proprietor of a newspaper. The plaintiff was the secretary of a volunteer rifle corps, and in the course of the year 1862 he brought an action against the defendant to recover damages for a libel published in the defendant's newspaper, wherein the plaintiff was charged with embezzling the funds of the corps of which he was the secretary. The defendant pleaded a justification, and the cause came on for trial before Willes, J., at the Middlesex Sittings after Michaelmas Term, 1862. Witnesses were called on both sides, and the trial lasted two days. counsel for the plaintiff, in the course of his reply upon the whole case, elected to be nonsuited. On The the 31st December, 1862, the plaintiff caused the defendant to be served with a writ, and on the 13th January a declaration was delivered, which was a facsimile of the declaration in the first action, except that it was headed, "In the Queen's Bench," instead of "In the Common Pleas." On the 23rd January, the defendant obtained further time to plead, and between the 23rd January and the 30th January he delivered a plea of justification. On the 30th January, the defendant obtained the above rule. The plaintiff had not paid to the defendant any of the costs of the first action, and it appeared from the affidavits that he was an uncertificated bankrupt. Daly now showed cause. In Chitty's Practice (11th ed.), p. 1370, it is stated, as the result of the cases there collected, that if the second action "appear to have been brought oppressively or vexatiously, the Court or a Judge will stay proceedings until the costs of the former action be paid." The Court, therefore, will not make this rule absolute, unless it sees some peculiar circumstances of oppression or vexation, and it is submitted that none such appear in the present case, Danvers v. Morgan, 25 L. J. C. P. 144. The defendant, having obtained further time to plead, and having afterwards pleaded a plea which imputes a CROMPTON, J.-This is entirely a matter for the discretion of the Court, and, looking at the circumstances of this case, and at the position of the plaintiff, we think that we ought, in the exercise of our discretion, to make the rule absolute to stay the proceedings in the second action until the costs of the first action are paid. The other part of the rule which requires the plaintiff to find security for the costs of the second action will be discharged. BLACKBURN and MELLOR, JJ., C. P. 6 MAY, 1863. concurred. Rule accordingly. Bankruptcy-Deed of Composition. sect. of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), A deed of composition is not valid under the 192nd unless it purports on the face of it to be for the benefit of all the creditors, and not merely for the benefit of those who execute it. In this action execution had been issued on the judgment obtained by the plaintiff, and an application made to a Judge at Chambers to set it aside, on the ground that the defendant had been discharged from the debt by a composition deed entered into with his creditors under the 192nd sect. of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134). The Judge stayed execution, on the payment of 707. into Court, to abide the result of an application to the Court. Holl, on behalf of the plaintiff, obtained a rule for the payment of the money, on the ground that the deed was not a valid one within the 192nd sect., as it only purported on the face of it to be for the benefit of those creditors who executed it. Mellish, Q.C., and Trevelyan, showed cause, and contended, that though the deed only purported to be for the benefit of those creditors who executed it, yet the effect of the statute was to render it binding on all, and for the benefit of all. Holl, in support of the rule, was not called upon. Legge v. Cheesebrough, 5 C. B. (N. s.) 741; Walter v. Adcock, 31 L. J. Ex. 380; Re Shettle, 1 N. R. 151; s. c. 32 L. J. Bky. 37; G Re Rawlings, 1 N. R. 149; s. c. 32 L. J. Bky. 27; that this demand could only be enforced by action, Harrhy v. Wall, 1 B. & A. 103; Ellis v. Ollave, 3 Salk. 60; Feltham v. Cudworth, Com. 112; Com. Dig. tit. " Pleader," 2 G. 6. I ERLE, C.J.-I am of opinion that this deed is not a valid one under the 192nd sect. It is between the debtor and those creditors who subscribe the deed, and purports to be for their benefit. There is no provision on the face of the deed for those creditors who do not sign it. I shall not now attempt to go into the principle, but decide according to all the recent cases. refer particularly to the judgment of Lord Justice Turner in Re Rawlings and Re Shettle, and that of Baron Bramwell in Walter v. Adcock, that the deed to be valid must be, and purport on the face of it to be, for the benefit of all the creditors. The Court is indebted to Mr. Trevellyan for bringing forward the historical part of the question, in the old cases cited by him; but the decisions there are contrary to the current of modern authorities. Lands Clauses Act-Compensation-Award. The award of an arbitrator under the 68th sect. of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), that a certain sum is due for land injuriously affected, has the same effect as the verdict of a compensation jury, which has been decided in Reg. v. London and North Western Railway Company, 3 E. & B. 443, to settle the amount only, and not the liability of the parties. Therefore, if the defendant refuse to pay the amount awarded on the ground of non-liability; the plaintiff must enforce his claim by action, and not by an application to the Court to enforce the award. In this case the plaintiff had claimed compensation on the ground that his house had been injuriously affected by the defendants. The dispute had been referred to arbitration, under the 68th sect. of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), which provides that the amount of compensation is to be settled either by arbitration or by a jury. The arbitrator had awarded that the defendants should pay the plaintiff certain sums of money. F. Russell, on behalf of the plaintiff, now moved to enforce the award by compelling the defendants to pay the amount awarded. Horace Lloyd (Hawkins, Q.C., with him) showed cause, and contended, that on the authority of and that the award was only to determine the amount due (if any), and not the liability of the defendants. A tender having been made by defendant to do work for a certain price, plaintiff accepted, but added the words:"We will have to complete the same in 12 months."-"We will begin work on Monday." Held, that these words amounted only to a direction, and not to a condition. This was an action brought to recover the sum of 901. for breach of contract. At the trial, before Mr. Commissioner Gurney, at Liverpool, it appeared that the plaintiff, who had contracted to build a house at Woolton, in Lancashire, requested the defendant to send him a tender for the Plaintiff gave masonry work connected therewith. him the quantities for the work, and referred him to his architect for the plans and specifications. The quantities did not quite agree with the specifications, and defendant in consequence advised plaintiff not to sign a binding contract. But notwithstanding this disagreement the defendant sent in a tender, as follows: "Mr. Joseph Crowther. "Wavertree, Sept. 12, 1861. "SIR,-I accept your tender for the mason and Reg. v. London and North Western Railway Com-walling of Mr. Bushby's house, Woolton. We will pany, 3 E. & B. 443 ; s. c. 23 L. J. Q. B. 185; have to complete the same in 12 months. I shall be glad to see you to-morrow as we will begin work on Monday. "Yours obediently, "WM. TYSON." After this, a correspondence took place in consequence of the defendant declining to execute his contract; and the result was, that the plaintiff had to employ another to do the work, who charged for doing it nearly 1007. more than the price contracted for by the defendant. The learned Judge left it to the jury whether the terms of the acceptance introduced any new condition, and the jury found for the plaintiff, damages 907. A rule having been obtained by Brett, Q.C., calling on the plaintiff to show cause why the verdict found for the plaintiff should not be set aside, and a nonsuit entered, on the ground that there was no contract between the plaintiff and defendant in consequence of the acceptance not being a simple acceptance, but one introducing new terms, Kemplay now showed cause. He contended that the contract was complete, as the words of the acceptance, which were objected to, did not amount to a condition, but only to a direction. Littler, in support of the rule, contended that those words were material conditions as to the time when the work was to be done. Otherwise, the work would not have been repudiated. He cited Wontner v. Sharp, 4 C. B. 404; Kennedy v. Lee, 3 Meriv. 454; and had given notice of the change of possession to the wharfinger of the public wharf, and had also sold some of the timber : Held, that the goods had thereby been actually delivered by A to B, and did not come within the latter part of sect. 7 of the 17 & 18 Vict. c. 36. This was a case under the Interpleader Act (17 & 18 Vict. c. 36). It appeared from the affidavit of Benjamin Farmer, of Brecon, a sheriff's officer, that by writ of fi. fa. against the goods of H. Ernest, and sheriff's warrant, he had on the 10th July taken possession of the disputed goods; and had on the same day been served with a notice from the plaintiff, W. H. Gough, that all the said goods were plaintiff's. Upon a summons taken out, an order for an interpleader issue dated the 17th July, 1862, was made, to try whether the goods were the property of the plaintiff or defendant. At the trial, before Bramwell, B., at the sittings after last Hilary term, it appeared that H. Ernest, being connected with the management of some estates, in 1859, had some timber, &c., lying partly at a private wharf connected with a house belonging to him at Brecon, and partly on the public walk at the side of the canal, hard by. He let the house, with furniture, to one Thompson, who gave it up in 1862. In March, 1862, Gough, the plaintiff, was engaged by Ernest to prepare a specification, and superintend repairs at some of Ernest's houses, including that which Thompson had had, and which Gough occupied whilst superintending the repairs. Gough was to use the timber on the wharf, and for that purpose had the keys of the yard where it was. The Oriental Inland Steam Company v. Briggs, 30 On the 24th of March, Gough and Ernest met in L. J. Ch. 243. POLLOCK, C. B.-I think the direction of the learned Commissioner correct. Both the tender and acceptance were right. The words objected to were merely an instruction, not a condition. The rule must, therefore, be discharged. MARTIN, B., concurred. London, when the following agreement was made: "An agreement made the 1st of April, 1862. “Mr. H. Ernest agrees to sell Mr. W. Hodges Gough, who agrees to purchase all the timber (rough and converted), barrows, spokes, elves, gates, and other articles and materials and effects, of the said H. Ernest, upon his private and upon the public wharf at BRAMWELL, B.—I concur, because I do not believe Brecon, and also his timber waggon there, and hay on that either of the times mentioned amounted to a condition. Rule discharged. Cae Bear, at the price or sum of 3007., to be paid for by the acceptance of the said W. H. Gough at four months' date. The said H. Ernest agrees to pay all rent and other charges upon the said timber and materials at Brecon for a period of six months, within which time the said W. H. Gough is to remove the same. The said W. H. Gough is to have the use of Interpleader-Bills of Sales Act-17 & 18 Vict. the apartments of the said H. Ernest, and of his ser Ex. 28, 29 APRIL, 1863. } GOUGH v. EVERARD. c. 36. A entered into a written contract with B for the sale of timber, lying partly in a public and partly in a private wharf, adjoining a dwelling-house belonging to 4, but temporarily occupied by B: and into another written contract for the sale of the furniture in the dwelling-house. B had the key of the private wharf, vant there, at any time during the said six months, free from charge, to facilitate his sale and removal of the said timber, &c. "1st April, 1862. H. Ernest, H. ERNEST, Ernest then sent to Gough, at Brecon, a bill for 3007., which Gough returned accepted on the 3rd of April. On the 24th of March, Gough had possession of the key of the yard, and Ernest told him that the key was then his. From that time to the seizure on the 10th of July, he continued to hold the key; and he also gave notice to the wharfinger of the change of ownership of the timber lying at the public wharf. Gough dealt openly with, and sold some of the timber, and part of it had been taken away by the purchasers at the time of the execution. With respect to the furniture the following agreement was come to :-"The undersigned, H. Ernest, agrees to sell, and the undersigned, W. H. Gough, agrees to purchase, all and singular the office and household and other fixtures, fittings, furniture, goods, chattels, and effects, whatsoever, in and about the house and stable, garden and premises, in Glamorganstreet, Brecon, lately occupied by Mr. T. W. A. Thompson, at the price of 501. Mr. Gough is to be at liberty to hold possession of the said premises without charge until the completion of the repairs to the property of Mr. Ernest in Glamorgan-street, and either to remove or sell the property above-mentioned by auction or otherwise on the premises. The said 507. is to be paid as follows:-Mr. Gough is to pay the amount due to the servant for wages, board, and other disbursements, up to the end of the current month of service; and further, 21. 18s. 6d. for one month's wages and board by way of warning: also to pay any rates, taxes, &c., due upon the premises; and to carry the balance, if any, to the credit of his building account, Brecon, against Mr. Ernest. Dated this 19th June, H. ERNEST." 1863. Gough was already in possession of this furniture under the former agreement. The bills accepted by Gough in payment for the timber, building materials, and furniture, were duly paid on arriving at maturity. Under these circumstances the jury found for the plaintiff; leave being reserved to move to enter the verdict for the defendant, either wholly or in part. A rule having been obtained accordingly, Shee, Serjt., and Day, now showed cause. They contended that the agreements between Ernest and Gough, under which the latter claimed, were not bills of sale, and that the agreement of April, 1862, was an ordinary agreement of bargain and sale. Under sect. 7 of the Bills of Sales Act, "the expression 'Bill of Sale' included bills of sale, assignments, transfers, declarations of trust without transfer, and other assurances of personal chattels, and also powers of attorney, authorities or licences to take possession of personal chattels as security for any debt, but not the following documents, that is to say, assignments for the benefit of the creditors of the person making or giving the same; marriage settlements; transfers or assignments of any ship or vessel or any share thereof; transfers of goods in the ordinary course of business of any trade or calling: &c." And the only term under which this agreement could come was the word "transfer." It was clearly not a bill of sale in the ordinary sense of the term; for that imports a document under seal, which by its mere execution proves the property: Allsop and Others, v. Day and Another, 7 H. & N. 487. : That in the present case, the bills of exchange were not to be delivered till all that had been agreed for was completed and that the property was not within the latter part of sect. 7, whereby personal chattels shall be deemed to be in the "apparent possession" of the person making or giving the bill of sale, so long as they shall remain or be in or upon any house; mill, warehouse, building, works, yard, land, or other premises occupied by him, or as they shall be used or enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person." Karslake, Q.C., (with him Pinder), in support of the rule, contended that as there was here no apparent change of possession, and as the goods remained in the house, or upon the premises occupied by Ernest, they belonged to the defendant. They cited Sheridan v. Macartney, 4, C. B., Irish Rep., and 5 L. T. (N. s.) 27. 29 APRIL, 1863. was, upon There POLLOCK, C.B.-We are all of opinion that this rule should be discharged. At the trial the question whether the transaction was bonâ fide; and investigation the jury found that it was so. was then a question, whether the statute made the transaction void, or whether according to the terms of the Act possession on the part of the buyer made any difference. The character of the instrument is unim portant: I cast no doubt upon it. As to the property in dispute, there was complete possession on the part of the buyer, so as to make it beyond the reach of creditors. There were goods at a public and private wharf. As to those at the public wharf, the plaintiff had complete control over them, and they were in his possession as much as they could be. As to those at the private wharf, they had been delivered to the plaintiff, and he had them as much in his posses sion as possible. As to the furniture, he had it as much in his possession as possible. This is a question of law, not of fact. The case of Sheridan v. Macartney (5 L. T. (N. s.) 27), is widely different from the present, and it was professedly decided on special grounds. MARTIN, B.-I am of the same opinion. This is a case between the vendor and vendee of ascertained chattels agreed to be sold for an ascertained sum. The bargain and sale being made, at Common Law the possession follows the property; and by transactions At the trial before Bramwell, B., at the Guildhall, last Hilary Term, the jury found that the plaintiff had professionally attended the deceased, and their verdict was for the plaintiff. There was no proof of any special contract, or of any promise to pay; and a rule having been obtained by Lush, Q.C., upon leave reserved, to enter the verdict for the defendant, on the ground that the plaintiff was not, in the absence of a special contract, entitled to recover, Gough became the owner of these goods. The Bills defendant being sued as executor of the said Henry of Sales Act is a very valuable one, but whether or Budd. not it is applicable to this case seems doubtful. At the time of the seizure Gough was in the actual possession of this property. The chattels sold were partly timber lying at a public wharf. When it was sold, Ernest had nothing more to do with it, and the property was in the vendee. Gough proposed to sell it, and he took persons there to see it, who must have known that it was his. Where then was the apparent possession in the vendor? He had no concern or business with it of any kind. Gough was a much in possession as possible. As to the goods in the yard, the case is still stronger. The plaintiff was in possession of the yard, and his son had the key of it, the timber being there. As to the furniture, Gough was living in the house, and occupying his own furniture; and how that could be taken from him, and given to the judgment creditor, I cannot see. BRAMWELL, B.—This rule should be discharged. I give no opinion as to the documents. The Bills of Sales Act only applies where property shall be in the possession, or apparent possession, of the person making it. As to the furniture, there is really no ground for saying, that it was in the possession, or apparent possession, of Ernest; and the same observation applies to the timber. The timber at the wharf was not in his apparent possession. As to the interpretation clause of the Act, it struck me at the trial, that if the timber at the private wharf was on premises belonging to Ernest, it was his. The interpretation clause says, that goods shall be considered to be in the apparent possession of the vendor, notwithstanding that formal possession shall have been taken by the vendee. Here, however, a great deal more than mere formal possession had been taken. We are practically differing from the decision of the Common Pleas in Ireland. The true construction of the Act is to qualify it as I have done. In the first case, the Bills of Sales Act worked the most grievous injustice. Rule discharged. GIBBON V. Budd. Medical Act, 1858 (21 & 22 Vict. c. 90)Right of a Registered Physician to Sue for his Fees. A physician may, since the Medical Act, 21 & 22 Vict. c. 90, without an express contract with his patient, recover his fees for professional services, if he be duly registered under the Act, and be not prohibited by any bye-law of his college. This was an action by a licenciate (not a fellow) of the College of Physicians, to recover fees for medical attendance upon ono Henry Budd, deceased, the Parry, Serjt. (with him Cole) showed cause. The question is, whether since the Medical Act, 1858, a physician registered pursuant to that Act is entitled to recover his fees without an express contract. It is admitted that he could not recover before the Act, Veitch v. Russell, 3 Q. B. 928. It is submitted that he may now recover under the 31st sect. of the Act, unless the College of Physicians has passed a bye-law prohibiting fellows or members from recovering fees under that section. In this case such a bye-law was passed with respect to fellows only, and the plaintiff, though a member of the college, is not a fellow, and is not, therefore, affected by the bye-law. The object of the Act seems to be to get rid of the distinction made in Veitch v. Russell. Lush, Q.C., and Dowdeswell, supported the rule. The object of the Act was, as shown by the preamble, to impose registration upon medical practitioners, in order that the public may be enabled “to distinguish qualified from unqualified practitioners.” They contended that the Act left the right of action as it stood before, and that, in the absence of an express contract, a physician was still unable to recover; on which right, moreover, the Act now imposed a restriction, viz., registration. The object of the Act was considered in Attorney-General v. The College of Physicians, 30 They cited, also, Kennedy v. Broun, 1 N. R. 58; 275; the attendance of the plaintiff was not in the capacity ever, removes this restriction, and, if the requirements of the Act are satisfied, physicians are now in a position to sue for and recover their fees for professional services. We are all of opinion, that this rule should be dis |