Giffard, Q. C., and Waller, objected that the Court had no jurisdiction as to the damages that claim being consequential only to the specific performance which had been disposed of before the hearing, 21 & 22 Vict. c. 27, s. 2; the suit was therefore reduced to one for damages only. WOOD, V.-C., considered that the Court had jurisdiction. He could not hold that, where there was a clear right to specific performance, and the bill prayed for damages in addition to specific performance, the defendant might, by giving one part of the relief asked before the hearing, deprive the plaintiff of his right to the other part at the hearing: or send him to law for it. The Court having once acquired jurisdiction was able to do full justice between the parties. The plaintiffs must have their costs up to and including the hearing. As the parties preferred a jury, an issue as to the amount of damages was directed to the Queen's Bench to be tried before a London special jury. Note.-See Wedmore v. Mayor, &c., of Bristol, 1 N. R. 120, 187. Howe v. Hunt, 10 W. R. 813. Holroyd, Comr. } Re 14 APRIL, 1863. Bankruptcy-Trader-Debtor Summons - Deed of Composition Bankruptcy Act 1861, ss. 192, 199. A trader-debtor summons, taken out previously to the registration of a deed of composition, executed under sect. 192 of the 24 & 25 Vict. c. 134, allowed, notwithstanding that it is made returnable after the registration of such deed. This was a trader-debtor summons under sect. 78 of the Bankrupt Law Consolidation Act, 1849. A deed of composition with his creditors, under seet. 192 of the Bankruptcy Act 1861, had been executed by the debtor, but before registration the above-mentioned summons had been taken out. This summons was made returnable after the registration of the deed. Lawrence (solicitor), for the debtor, applied to have the summons dismissed. He argued that as a deed, when registered, was, under sect. 199 of the Act of 1861, a sufficient ground for dismissing a petition of adjudication of bankruptcy, so it ought to be held a sufficient ground for dismissing a summons, which was merely a commencement of proceedings towards adjudication. HIS HONOUR held that the words of the Act were conclusive, and that the debtor, having been summoned to appear, must either admit the debt, or Bankruptcy-Release from Custody-Misdescription of Bankrupt. A misdescription of a bankrupt in a petition filed by himself renders the petition liable to be dismissed. This was an application for the discharge of the debtor, who had filed his own petition, from custody. In the petition he was described as a merchant of Great Knight Rider Street. It appeared, however, that he had contracted one or more of his debts whilst residing at Great College Street, Westminster. Lawrance (solictor), for a creditor, asked that the petition might be dismissed, on the ground of insufficient description. Denney, for the bankrupt, contended that no creditor had been misled by the misdescription of the bankrupt, and that it was a case for the amendment, not for dismissal, of the petition. HIS HONOUR, however, held that the bankrupt in filing his own petition should have kept himself strictly to the rules of the Court, and dismissed the petition. The facts of this case were as follows: In 1841, Smyth and Mawson were appointed assignees of William Woodley, an insolvent. Smyth solvent's .estate. Subsequently, in 1845, Van Heythen acted not only as assignee, but as solicitor to the inwritings then relating to it were delivered to him. was appointed solicitor to the estate, and all deeds and In 1848 Mawson died, and in December, 1850, Van Heythen also died. Subsequently to that date Mr. Greatorex was appointed solicitor, the understanding between him and Smyth being, that he should look to the estate, and not to Smyth for costs; and a sum of between 400l. and 500l. was afterwards claimed by Greatorex for costs. In 1861 Smyth was removed for misconduct from his office of assignee, and the but were to be treated just as if they had been present assignee appointed. destroyed or burnt. The order would therefore be unreasonable, and could not possibly be complied with. Sargood applied, under the 65th sect. of the 1 & 2 Vict. c. 110, on behalf of the present assignee of the estate of Woodley, the insolvent, for an order upon Smyth for the delivery up by him of certain papers and documents which had come into his possession as such assignee, and still remained in his possession, and were necessary for the administration of the insolvent's estate. It would be alleged that these papers, &c., were no longer in the possession of Smyth, and that he had delivered them to Greatorex, who had a lien on them for costs. This was no answer to the application. Smyth, as assignee, was in a fiduciary position, and had not done his duty in parting with the deeds. The proper course was to summon Smyth before the Court to produce the papers, and if there was any valid lien on the papers, &c., he would have to pay it. Bagley, contra, submitted that under the circumstances not only were these papers, &c., not in the possession of Smyth, so that he could deliver them up, HIS HONOUR, after stating the facts of the case, said that he did not think that what he was here asked to do was within the intention of the Act. But clearly, whether it was or not, there was a discretion in the Court either to accede to or refuse this application, and the latter course he considered was the proper one to adopt. Moreover, applications under this section should at least be made within a reasonable time, and in this case the papers, &c., had gone out of the hands of Smyth into those of Greatorex, long before the removal of the former from his office of assignee. The words of the statute were, "shall remain in his or their hands." A very long time had elapsed since these papers, &c., were in the possession of Smyth. In dismissing the application now, His Honour said that he would be willing to grant a summons for the examination of Greatorex, in order that the assignee might ascertain what lien he had on the papers, &c., and that evidence might justify another form of proceedings. COMMON LAW. Q. B. 16 APRIL, 1863. Nuisance-Contractor and Employer-Negligence-18 & 19 Vict. c. 120. GRAY and WIFE v. PULLEN and The owner of premises within the district of a local board of works having been ordered to abate a nuisance existing thereon, employed a contractor to do the neces sary works. In the course of their execution a trench was dug across a public highway, under the powers given by 18 & 19 Vict. c. 120, and after their com pletion, owing to this trench not being properly and sufficiently filled up, a person passing along the highway fell into it and was injured :— Held, that the contractor only, and not the owner of the premises, was liable, notwithstanding the provisions contained in sect. 110 of the above Act. This was an action tried before Blackburn, J., at Guildhall, during the sittings after Hilary Term. The declaration contained two counts: the first, for a nuisance in cutting a trench across a public highway, into which the plaintiff's wife fell; and the second, for having made a trench across a public highway, under the powers given by the 18 & 19 Vict. c. 120, and not having properly filled it up as required by that Act. It appeared that the defendant Pullen was the owner of a house, in the occupation of a tenant, within the district of the Greenwich Board of Works, and that the defendant Hubble was the inspector of nuisances to that Board. Some nuisance having arisen from the cesspool belonging to this house, Pullen was required to abate it, and he accordingly told Hubble to get all the works necessary for that purpose executed, which he undertook to do, but in reality did them himself. In the course of their execution it became necessary to cut a trench across a public highway for the purpose of branching a drain from the cesspool to the main sewer underneath it, under the powers given by sect. 77 of the 18 & 19 Vict. c. 120. Upon the completion of the works, this trench was filled in; but owing to the improper materials used, and to their not being sufficiently rammed down, it remained to some extent open, and the female plaintiff, whilst passing along the road, fell into the excavation, and sustained considerable injury. Under these circumstances the jury found for the plaintiff, for 697., as against the defendant Hubble; but under the direction of the learned Judge, they returned a verdict for the defendant Pullen, leave being reserved to the plaintiff to move to enter the verdict against that defendant also. H. Mills, Q.C., now moved accordingly. The act of cutting the trench being a nuisance at Common Law, can only be justified under the powers given by the 18 & 19 Vict. c. 120, but sect. 110 of that Act provides that whenever a street is broken up or opened, the person so opening it "shall with all convenient speed complete the work on account of which the same is broken up or opened, and make good the surface or soil so broken up or opened." I concede that the two defendants stand in the relation of employer and contractor, and not in that of master and servant; but I say that the defendant Pullen cannot, by merely employing a contractor, though he be a competent person, rid himself of the obligation cast upon him by the statute of restoring the highway to its original condition. This case is, in reality, undistinguishable from Justice that the provisions of this Act are impliedly contained in all such Acts, and do not affect the present question. Hole v. Sittingbourn and Sheerness Railway was the case of a nuisance. There the Company had no right to obstruct the highway, except by a bridge which could open; and as the bridge made did not open, there was an obstruction and a liability from day to day. But this is merely the case of a contractor who has been negligent in the performance of his work. this case cannot be taken out of the general rule, unBLACKBURN, J.-I am of the same opinion. I think less the enactment has put the defendant Pullen in the position of warranting that the trench should be filled up perfectly from the beginning. But I think that sect. 110 was merely introduced for the purpose Hole v. Sittingbourn and Sheerness Railway, 30 of annexing the penalty provided for by the following L. J. Ex. 81. COCKBURN, C.J.-I think that in this case there should be no rule. There is nothing to take it out of the common doctrine, that if a person, whether in the exercise of his rights as a private individual, or under the powers given him by a statute, employs a contractor to do certain work, and the contractor in the performance of that work is guilty of negligence, the contractor alone is liable. This case is distinguishable from that of Hole v. Sittingbourn and Sheerness Railway, relied on by Mr. Mills. There, a Company were authorised to construct a bridge, and with a view to prevent any obstruction to the navigation of the river, they were directed to erect a swing bridge. They employed a contractor, and he made a bridge which would not swing, and which impeded the plaintiff while navigating the river; then it was saidthis is the case of a duty cast by Act of Parliament upon the Company, and they cannot absolve themselves from it by the employment of a contractor. In the present case, however, persons have authority by Act of Parliament to dig up the highway, and then the duty is cast upon them of filling up the excavations so made, and this is to be done with all convenient despatch. All that this enactment provides for is, that the work shall be done with all convenient despatch, but the obligation to do it would have been the same without any such provision, which is only introduced for the purpose of annexing the penalty imposed by the succeeding section, in case these requirements are not complied with. And if without this enactment the contractor, and not the person who employs him, would be liable, there is nothing in the Act to alter that liability. CROMPTON, J.-I am of the same opinion, and I think that this case quite falls within the ordinary rule. It is conceded that the person whose negligence caused the damage stands in the position of a contractor, and not of a servant; but the ordinary rule is, that the person employing a contractor is not liable for his negligence, and I quite agree with the Chief section, which imposes a pecuniary penalty merely, and does not create the liability contended for-namely, that the employer should be liable for the negligence of the contractor, from which alone the injury here arose. If notice had been given to the owner after the ditch had been filled up of its improper condition, other questions might have arisen ; but there was no such notice in the present case, and the accident having arisen from the imperfect manner in which the drain was filled up, owing to the negli gence of the contractor, the owner is not liable. MELLOR, J.—I am of the same opinion. There was here no warranty on the part of the owner that the ditch should be properly filled up. In the case cited, there was a perpetual obligation that if the bridge was constructed at all, it should always be kept in such a manner as to cause no obstruction to the navigation. Rule refused. Q. B. FORBES v. SMITH. 17 APRIL, 1863. Goods bargained and sold-Goods sold and delivered. Where the property in goods has passed by delivery, an action for goods bargained and sold will not lie against the vendee for their price. DECLARATION for goods bargained and sold, claiming 77. 1s. 11d. Pleas (1) except as to 57. 11s. 7d., never indebted : (2) as to 57. 11s. 7d., payment after action: (3) as to 57. 11s. 7d., delivery of certain goods after action in satisfaction. Issues thereon. At the trial before the Secondary of the City of London, it appeared that the plaintiff was a warehouseman in London, and the defendant a draper at Sittingbourne in Kent. The plaintiff's traveller took an order from the defendant for goods to the amount of 307. 19s. Od., and goods to that amount were sent to the defendant. He, however, returned goods to the value, according to the plaintiff's evidence, of 23. 17s. 1d.; and this action was brought to recover 77. 1s. 11d., the price of those which he had kept. Before action, the defendant offered to pay 5l. 11s. 7d., but the plaintiff said he would only accept it on account. After action, 5l. 11s. 7d. was accordingly paid by the defendant to the plaintiff. It was submitted by the counsel for the defendant that the plaintiff must be non-suited, on the ground that he ought to have declared for "goods sold and delivered," and not for "goods bargained and sold." It was also submitted that the Secondary had no power to amend the declaration. The Secondary did not amend the declaration, and non-suited the plaintiff. Laxton now moved for a rule, calling on the defendant to show cause why the non-suit should not be set aside and a new trial had, on the ground that there was evidence to go to the jury upon the count for goods bargained and sold. He contended that it was clear that a count for goods sold and delivered would have been sufficient, and that evidence of goods sold and delivered necessarily included evidence of goods bargained and sold. Where goods have been sold under a contract of "sale or return," and the person to whom they have been sent has not returned them within a reasonable time, it is held to be an absolute sale, Moss v. Sweet, 20 L. J. Q. B. 167; Here there has been a sale of this nature, and the circumstances, it is submitted, amount to evidence that the property passed by reason of such sale. PER CURIAM. (Cockburn, C.J., Crompton, Blackburn, and Mellor, JJ.) There will be no rule. In Moss v. Sweet, the Court held that the evidence supported a count for goods sold and delivered, and therefore that case is not in point here. In a note in Bullen and Leake's Precedents, 1st ed. p. 22, I find it stated, that "if the goods have been actually delivered, and the delivery was part of the consideration for payment, the count for goods bargained and sold will not lie; but the count for goods sold and delivered should be used." That is both good law and sound common sense. Here the property passed by delivery, and therefore the count for goods bargained and sold cannot be supported. action of libel brought in respect of such imputations that the writer honestly believed them to be well founded. This was an action of libel, tried before Cockburn, C.J., at Guildhall, during the sittings after Hilary Term. The defendant is the printer of the Saturday Review, and the action was brought to recover damages for an alleged libel contained in an article which appeared in that periodical. The plaintiff (Dr. Campbell) is the editor and part proprietor of two religious newspapers called the British Standard and Ensign, and in these papers he published certain letters, entitled "Missions to China," to which were appended certain announcements and appeals to the religious public, of which the following is a specimen :— "Co-operation is earnestly invited to aid in sending forth on all sides arguments and appeals, calculated to awaken compassion for the lost millions of the land of China." "The free circulation list now amounts to upwards of 20,000 copies, included in which are the following:-The Hon. Charlotte Margaretta Thompson, Prior Park, Bath, 5,000; the Earl of Gainsborough, 1,000; the Earl of Shaftesbury, 1,000; the Hon. Arthur Kinnaird, 1,000; the Rev. Dr. and friends, 1,000. While this is worthy of the generous donors and the matchless cause, it is full of encouragement to the editor, and highly cheering to myself. I do trust that the noble example here set will have the effect of calling the attention of many Christians of zeal and means who have hitherto neglected China." In another of the lists of subscribers for copies for distribution were the following:-"R. G. 250 copies; a London Minister, 120; an Old Soldier, 100." Various letters were likewise published, one of which was as follows:- "Ah, would we have our great Protestant principles, privileges, and blessings, more widely propagated and more securely perpetuated, then let us to a man for the nations. Put me down for 500 copies." willingly, liberally, and prayerfully, set up an Ensign Upon these announcements and appeals, the article complained of as libellous commented, and the following were amongst the passages selected as the subject of complaint : "The doctor refers frequently to Mr. Thompson as his authority-so frequently that we must own to having had a transitory suspicion that Mr. T. was nothing more than another Mrs. Harris, and to believe, with Mrs. Gamp's acquaintance, that there never was no such person.' But as Mr. Thompson's name is down for 5000 copies of the Ensign, we must accept his identity as fully proved, and we hope the publisher of the Ensign is equally satisfied on the point. Certain it is that Mr. Thompson knows more about China than anybody else in England." "To spread the knowledge of the Gospel in China would be a good and an excellent thing, and worthy of all praise and encouragement; but to make such a work a mere pretext for puffing an obscure newspaper into circulation, is a most scandalous and flagitious act, and it is this act, we fear, we must charge against Dr. Campbell. Buy the letters, and save the heathen. About twenty-five letters will be 'required'; they must be circulated and read, and for this 'I am wholly dependent on the good offices of the friends of the heathen.' There is no disguise in all this. Letters from correspondents, all bearing the mark of one hand, put the matter on a very simple basis. 'Ah,' writes one, 'would we have our great Protestant principles, privileges, and blessings more widely propagated, and more securely perpetuated, then let us to a man willingly, liberally, and prayerfully set up an Ensign for the nations.' The good soul adds, 'put me down for 500 copies.' "There have been many dodges tried to make a losing paper 'go,' but it remained for a leader in the Nonconformist body to represent the weekly subscriptions as an act of religious duty. Moreover, the wellknown device is resorted to of publishing lists of subscribers, the authenticity of which the public have, to say the least, no means of checking. 'R. G.' takes 240 copies; 'A London Minister,' 120; 'An Old Soldier,' 100; and so on. Few readers, we imagine, will have any doubt in their minds as to who is the 'Old Soldier.'" At the trial, it was contended, on the part of the plaintiff, that these passages imputed to him the serious charge of fabricating fictitious subscription lists, and of trying to procure subscriptions, professedly for the conversion of the heathen, but in reality for the purpose of filling his own pocket, and the plaintiff and other witnesses were called to show that such charges were without foundation. On the other hand, it was contended for the defendant, that the article was such a comment as the defendant was entitled to make upon the scheme publicly put forward by the plaintiff; and that even if it did impute improper motives to the plaintiff, it was not actionable, if the writer honestly believed such imputations to be well founded. The Chief Justice, in summing up, told the jury that the plaintiff, by putting forward to the world the writings which had been commented on, had exposed himself to public criticism; and if they thought that the effect of the article complained of was merely to comment in a hostile spirit upon the scheme put forward by him, the defendant was entitled to their verdict; but that if, in their opinion, the article went beyond that, and imputed to plaintiff base and improper motives, which the evidence had shown to be without foundation, he thought that they ought to find for the plaintiff. And he further stated that, in his opinion, it was no defence that the writer honestly believed the imputations made to be well founded. At the same time he asked them, if they returned a verdict for the plaintiff, but were of opinion that the writer made the imputations under an honest and genuine belief that they were well founded, to find that fact specially. The jury returned a verdict for the plaintiff for 507., finding at the same time "that the writer in the Saturday Review believed his imputations to be well founded." Upon this finding, the learned Judge directed the verdict to be entered for the plaintiff, but reserved leave to the defendant to move to enter the verdict for him. Bovill, Q. C., now moved, pursuant to this leave, for a rule to enter the verdict for the defendant, and also for a new trial, on the ground of misdirection. The same point, however, substantially was argued under both these heads. The learned counsel contended that the article com plained of, consisting of comments upon the public writings of the plaintiff, was privileged, and that, so far from there being any evidence of actual malice, the jury had expressly negatived its existence. He argued further, that the only limit to the right of commenting upon public works, or the conduct of public men, was, that the person making such comments should honestly and bona fide believe them to be well founded, and that, therefore, upon the finding of the jury, the verdict ought to be entered for the defendant. support of these propositions, he cited In Paris v. Lery, 2 F. & F. 71; s. c. 30 L. J. C. P. Turnbull v. Bird, 2 F. & F. 508; Baylis v. Lawrence, 11 Ad. & El. 920; and COCKBURN, C.J.-I am of opinion that in this case there ought to be no rule. The article on which this action is brought is unquestionably libellous. It imputes to the plaintiff that, putting forward the great and sacred cause of the dissemination of religion amongst the heathen, the plaintiff was acting merely as an impostor, his sole motive being to put money into his own pocket, by inducing persons to subscribe to his newspaper, and, as incidental to the furthering of this base purpose, it charges him with publishing in his paper as genuine a fictitious correspondence, addressed to him by imaginary persons; and it goes still further, imputing that he published a fictitious subscription list. Now, that these are most serious imputations on a man's character no one can doubt; but it is said that the announcements put forward by the plaintiff in a public newspaper were open to public criticism; and I quite concur in that view, and think they were fairly open to ridicule. It seems to me that the line must be drawn between hostile criticism upon a man's public conduct and the motives by which that conduct is supposed to have been actuated, and that you have no right to impute to a man whose conduct you assail, and who may be fairly open to your attacks, base, sordid, and dishonest motives, unless there is so much ground |