one-fifth part of the residue of his personal estate to his said trustees upon such trusts and under and subject to such powers and provisions as were expressed concerning the sum of 187,500l. and the stocks, funds, and securities upon which the same might be invested, or such of the said trusts, powers, and provisions as should be subsisting or capable of taking effect.

The testator died on the 18th of September, 1837, and Robert Boyd, the first tenant for life of the sum of 187,500%., died on the 16th of January, 1863, leaving his eldest son, Walter Boyd the younger, and seven younger children him surviving.

The bill in this suit was filed, shortly after the testator's decease, for the administration of his estate. The question whether the seven younger children of Robert Boyd were each entitled to two charges of 50007., was now raised by a petition presented in the

suit.

Daniel, Q.C., and C. Parke, appeared for the petitioners, the younger children, of Robert Boyd, and contended that each of such younger children were entitled to two sums of 50007. each. They commented upon,

Hindle v. Taylor, 5 De G. M. & G. 577;
Stanley v. Stanley, 2 J. & H. 491.

Wood, V.-C.

}

Re TURBUT'S ESTATE.

15 JULY, 1863.
Practice-Leases and Sales of Settled Estates
Act, s. 37-Jointure-Examination of Married
Woman.

A married woman entitled to a jointure charged on settled estates must be examined under the 37th section of the Leases and Sales of Settled Estates Act.

Upon an application under the Act the examination was allowed to be taken after the order was made on the petition, but before it was drawn up, the petition being ordered to be mentioned again after the examination.

This was a petition for the sale of certain estates, which, on marriage, had been settled on the husband for life, with a power of jointuring his wife, which power had been exercised by him.

The order was made on the petition without any examination of the married lady being taken : the registrar refused to draw it up without such examination.

C. M. Roupell mentioned the petition to the Court, and urged that section 37 of the Leases and Sales of Settled Estates Act applied only to cases where the

Gifford, Q.C., and Fitzhugh, for Walter Boyd the property was settled on the wife. Here it was settled

younger.

Wilcock, Q.C., and Nalder, for the trustees.

WOOD, V.-C., said, that the case was governed by Lord Cranworth's decision in Hindle v. Taylor. The scheme of the will in the present case furnished an additional reason for his coming to the conclusion arrived at in that case. The testator was making a provision for his family: first, he provided for his son; he then made up each of his four daughters' fortunes to 30,0007., and then he divided the residue of his estate into five equal shares; one of which he gave to each of his daughters, and the other one-fifth share he bequeathed, by reference to the former bequest, for the benefit of his son. The principle laid down by Lord Cranworth, that, in cases where trusts are declared by reference to the trusts of a prior fund, such limitations ought not to be construed so as to multiply the charges which had been made on such prior fund, was, his Honour thought, especially applicable to the present case.

only on the husband, and the examination of the wife as to her jointure was unnecessary.

[Wood, V.-C., not assenting to this view of the case,]

Discharge from Custody-
The trusts of the sum of

187,500l. were, after the decease of Robert Boyd, for the benefit of Walter Boyd the younger, subject to the charges for the younger children of Robert Boyd; therefore, the residue would be held upon the same trusts as the 187,5007., but would not be subject to any charge for the benefit of the younger children, each of whom would only be entitled to one sum of 50002.

Re GODOY.

Writ of Capias to hold to Bail-112th section of Bankrupt Law Consolidation Act, 1849.

A debtor in custody by virtue of a writ of capias to hold to bail, will not be released by the Court of Bankruptcy under the 112th section of the Bankruptcy Consolidation Act of 1849.

This was an application by Lawrance (solicitor), under the 112th section of the Bankruptcy Law

His Honour further said that application to allow Edwards (solicitor) appeared for the detaining the bankrupt to put in bail must be made to the Judge who directed the writ to issue, to whom, in the absence

HIS HONOUR said that, under the circumstances, of consent, he must leave the matter.

COMMON LAW.

Huddleston, Q.C. (Gray with him), for the plaintiff, be for the plaintiff. He claims a right of placing

a stall for the sale of goods by himself or his licensees on market days in front of his shop in a market held in the High Street of the borough of Bridgnorth, as appurtenant to his house situate in that street; and his complaint is, that he has been disturbed in the enjoyment of this right by the defen

Wilkes v. The Hungerford Market Company, 2 dants' holding on market days another market near

corporation of Bridgnorth, who are also lords of the manor in which the borough is situate. The plaintiff is the owner and occupier of a house in the High Street, and he and the previous owners and occupiers of this house, as well as several other occupiers of houses in High Street, have from time immemorial erected on market days stalls opposite their respective houses, and have exposed thereon goods for sale in the market, or let the stalls for hire to others who have done so; and no payment has ever been made to or claimed by the corporation for stallage, or for tolls of things sold at such stalls, though they took tolls of similar produce exposed in the market elsewhere. The defendants have moved the market to another place within the town, at some small distance from the High Street, which would be necessarily injurious to the old market if it was continued, and to the right claimed by the plaintiff therein.

But the demand for compensation in respect of this alleged injury is resisted : 1st, on the ground that the moving of the market was justifiable under the Public Health Act, 1848, and the Local Government Act, 1858; 2nd, that there is no legal foundation for any right of the plaintiff, which is interfered with by the removal of the market from the High Street to its new site, and no cause of action in respect of such removal.

It appears to us that, inasmuch as the power as to providing market-places conferred on the local board by sect. 50 of the Local Government Act, 1858, is expressly qualified by the provision that no market shall be established so as to interfere with any rights enjoyed by any person without his consent, the two questions raised on the part of the defendant may be narrowed to the single one, whether the plaintiff has shown that the removal of the market was an unlawful interference with any right then enjoyed by him. No authority in any way referring to such a right was cited by counsel on the argument of this case, nor has the Court been able to discover any. It is necessary, therefore, to consider on principle whether such a right is maintainable.

On the part of the plaintiff the argument rests on the long-established rule as mentioned by Lord Hobart in Slade v. Drake (Hob. 257), that "antiquity of time justifies all titles, and supposeth the best beginning the Law can give them?" And it is argued that the immemorial enjoyment in the present case may well have had a legal origin, on the supposition either that at some former period the then owners of the market granted to the respective owners of the houses abutting on the High Street, and their heirs, as a right annexed to their estate in the houses, that the occupiers thereof might on market days respectively erect stalls in the market street, opposite their houses, for the exposure of goods free of all tolls and stallage; or that the original grant of the franchise from the Crown to the corporation was expressed to be on the terms or condition that the owners of those houses should enjoy

that right. We think these arguments are well founded, and ought to prevail. This right was probably conferred in consideration that the holding of the market must necessarily diminish on market days the trade and custom of the shops kept in such houses, and the shopkeepers were therefore privileged to advance, as it were, their shops into the market itself, by having stalls in the street commensurate with the fronts of their houses. And in this point of user the enjoyment of the stalls by them and those licensed by them appears to us sufficiently connected with the enjoyment of the houses to satisfy the unquestionable rule of law (which was acted on by this Court in the case of Ackroyd v. Smith, and Bailey v. Stephens, 12 C. B. (N. s.) 91), that no right can be annexed to a house or land which is unconnected with the enjoy ment or occupation thereof.

On the part of the defendants, besides denying that any such right could have a legal existence, it was urged that even if the right existed in respect of erecting such stalls in the High Street as long as the market was held there, yet that they, as owners of the market, might legally remove it to any new place within the manor, and that in respect of such new site the right was annihilated. The cases of Curwen v. Salkeld, Rex v. Cotterill, and De Rutzen v. Lloyd, certainly justify the proposition that if nothing further appeared in the case the presumption would be that the original grant from the Crown was for the holding of the market at any convenient place in the manor, and that accordingly the owners of the franchise in the present case might change the site of it, as they have in fact done. But the answer to this argument is, that if the right of the plaintiff had its origin, as suggested, in a grant from the owners of the market, their successors cannot be allowed to derogate from that grant by changing the site of the market-place. Or, if the right had its origin, as further supposed, in a condition contained in the grant by the Crown of the franchise, the terms of that condition would in effect amount to a grant of a market to be held in the High Street, and in no other place, and consequently the removal of it by the defendants to the new site would be illegal. If this be so, then according to the case of Rex v. Starkey, the High Street continues to be, in point of law, the site of the market, and the plaintiff may maintain this action for setting up a new market to the injury of his right in the ancient market. Our judgment, for these reasons, must be for the plaintiff.

}

Judgment for the plaintiff.

BARKER v. HIGHLEY.

C. P. 15 APRIL, 28 MAY, 6 JULY, 1863. Collision-Admiralty Bond-Liability of Part

Owner.

A ship being arrested in the Court of Admiralty, the

plaintiff, at the request of P, the owner of 62-64ths, entered into a bond for her release. This took place in the absence of the defendant, who was owner of the remaining two 64ths. Judgment was given against P, who became insolvent, and the plaintiff, therefore, had to pay the amount for which he was bound:

Held, that he was entitled to recover the sum he had so paid, from the defendant.

This action was tried at Guildford before Byles, J. It was brought on a bail-bond entered into by a surety to the Court of Admiralty. The defendant, it appeared, was a master mariner in the service of Zachariah Pearson, who was the owner of 62-64ths of the ship "Wesley," of which ship the defendant was owner of the remaining two 64ths. On the 17th of December a collision took place in the river between the ship "Wesley" and the ship "Antelope," and a suit was brought by the owners of the latter ship in the Admiralty Court to recover damages, and, pending that suit, the ship "Wesley" was arrested. Two days afterwards Hargreaves, a broker employed by Pearson the managing owner, who had not time to attend to the business himself, induced the plaintiff Barker and one Coleman to enter into a bail-bond, in order that the ship "Wesley" might be released and be sent to earn freight. The suit in the Admiralty Court was settled by Pearson allowing judgment to go by default against him for 2117. 4s. Pearson then became insolvent, and the plaintiff and Coleman became liable on their bail-bond as sureties for this amount. They paid it, and the plaintiff now sought to recover back one-half of that sum, being the amount which he had paid, from the defendant as part owner of the ship "Wesley." At the time the bail bond was entered into, the defendant Highley was in the East Indies, and had no knowledge of the bail-bond having been entered into.

The Judge directed a verdict for the plaintiff for the amount claimed (1057. 12s.), but reserved leave for the defendant to move to enter the verdict in his favour, if the Court should be of opinion that the above circumstances did not establish any liability on the part of the defendant.

15 APRIL, 1863.

G. Denman, Q.C., moved accordingly.

made no difference whether he acted in the matter himself or employed a broker.

G. Denman, Q. C., supported the rule. The following authorities were cited,

Whitwell v. Perrin, 4 C. B. (N. s.) 412;
French v. Backhouse, 5 Burr. 2727 ;
Bell v. Humphries, 2 Stark. 345;
Campbell v. Stein, 6 Dow. 116, 135;
Mitcheson v. Oliver, 5 E. & B. 419;
Brodie v. Howard, 17 C. B. 109;
Rich v. Coe, Cowp. 636;
Helme v. Smith, 7 Bing. 709;
Ex parte Rayne, 1 Q. B. 982;
Hoskins v. Slayton, Lee, 376;
Chappell v. Bray, 30 L. J. Ex. 24;
Stewart v. Hall, 2 Dow. 29;

Hatton and Another v. Royle, 3 H. & N. 500.
Cur. adv. vull.

6 JULY, 1863.
WILLIAMS, J., now delivered the judgment of the
Court (Erle, C. J., Williams, Willes, and Byles, JJ.).
The defendant in this action was part owner of a
vessel which had been arrested in the Admiralty
Court in a suit for collision. The defendant held two
64ths shares only; the other co-owner held the remain-
ing sixty-two 64ths shares, and acted as ship's husband
and managing owner. He, in order to obtain the
release of the ship, procured the plaintiff and another
person to become bail for the ship in the Admiralty
Court, and the ship was thereupon released.

The suit terminated in favour of the owners of the injured vessel.

The managing owner of the defendant's vessel became bankrupt, and the ship itself was afterwards lost. The bail having each paid their proper share of the money due on the bail-bond, the plaintiff, as one of them, sued the defendant in this action to recover his proportion of the money so paid. At the trial before Mr. Justice Byles the plaintiff obtained a verdict, but leave was given to the defendant to move to enter a nonsuit. The ship's husband or managing owner is an agent appointed by the other owners to do what is necessary to enable the ship to prosecute her voyage and earn freight. In this case it was absolutely necessary to release the ship from the Admiralty process,- -as necessary as it would have been to employ salvors had the vessel taken the ground and been in danger of destruction, in which case the salvors, in addition to the security afforded by their maritime lien, might have brought an action against the owners. Newman v. Walters (3 B. & P. 612.) We think the Rule nisi. managing owner was not bound to deposit money out of his own pocket, or to mortgage his own shares, to hypothecate the ship, but that he might do what was necessary according to the rules of the Admiralty Court. Those rules enabled him to obtain a release of the ship by merely procuring bail for damages and costs.

He contended that Pearson had no right to pledge the defendant's credit, and that, even if he had, he could not delegate that authority to Hargreaves, and that there was no privity of contract between Hargreaves and the defendant.

Montague Smith, Q.C., and Hannen, showed cause. They argued that the steps taken were in the ordinary course of business. What had been done was the best course under the circumstances. The managing owner had authority to pledge his co-owner's credit, and it

The hardship on the present defendant is undoubtedly great, but that arises from the facts that he was owner of so small a portion of the ship, that he has lost his remedy against the co-owner by that coowner's bankruptcy, and against the ship by its subsequent loss. We are therefore of opinion that the rule to enter a nonsuit should be discharged.

Rule discharged.

C. P.
25, 26, 27 MAY,
6 JULY, 1863.
Projected Company-Liability of Directors.

COLLINGWOOD v. BERKELEY
and Others.

The promoter and secretary of a projected company
formed for the conveyance of passengers to British
Columbia, having shown to the defendants a prospectus
of the company, and asked them to become directors,
they assented
on condition that they were properly
qualified and indemnified. They were to receive a
premium in paid-up shares. They were announced in
the prospectus as directors, and copies of the prospectus
were advertised in the newspapers. The plaintiff paid
his fare as a passenger to British Columbia to the secre-
tary at the company's offices, and was subsequently con-
veyed a portion of the journey and there left. Having
thereupon brought an action against the defendants as
directors of the company, it was held that there was
evidence from which a jury might decide that the con-
tract had been entered into by their authority and with
their consent on the credit of their names.

In the month of April, 1862, the plaintiff, being desirous of going from England to British Columbia, had his attention attracted by advertisements in the "Times" of the British Columbia Overland Transit Company (Limited), containing copies of the prospectus of the company, the names of the directors, including those of the defendants and some others, and stating that the prospectus might be obtained from the secretary, James Henson, at the offices of the company, at 6, Copthall Court, and that the first despatch of passengers would take place in May. The plaintiff applied at the office, saw Henson, and received a prospectus from him. The prospectus, after the name of the company, contained the words "to be incorporated under the provisions of the Joint-Stock Companies Acts of 1857 and 1858." It stated the capital, names of the directors, among whom were the defendants, the name of the secretary, the objects of the company, and a form of application for shares. The material portions of the prospectus are contained in the judgment of the Court. The plaintiff ultimately paid Henson 427., and, with thirty other passengers, left England on the 29th of May, arrived at Quebec about the 17th of June, and was conveyed by rail and boat as far as St. Paul's, in Minnesota. Here they found that no horses or carts had been collected to carry them further, and the traffic agent of the company being provided only with the company's bills, instead

of cash, was unable to obtain any. After waiting some time, and suffering great hardships, the passengers subscribed funds to send the plaintiff back to England to communicate with the company, furnishing him with powers of attorney to act for them. On arriving in London he found that the name of the company had been painted out in Copthall Court, and the offices let to another company. He was unable to obtain any redress, and brought the present action against six of the directors. Various pleas were pleaded by the several defendants denying the contract, denying that they were directors of the company, and stating that Henson had no authority to make the contract. At the trial, before Erle, C.J., in London, at the sittings after Hilary Term last, a verdict was obtained for the plaintiff against all of the defendants, except one named Fenner, for 1607. Two of the defendants, the Honourable F. H. Fitzhardinge Berkeley and Mr. Jadis, moved severally to enter a verdict each for himself, pursuant to leave reserved, on the ground that he had given no authority to any one to enter into the contract, and that there was not evidence of such authority, and for a new trial on the ground that the verdict was against the evidence. Against these rules

Shee, Serjt., Pigott, Serjt., and Pearce, showed cause. M. Smith, Q.C., and Kingdon, supported the defendant Berkeley's rule.

Daly supported the defendant Jadis's rule.

6 JULY, 1863.

WILLIAMS, J., now read the judgment of the Court (Erle, C.J., Williams, Willes, and Byles, JJ.).

Upon this rule the question has been whether there was any evidence for the jury that the defendants were liable on the contract stated in the declaration. The contract was made between the plaintiff and Henson. Henson had given to the plaintiff a prospectus describing the defendants among others as directors of the company therein mentioned, and himself (Henson) as secretary; and the plaintiff stated that he was induced, after reading that prospectus, to make the contract, in reliance on the credit of Mr. Berkeley and another as directors. Now, was there any evidence that the defendants had authorised Henson to make the contract for them, or that they by their permission were held out to the plaintiff as parties to the contract with him?

They contended that the prospectus contained merely a proposal to form a company, and that their consent to become directors was only conditional in case the company should be formed and registered, and that they had never attended at the offices, or acted in the directorship, and that there was no evidence that they held out to the plaintiff that business would be carried on by their authority until the above conditions had been fulfilled. But we are of opinion, that there was evidence to support the verdict.