Irish Rep.]

a cancellation, not on the ground of fraud or mistake on his part, but on the ground of mistake by the court, or the party having the carriage of the proceedings! That is the point before the Court. This conveyance contains no mistake so far as Mr. Wren is concerned, as to what he intended to purchase. I have no doubt he intended exactly to purchase what was conveyed, the very measurement in the leases made by the Corporation in 1808. I shall consider the question before the Court on the broad groundWhether any such jurisdiction as has been assumed by Judge Dobbs can be claimed for the Lauded Estates Court? What is the effect of the conveyance? According to the 61st section of the Landed Estates Court Act, the effect of the conveyance is to draw everything out of the owner, and out of every person in the community in whom any particle of interest existed, and to vest it in the purchaser, subject to nothing but what it is stated on the face of the conveyance it is to be subject to. Again, the 86th section provides that the conveyance shall be complete evidence of title, and represent on the face of it the precise limits of that Parliamentary title which the Court professes to convey. Once that conveyance is executed it becomes irrevocable. The 86th section is a final bar to any interference by the Court of Chancery, because it makes the conveyance conclusive as to everything behind it; it is equally a bar to any further proceedings by the Landed Estates Court in respect of it. In fact, all jurisdiction with respect to the conveyance after its execution is ousted, and no mistake, miscarriage, or neglect lying behind it can be remedied by subsequent proceedings. It is itself conclusive evidence that there was a thorough investigation of the owner's title before it was executed, and that everything necessary to extinguish every right in bar of it has been properly done. The present is the case of one of the public, who, attracted by the advertisement of the Court that a certain property was for sale, walked into the auction room, paid his money for it, and left with the conveyance in his pocket. The judge of the Landed Estates Court was entirely functus officio as regarded that purchaser, and he was as utterly powerless to call upon him to give up the deed for cancellation or amendment as he was to demand from the Duke of Leinster the title-deeds of his estates. I have very great pleasure in concurring with the Lord Chancellor in the judgment which he has pronounced, and I feel assured that in reversing the order of Judge Dobbs this Court is conferring a boon upon the Landed Estates Court, by removing from its records an order fraught with future mischief and insufficiency in its working. The appeal

must be allowed with costs.

Appeal allowed with costs.

[L. C. Rep.

LOWER CANADA REPORTS.

THE NORTHERN RAILWAY COMPANY OF CANADA. V. PATTON ET AL.

Held, that the pendency of an appeal to the Privy Council, from a judgment rendered in Upper Canada when security has been given for the costs only, is no defence to a suit brought upon such judgment in Lower Canada. [L. C. Rep., February 5th, 1867.]

This action was brought upon a judgment recovered by the plaintiffs against the defendants in the Court of Common Pleas of Upper Canada. The defendants pleaded, by dilatory exception, that the judgment having been confirmed by the Court of Error and Appeal, they had appealed to Her Majesty in Privy Council, and that, when this suit was brought, the appeal was undetermined.

It was admitted by the parties that, although the defendants had appealed from the judgment declared upon, and although they had given security for the prosecution of the appeal before the Privy Council, and the payment of the costs and charges, yet that they had not given security for the debt and interest for which the judgment was rendered, and that, according to the laws of Upper Canada, the appeal, under such circumstances, had not the effect of staying execution in the cause.

MEREDITH, C. J.-The parties in this case have been heard upon the merits of the dilatory exception. It appears that the plaintiffs have recovered judgment against the defendants, in Upper Canada; that they have appelaed to Her Majesty, in her Privy Council; that the appeal is still undetermined; that the defendants have given security for the prosecution of the appeal and for the payment of the costs and charges, but not for the capital of the judgment; and that, by the laws of Upper Canada, the security thus given by the defendants has not the effect of staying execution in the cause. The question to which these facts give rise is this; Can the plaintiffs, upon the Upper Canada jadgment, now in appeal before the Privy Council, recover judg ment in Lower Canada, against the defendants?

On the part of the plaintiffs, it was contended that a judgment must be considered good until reversed, and that they should not, as to their rights under their judgment, be more restricted here than in Upper Canada, and that, in Upper Canada an appeal, with security such as that given in the present instance, is not sufficient to stay the execution, and therefore, that such appeal ought not to prevent the plaintiffs from recovering a judgment here. On the part of the defendants, it was contended that, as a general rule an appeal, when allowed, suspends the judg ment appealed from, and that it would be hardly reasonable to ask a Court to give effect to a foreign judgment without any examination of the justice of the judgment sought to be enforced, if the question as to the justice and legality of such judgment was still being considered in the Courts of the country where it was rendered.

I must say that, at the time of the argument, I was inclined to think that the appeal had the effect of suspending the judgment, and that the Upper Canadian statute should be regarded as conferring upon the plaintiffs an exceptional right,

L. C. Rep.]

which ought not to be extended so as to enable the plaintiffs to enforce their claim by an action here. I find however, that it is settled by English decisions, "that where au action is brought on a "judgment obtained in a foreign Court, the pendency of an appeal in the foreign court against that judgment is no bar to the action." In the case of Scott v. Pilkington, 2 Best & Smith, p. 38, Cockburn, C. J., certainly one of the ablest men and most distinguished judges of our day, commenced his judgment in the following words:

The plaintiff sues upon a judgment obtained by him against the defendant, in the Supreme Court of the county and city of New York. The defendant in his plea sets out the record of the judgment at length, and concludes with an averment that the judgment is erroneous, according to the law of New York, and is liable to be reversed, and that the defendant is prosecuting proceedings in appeal, which are now pending;" and the learned Chief Justice added; "as far as regards this part of the plea we expressed our opinion in the course of the argument, that though the pendency of the appeal in the foreign Court might afford ground for the equitable interposition of this court to prevent the possible abuse of its process, and on proper terms to stay execution in the action, it could not be a bar to the action."

This was all that was said on the subject by Chief Justice Cockburn; but his view appears to have been concurred in, without any difficulty, by the other judges present, namely, Judges Crompton and Blackburn, and no opposing authority was cited by the counsel for the defendant in that case.

In the case of Alivon v. Furnival, C. M. & R. 277, which was cited by the counsel for the plaintiff in Scott v. Pilkington, a judgment was recovered in England upon a judgment or award rendered in France. The defendant having been charged in execution upon the English judgment, moved upon affidavit stating that an appeal was pending in France from the judgment or award upon which the plaintiff had proceeded and recovered in England, and that the fact of such appeal existing had not been brought before the court in the proceedings that had already taken place. Baron Parke, it is true, observed that the appeal ought to have been insisted upon by the defendant at the trial. But the court held, that, at that stage of the proceedings in the French court there was no ground for the relief prayed; but that if the Court of Cassation reversed the judgment, the application might be renewed."

66

I observe that in neither of the English cases to which I have adverted was the point raised by a plea in the nature of a dilatory exception; the judgments, however, do not appear to have turned upon that point, but to have been decided, according to the observation of Chief Justice Cockburn, in the course of the argument in Scott v. Pilkington, on the ground, that "an ap peal being pending, cannot be subject of a plea."

It seems to me that, upon a question, such as that now under consideration, which is to be determined by the principles of international law, and according to the comity of nations, I ought to be guided by English decisions; and accordingly I hold that the appeal pleaded by the de

Property was bequeathed to the children of A., provided he should marry an English lady. A., in 1859, married a woman named Hannah Tuhi Tuhi, the offspring of an alleged marriage between B. and a native woman of New Zealand, named Tuhi Tuhi. The only evidence of this marriage was that of B., who said that he was a British subject, born abroad, of British parents; that he came to New Zealand in 1828, and had lived there ever since; that, in 1829, he married Tuhi Tuhi, and that such marriage was solemnized according to the laws and customs then in force in New Zealand; that New Zealand was not then a British colony, and there was not then a Christian minister, nor any register of marriages, in the island; and that Tuhi Tuhi had always lived and still lived with him as his wife. B. did not state his parents' name. He said that Hannah, before her marriage, was called Tuhi Tuhi, and not by her father's name, in conformity with the customs of the natives of New Zealand, but there was no evidence what the laws and customs of such natives were. Held, that there was insufficient evidence that A. was a British subject, and that he had married Tuhi Tuhi.Armitage v. Armitage, Law Rep. 3 Eq. 343. MARRIED WOMAN.-See HUSBAND AND WIFE. MASTER AND SERVANT.-See APPRENTICE; PRINCIPAL AND AGENT, 1.

MISREPRESENTATION.-SeeVENDOR AND PURCHASER, 2. MISTAKE. See ELECTION, 1; VENDOR AND PURCHASER, 3.

MORTGAGE.

1. A., bona fide, purchased an estate under a power of sale in a mortgage; the exercise of power afterwards was declared to have been invalid. Held, that A. was not liable, as is a mortgagee in possession, to account for all rents which he might have received but for his wilful default.-Parkinson v. Hanbury, Law Rep. 2 H. L. 1.

2. A creditor agreed to remit part of the debt, on the debtor's giving him a mortgage

3. Property was conveyed by M. to trustees to raise £75,000, and pay off prior mortgages, whose debts, including arrears of interest, amounted to that sum. The trustees did not raise the £75,000, but allowed A. to pay the prior mortgages, and take transfers of them; and then, in consideration of such payments, made a deed, to which M. was a party, purporting to assign to A. the £75,000 raisable, and to mortgage the property to A. for £75,000. Held, that, as against incumbrancers prior to this last deed, A. could not charge interest on £75,000, but could only stand as mortgagee for the principal and interest due on the transferred mortgages.-1b.

See FIXTURES, 1; RAILWAY, 3; SALE, 2 SHIP, 1-3.

NECESSARIES.-See SHIP, 1, 2.
NEW TRIAL.

1. On an application to the Court of Appeal in Chancery for a new trial to reverse the findings of a vice-chancellor on an issue raising mixed questions of law and fact, if the decision of one of the questions of law suffices to dis pose of the case, the Court of Appeal may give final judgment, without ordering a new trial.— Simpson v. Holliday, Law Rep. 1 H. L. 315.

2. A new trial of issues, tried by a vice-chancellor without a jury, claimed on account of improper rejection of evidence, will not be granted, unless the evidence has been formally tendered to the judge.-Penn v. Bibby, Law Rep. 2 Ch. 127.

3. After a trial by a vice-chancellor, a motion for a new trial was refused by the vicechancellor, and on appeal by the lord chancellor: the vice-chancellor refused to suspend the final order for an injunction, pending the appeal to the House of Lords.-Ib., Law R. 3 Eq. 308. NUISANCE.

1. It is no answer to a plaintiff complaining of a private nuisance, to say that others are committing the same sort of nuisance, if a distinct injury is clearly traced to the defendant. -Crossley & Sons v. Lightowler, Law Rep. 3 Eq. 279.

2. The issuing of smoke and effluvia from a factory chimney, and the making of noise in the factory, were restrained, though the factory was in a manufacturing town; such smoke, effluvia and noise being a material addition to previously existing nuisances.--Crump v. Lambert, Law Rep. 3 Eq. 409.

3. On an information under a statute imposing a penalty on any one using a furnace so negligently as not to consume as far as possible its smoke, held, that "as far as possible" meant as far as possible consistently with carrying on the trade in which the furnace was employed. -Cooper v. Woolley, Law Rep. 2 Ex. 88.

See RAILWAY, 1; WATERCOURse, 2.

PAROL EVIDENCE.-Ses PRINCIPAL AND AGENT, 2. PARTIES. See COVENANT, 1; SPECIFIC PERFONMANCE, 2.

PARTNERSHIP.

By the agreement between two partners, each was to have interest on his share of the capital, and the profits were then to be equally divided. A decree was made for a dissolution, and a sale of the property, but the business was carried on for some time, till the property was gold. Held, that, after the dissolution, interest was not payable under the agreement; that, in dividing the proceeds of the sale, each should take what was found to be his share of capital at the dissolution, with the accumulations on such part of the proceeds as had to be taken for this purpose, and that the remainder should be equally divided.—Watney v. Wells, Law Rep, 2 Ch. 250.

See FIXTURES, 1; SOLICITOR, 2. PATENT.

1. The new application of any means or contrivance may be patented, if it lies so much out of the track of the former use as not naturally to suggest itself, but to require some application of thought and study.-Penn v. Bibby, Law Rep. 2 Ch. 127.

2. The complete specification of a patent must not claim anything different from what is included in the provisional specification, but need not extend to every thing so included; and a provisional specification, if allowed by the law officer of the Crown, cannot be impeached as too general.—Ib.

3. The antecedent existence of an invention, which, if subsequent in date to a patent, would have been held a colorable imitation of it, does not necessarily invalidate the patent by anticipation.-Daw v. Eley, Law Rep. 3 Eq. 496.

4. A patent for improvements in dyes thus described the process: "I mix aniline with arsenic acid, and allow the mixture to stand for

some time; or I accelerate the operation by heating it to its boiling point, until it assumes a rich purple color." It appeared that heat was not necessary to produce the color, but evidence was given that a competent workman would apply heat. Held, that the specification was bad, and the patent invalid.—Simpson v. Holliday, Law Rep. 1 H. L. 315.

5. A patent was taken out in France, in 1858, by A., who, in 1861, obtained a patent for the same invention in England. The English patent was assigned by A. to C., who, in January, 1866, obtained a decree declaring the patent valid, and restraining E. from infringing it. In February, 1866, the French courts declared the patent void from February, 1864, on the ground of non-payment of the duties required by French law. On motion by C., in 1867, to commit E. for breach of the injunction, held, that, by 15 & 16 Vic. c. 83, § 25, the English patent was determined from February, 1866, but not from February, 1864; that, therefore, there was no error to be amended by bill of review in the decree of January, 1866, but that the injunction then granted expired with the patent, and there was no order of the court in existence, which E. could be said to have infringed. Held, further, that C., the assignee, was bound by the decision of the French court. -Daw v. Eley, Law Rep. 3 Eq. 496.

6. When bills to restrain infringement have been filed against both the one who manufactures and the one who uses a patented article, and issues have been found for the plaintiff, he is entitled not only to an account against the manufacturer, but also to damages against the one using it-Penn v. Bibbg, Law R. 3 Eq. 308.

7. In prolonging the term of a patent, it was made a condition that licenses should be granted by the patentee to the public to manufacture the patented article, on the same terms on which he had before granted the almost exclusive license to manufacture to an individual.In re Mallet's Patent, Law Rep. 1 P. C. 308. PAYMENT.-See LIMITATIONS, STATute of. PENALTY. See MORTGAGE, 2. PERPETUITY.-See WILL, 12. PLEADING.-See BILLS AND NOTES; COVENANT, 4; SHIP, 2.

POWER.

A lessor had power by the lease to divert a road, if he made a certain other alteration. Semble, that he might divert the road, though he made the alteration for the purpose of entitling himself to divert the road.-Butt v. Imperial Gas Co., Law Rep. 2 Ch. 158.

PRESCRIPTION.

From 1808 to the present time, the fee paid on a marriage in a certain church was almost uniformly 13s. There was no evidence, before 1808. On a special case, in which the court were at liberty to draw inferences of fact: Held, that the amount of the fee, being so great that it could not have existed in the time of Richard I., was sufficient to rebut the presumption from modern enjoyment, that the fee had an immemorial legal existence (Blackburn, J., dissentiente).-Bryant v. Foot, Law R. 2 Q.B. 161. PRINCIPAL AND AGENT.

1. The servant of a horse-dealer has implied authority to bind his principal by a warranty, though (unknown to the buyer) he has express orders not to warrant; and evidence of a general practice among horse-dealers not to warrant, when the horse has been certified by a veterinary surgeon to be sound, is not admissible to rebut the inference of such authority. Semble, that the servant of a private individual, employed on a single occasion to sell a horse, has not implied authority to warrant.-Howard v. Sheward, Law Rep. 2 C. P. 148.

2. An offer to sell goods was accepted by A., "on behalf of the G. company; "the G. company did not then exist. Held, that A. was personally liable on his contract, as for goods sold and delivered; that no subsequent ratification by the G. company could relieve him from his liability without the vendor's assent; and that parol evidence was inadmissible to show that personal liability was not intended. -Kelner v. Baxter, Law Rep. 2 C. P. 174.

3. The agent for a landowner contracted to execute drainage works as agent for a company, the landowner finding the money for the purpose, and being paid an agreed amount by the company. Held, that, notwithstanding the apparent terms of the contract, i might be shown that the agent was not the re. contractor, and was not entitled to any profit on the contract. -Waters v. Earl of Shaftesbury, Law Rep. 2 Ch. 231.

4. The defendant, in London, wrote to the plaintiffs, commission agents at the Mauritius, that they might ship him 500 tons of cane sugar, at a certain maximum price, "to cover cost, freight and insurance; 50 tons more or less of no moment, if it enable you to get a suitable vessel." So much sugar as 500 tons could not be purchased in one lot at the Mauritius; and it was the usual course of business there, in carrying out an order for a large quantity of sugar, to buy it in smaller quantities, from time to time, of different

ersons.

The plaintiffs had thus purchased for the defendant 400 tons, when prices rose, and, before the order could be completed, the defendant countermanded it. Held, that the defendant must be taken to have given his order with reference to the circumstances of the Mauritius market, and that each lot, as bought, was bought for the defendant, and he must pay for the 400 tons.-Ireland v. Livingston, Law Rep. 2 Q. B. 99.

5. The defendant, at Liverpool, wrote to the plaintiff, at Pernambuco, "I hope you will have executed fully all the cotton ordered. If executed, please regard this as an order for 100 bales more." The plaintiff, acting on this order, purchased and paid for 94 bales. No direct evidence was given of the state of the Pernambuco market; but the circumstances of the case rendered it reasonable to infer that the plaintiff, in purchasing the 94 bales, had done all that was practicable. The defendant declined to pay, on the ground that his order had been inadequately performed. Held, that the order must be construed with reference to the state of the Pernambuco market, and that it had been substantially complied with.-Johnston v. Kershaw, Law Rep. 2 Ex. 82.

6. A contract to buy shares in a company, entered into but not completed by transfer before the date of a petition to wind up the company, is not rendered void by 25 & 26 Vic. c. 89, § 153. A broker who has bought shares for a customer under such circumstances, and who has, in accordance with the rules of the Stock Exchange, been compelled to pay their price to the vendor, can recover from his principal the money so paid.—Chapman v. Shepherd, Law Rep. 2 C. P. 228.

7. The plaintiffs contracted to sell shares, which they had purchased from, and which were registered in the name of, C., to the defendant's agent, who gave his name, as principal, for insertion in the transfer, and who also received transfers executed by C. to the defendant, and paid for them with money given them by the defendant. The defendant refused to execute the deeds and have them registered, on the ground that he told his agents he meant to resell without taking a transfer, and that they had given his name without authority. The company was afterwards wound up, and on bill for specific performance (filed before the winding up), to which C. was not a party: held, that the plaintiffs were entitled to a decree, and that the defendant should execute transfers, and have his name registered.-Paine v. Hutchinson, Law Rep. 3 Eq. 257.

See COMPANY, 1; SHIP, 4; TRUstee.

PROBATE PRACTICE.

If the court has no reasonable doubt that a will was duly executed, and was destroyed without the fault or negligence of those intrusted with its custody, and if the next of kin consent to the application, the court will admit a draft of the will to probate, without calling on the executors to propound it.-Goods of Barber, Law Rep. 1 P. & D. 267.

See ADMINISTRATION; FOREIGN COURT. QUO WARRANTO.

A quo warranto will be granted, though the defendant has resigned the office, if the object of the relator is not only to cause the defendant to vacate the office, but to substitute another candidate at once in the office; as the relator is, in such case, entitled to have judgment of ouster or a disclaimer entered on the record. The Queen v. Blizard, Law Rep. 2 Q. B. 55.

RAILWAY.

1. The owner of a house, none of whose lands have been taken for a railway, can recover, against the company who constructed the railway, compensation, under 8 Vic. c. 20, §§ 6 & 16, for injury to the value of the house, from the noise, smoke and vibration, caused by another company's running trains, in the ordinary manner, on the railway (Channell, B., dissentiente).—Brand v. Hammersmith & City Railway Co., Law Rep. 2 Q. B. 223.

2. A railway company were let into posses sion of land, by agreement with the owner, and made their railway over it, giving bond to pay the purchase money on a future day. Default was made in payment. Held, that the company would not be enjoined from continuing in possession till they paid the purchase money.Pell v. Northampton & Banbury Junction Railway Co., Law Rep. 2 Ch. 100.

66

3. A mortgage debenture of a railway company assigned "the undertaking of the company, and all the tolls and sums of money arising upon or out of the said undertaking," as security for money lent. Held, that the 'undertaking" was the going concern created by statute; that the "sums of money" are moneys ejusdem generis, as the tolls; and that the debenture did not give the holder such a charge on the company's surplus lands as to entitle him to an order for a receiver of the sale moneys or interim rents.-Gardner v. London, Chatham & Dover Railway Co., Law Rep. 2 Ch. 201.

4. A railway company may charge the moneys to arise from the sale of its surplus lands