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Russell. Ch.

Russell and Mylne. Ch.

Ry. & Can. Traff. Cas. Rly. and Canal Cases (1874 onwards).

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The Digest

OF

ENGLISH CASE LAW.

NAME.

Change of.]-A person taking a name by act of parliament, does not lose his original name; the effect of the crown's licence is only permission to use a name, not imposing it. Leigh v. Leigh, 15 Ves. 100; 10 R. R. 31.

Testator bequeathed a fund in trust for his next of kin of the surname of Crump, who should be living at the decease of A. B. A lady, whose maiden name was Crump, was the testator's sole next of kin at A. B.'s death; but she married after the testator's death, and then took and ever afterwards bore her husband's surname, which was Carpenter :-Held, nevertheless, that she was entitled to the fund. Carpenter v. Bott, 15 Sim. 606; 16 L. J., Ch. 433; 11 Jur. 723. Devise to relations of such a name: change of name held not to exclude. Pyot v. Pyot, 1 Ves. 335.

Legacy on condition of marriage with person of name of A., is not performed by marriage with person assuming that name. Barlow v. Bateman, 2 Bro. P. C. 272.

A recognisance was acknowledged and registered, under 7 & 8 Vict., c. 90, s. 11 (Irish), in the name of John Donovan Barron. The conusee had been baptised by the name of John Barron, but had been known in his family as John Donovan Barron, under which name he executed other instruments. He had acquired and sold real estate by the name of John Laurence Barron, to a purchaser who had no notice of the recognisance :-Held, that it was not a charge on the real estate, as against the purchaser. Staunton v. Staunton, 15 Ir. Ch. R. 464. In order to bind the purchaser the recognisance should have been registered as acknowledged by John Donovan Barron, and under the head of "persons whose estates are sought to be affected," the name of John Laurence Barron should have been entered. Ib.

Effect of Divorce.]-See HUSBAND AND WIFE (DIVORCE).

Name and Arms Clause.]-See CONDITION.

Property in Of Person.]-In England the assumption of a name, the patronymic of a family, by a stranger, who has never before been called by that name, is not the subject of a civil action, as by the English law there is no right of property in a person to the use of a particular name, to the extent of enabling him to prevent the assumption of his name by another. Du Boulay v. Du Boulay, 6 Moore, P. C. (N.S.) 31; 38 L. J., P. C. 35; L. R. 2 P. C. 430; 17 W. R. 594.

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Of House.] The plaintiff, in 1864, acquired a property which had for many years been known as Ashford Lodge. About the same time the defendant acquired an adjoining property which for many years had been known as Ashford Villa. The defendant having begun to style his property by the name of Ashford Lodge, the plaintiff brought an action to restrain him from so doing, alleging that he was thereby caused inconvenience, and his property damaged :

Held, that this was not an injury to the plaintiff's property which could be restrained by injunction. Day v. Browrigg, 48 L. J., Ch. 173; 10 Ch. D. 294; 39 L. T. 553; 27 W. R. 217

Semble, that the christian name of a party cannot be changed or added to at confirmation.-C. A. Williams v. Bryant, 5 M. & W. 447; 7 D. P. C. 502; 9 L. J., Ex 47.

VOL. X.

Use of Partnership.]-See PARTNERSHIP, 1

Misdescription of Coroner's Inquisition.]-| stock and payment of the dividends on his A coroner's inquisition found death by misfor-undertaking to duly administer the fund. The tune, and that certain chattels moving to the court made an order for the transfer of the stock death were "the goods and chattels of and in and dividends thereon into court, the petitioner the possession of the proprietors of the Hull and undertaking to institute proceedings by summons Selby Railway, and of the proprietors of the for the administration of the testator's estate. Leeds and Selby Railway." The inquisition was National Debt Act, In re; Byrne, Ex parte, quashed, for not showing the deodand to be the [1897] 1 Ir. R. 61. property of parties named, it not appearing that there existed any corporations or corporation entitled as above. Reg. v. West, 1 Q. B. 826; 2 Railw. Cas. 613; 1 G. & D. 481; 10 L. J., M. C. 133; 5 Jur. 484.

In Deed.]—A trader assigned all his property and effects to a trustee for the benefit of creditors, the trustee being described throughout as "James James, of &c., tailor;" but executing the deed by his true name of "James Janes:"-Held, that the misdescription did not prevent the property from passing to him. Janes v. Whitbread, 11 C. B. 406; 20 L. J., C. P. 217.

Misnomer-Proof.]-To prove the existence of a misnomer, it is not enough to state that the trader was baptised by, and always adopted, another name than that by which he is described. It must appear that he was generally known by such other name. Richards, Ex parte and In re, 2 Mont. D. & D. 493; 6 Jur. 136.

NATAL. See COLONY.

NATIONAL DEBT.

1. Re-transfer, 3.
2. Other Points, 7.

1. RE-TRANSFER.

J. M.

Unclaimed Dividends Practice.] - A retransfer of stock which has been placed in the names of the commissioners for the reduction of the national debt must be carried out in accordance with the terms of the 8 & 9 Vict. c. 62, and the practice of the Bank of England. Rushworth v. Walden, 18 W. R. 204.

A testator died in 1876 possessed of a sum of consols standing in his name in the books of the Bank of Ireland. The testator appointed four executors, one of whom proved his will, the second and third renounced, and the rights of the fourth were reserved. The executors were ignorant of the existence of the stock, and, the dividends thereon not having been claimed, the stock was, in 1886, transferred to the national debt commissioners, pursuant to the National Debt Act, 1870. The acting executor died in 1888, and his will was proved by A. and B., his executors. B. survived A. and died in 1893, and his will was proved by C., his executor. The executor of the original testator whose rights had been reserved died in 1890 without having applied for probate. C., having become aware of the existence of the stock, as personal representative of the original testator, applied by petition to the court for a re-transfer of the

Evidence.]-To obtain a re-transfer of stock under the provisions of the 56 Geo. 3, c. 60, it is not necessary for the petitioners to show that they are beneficially entitled to it; it is sufficient if they prove their legal claim. Bigge, In re, 1 Y. & Coll. 245 ; 4 L. J., Ex. Eq. 41.

What evidence will be requisite in a petition under the 56 Geo. 3, c. 60, and 8 & 9 Vict. c. 62, quære. See Howard v. Kay, 4 Drew. 151.

Upon a petition for a transfer of stock, under 56 Ġeo. 3, c. 60, service on the commissioners, and also on the attorney-general, is required by the act. The court will presume, at the hearing of the petition, that the attorney-general represents, not only the commissioners and the crown as parens patriæ, but also the crown in its beneficial capacity. Lawrence v. Maule, 4 Drew 472; 28 L. J., Ch. 681 ; 7 W. R. 314.

Therefore, where the testimony of a witness, since deceased, was received upon a petition under that act, that testimony is receivable in a subsequent proceeding against an administrator, nominated by the crown, and the crown by a party to the former proceedings, or his representatives. Ib.

A fund was carried over, in 1847, to the separate account of B., a sailor, of whom nothing had been heard since 1844, although numerous inquiries had been made. In 1857 it was transferred, together with all accumulations on it, to the commissioners for the reduction of the national debt. In 1860 administration of his estate was duly granted, and the administrator petitioned for payment of the fund and the accumulations to him :-Held, that there was not sufficient evidence of the death of B.; and the petition was ordered to stand over, with liberty to apply. Woodhouselee (Lord) v. Dalrymple, 30 L. J., Ch. 607; 7 Jur. (N.S.) 615; 4 L. T. 455; 9 W. R. 564.

Res Judicata-Fresh Evidence.]-The jurisdiction given to the court by s. 55 of the National Debt Act, 1870, to decide upon petition as to the validity of a claim for the re-transfer of stock which has been transferred to the national debt commissioners under the provisions of s. 51, is to be exercised in the mode in which the ordinary jurisdiction of the court is exercised. Therefore, if a petition for the retransfer of stock is heard on the merits, and is dismissed on the ground that the petitioner has failed to make out his title, he cannot, on the subsequent discovery of fresh evidence in support of his title, present a fresh petition for the same object, at any rate without the leave of the court previously obtained. House, Ex parte, May, In re, 54 L. J., Ch. 338; 28 Ch. D. 516; 52 L. T. 78; 33 W. R. 917—C. A.

Parties.]-A legacy to an infant was invested in stock in the names of two executors, and the dividends not having been claimed for ten years, the stock was transferred to the commissioners for the reduction of the national debt. One of

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