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Q. B.] THE LIVERPOOL NEW MARKET COMPANY (apps.) v. WILLIAM HODSON (resp.)

other point, I concur with the other members of the court in expressing, after the argument we have heard, considerable doubt whether it is necessary for an assignee under the circumstances in the present case to have his title put on the register. As we have not to decide that point it is unnecessary to say anything more than that I entertain considerable doubt on the subject.

Rule discharged.

Wednesday, Jan. 16.

[Q. B.

The company do not slaughter the cattle by their own servants, but the men actually employed in the slaughtering are employed by the owners of the cattle, and such owners provide all tools and implements except the tackle, &c., appurtenant to the building. The local board have given no consent to the said slaughtering of cattle in the said premises.

An information was laid on the 4th April 1866 by the clerk of the local board against the said cattle company, of which the following is a copy:

Lancashire to wit.-Be it remembered that on the 4th day of April, in the year 1866, William Hodson, clerk to a certain local board duly constituted, to wit, the West Derby Local Board, cometh before me, the undersigned, one of Her

THE LIVERPOOL NEW MARKET COMPANY (apps.) Majesty's justices of the peace in and for the said county of v. WILLIAM HODSON (resp.)

The Public Health Act 1848-Slaughterhouses-Using same without being licensed-Public company. By a local Act a company was incorporated for esta blishing a market, but no part of such market was ever used as a slaughterhouse, nor were any animals ever slaughtered there prior to the 5th March 1866, when the company having erected additional buildings upon their premises suitable for slaughtering cattle, such cattle were from time to time slaughtered there by the owners of cattle and those employed by such owners, the company receiving for each beast slaughtered a certain sum. Before the said 5th March 1866, the Public Health Act 1848, and the Local Government Act 1858, were applied to the district in which such premises were situate; the company, however, had not obtained any licence for the use of the premises as a slaughterhouse :

Held, that the company were within the penalty of the Act, and were rightly convicted.

This was a case stated by justices under the statute 20 & 21 Vict. c. 43, for obtaining the opinion of the court on a question of law which arose in the exercise of summary jurisdiction under the Public Health Act 1848. The following are the circumstances of the case:

The Public Health Act 1848, and the Local Government Act 1858, were applied to the district of West Derby, in the county palatine of Lancaster, in the year 1860. In the session of Parliament, held in the second year of the reign of his late Majesty King William 4th, an Act (cap. 8), was passed intituled "An Act for establishing a market in the parish of Walton-on-the-Hill, in the county palatine of Lancaster." Such Act may be read as part of this case.

The said market is wholly situate within the limits of the district of the said local board, which extend to a considerable distance on every side

thereof.

No part of the said market or premises has ever been registered under the 127th section of the Towns Improvement Clauses Act 1847, or under the

61st section of the Public Heath Act 1848.

No part thereof was ever used as a slaughterhouse, nor were any animals ever slaughtered there prior to the 5th March 1866.

In or about the month of November last the said company proceeded to erect and complete upon their said premises a building suitable for the slaughtering of cattle.

The slaughtering of cattle in the said slaughterhouse was commenced on the 5th March last, and cattle have been slaughtered from time to time in such slaughterhouse up to the 4th April last. The course of business has been, that the said cattle company have permitted owners of cattle to slaughter them on the company's premises, such owners using the tackle of the building, and for each beast slaughtered the company charge and are paid the sum of 2s.

Lancaster, and informeth ine, the said justice for. &c., on the part of the said West Derby Local Board, in whose district the offence hereinafter mentioned hath been committed, that the Liverpool New Cattle Market Company did, within six calen lar months last past, to wit, on or about the 2nd day of April inst., on a piece of land used by the said company as a cattle market, and within the district of the said local board, in the said county, and within the jurisdiction of the justices aforesaid, newly establish in a certain building or place, to wit, in a building situate on the said piece of land used by the said company as a cattle market as aforesaid. The business of slaughterers of cattle after the Act hereinafter mentioned was applied to the said district in which such building as aforesaid is situate, without the consent of the said local board, contrary to the provisions of the Public Health Act 1848, in such case made and provided, the said Act being in force in the offence aforesaid was committed, whereby and by force of the said district of the said West Derby Board, within which the said Act the said Liverpool New Cattle Market Company hath incurred a penalty of 50%, and a further penalty of 408. for each and every day during which the offence aforesaid is continued, whereupon the said William Hodson prayeth the advice of me the said justice in the premises, and the said New Cattle Market Company may be forthwith summoned to answer the said offence. W. HODSON.

On the summons issued in pursuance of this information coming on to be heard before us on the 6th April 1866, the above statement of facts was admitted to be true, and thereupon we did adjudge and determine that, under the circumstances aforesaid, the said Liverpool New Cattle Market Company had newly established on the said piece of land within the district of the said local board of health, the business of slaughterers of cattle without the consent of the said local board of health, contrary to the form and effect of the 64th section of the Public Health Act 1848, and we did adjudge and determine that for their said offence the said Liverpool New Cattle Market Company should forfeit and pay the sum of 50%. to be applied in the manner directed by the said Act.

The question of law arising on the above statement for the opinion of the court is, whether the said Liverpool New Cattle Market Company did newly establish the business of slaughterers of cattle within the district of the said local board of health the intent and meaning of the said 64th section of without the consent of the said local board within the Public Health Act 1848. If the court shall be of opinion that the said conviction was legally and properly made, then the said conviction is to stand, but if the court should be of a contrary opinion, then the said complaint is to be dismissed.

By sect. 64 of the Public Health Act 1848 (11 & 12 Vict. c. 63) it is enacted

slaughterer of cattle, horses, or animals of any description, shall not be newly established in any building or place after the Act is applied to the district in which such building or place is situate, without the consent of the local board of health under a certain penalty.

That the business of a blood-boiler, bone-boiler, fellmonger,

Aspinall, Q. C. appeared for the apps., and contended that they were not liable.

Pope appeared for the resps.

ing judgment. The arguments sufficiently appear from the follow

COCKBURN, C.J.-I am of opinion that the conviction was right in this case. The Act expressly

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states that no business of slaughtering cattle shall be newly established except in a building registered, and that any one offending against the Act shall be liable to certain penalties. As I have before pointed out, if this were a misdemeanor, the defts. as accessories to the slaughtering of cattle in these premises, would be guilty of a misdemeanor; they are, in point of fact, just as much concerned in the business of the slaughtering of cattle carried on upon these premises as the people who come there to slaughter cattle. It is a sort of hiring of the premises. We find the premises are those in which cattle are slaughtered, and there is a fee or charge for bringing the cattle to be slaughtered. It is impossible to say that they did not offend against the Act by newly establishing the business of slaughtering cattle in the place in question. Therefore I think they are within the meaning of the Act, and subject to the penalties upon this newlyestablished business.

BLACKBURN, J.-I am of the same opinion. Mr. Aspinall's argument was entirely upon this point,

that the business of a bone-boiler, &c. shall not be carried on in any newly established place; he construes that as meaning they shall not be let to tenants, or occupied by a person who is a trader carrying on business so that they could have made him a trader under the bankrupt law. I do not think that is the meaning. It does not mean that one cow killed or one pig killed would bring him within the Act; but when it is done to the extent of being a business, one person suffering another to bring his cattle there as a business is a trading carried on in the newly established place.

LUSH, J.-I am of the same opinion. I think the defts. are the persons, and the only persons, who have caused the thing to be done which the statute says shall not be done, and therefore they are offenders against the Act.

Judgment affirmed.

COURT OF COMMON PLEAS. Reported by W. GRAHAM and M. W. MCKELLAR, Esqrs., Barristers-at-Law.

Wednesday, Jan. 16.

Gebhardt v. Rose.

The B. A. 1861-Execution five days after date of assignment-deed, before stamping or registration · Costs.

An execution was levied upon a debtor five days after he had executed a deed of assignment to his creditors under the 192nd section of the B. A. 1861. At the first appearance in chambers upon an interpleader summons, the deed was neither stamped nor registered; an adjournment was granted, and on the second appearance the deed was stamped but not registered; an affidavit, however, was put in, by which the attorney of the creditors swore he intended to register before the expiration of the time allowed by the Act. The goods were ordered to be sold, and the matter was referred to the court. Registration was duly completed within the twenty-eight days:

Held, that the execution-creditor was barred by the deed, and that costs should not be allowed either to him or to the sheriff.

This was an application by the sheriff of Bristol under an interpleader order, which had been referred to the court by Keating, J.

A deed of assignment under the 192nd section of the B. A. 1861 was executed by the deft. on the 23rd Nov. 1866. An execution on behalf of the plt.

[C. P.

was put into the deft.'s house on the 28th Nov. before the deed was registered or stamped. At the first hearing of the interpleader summons, soon after the execution, the matter was adjourned in order to give the trustees under the deed an opportunity of stamping it; and on the 6th Dec. the summons was heard by Keating, J. The deed, although stamped, was not then registered, but an affidavit of the attorney was put in to the effect that he intended within the twenty-eight days allowed by the 4th clause of the 192nd section to register the deed under that section, if assented to by the requisite number of creditors, or if he failed to obtain the assent of the requisite number of creditors, he intended to register under the 194th section. On the 14th Dec. registration duly took place according to the provisions of the 192nd section. The Judge ordered the sheriff to sell the goods and pay the money into court.

A. Wilson appeared for the sheriff.

As registration may take place at any time within Pinder, on behalf of the trustees of the creditors. twenty-eight days from the execution of the deed, there was no default on the part of the creditors, and the goods should be the property of the claimants. At the time of the hearing it was not certain that the requisite number of creditors would assent, but if they had not assented, the deed would be good under sect. 194:

Symons v. George, 33 L. J. 231, Ex.; 10 L. T. Rep.
N. S. 424

Grantham, for the execution-creditor, opposed the trustees' claim.-When the deed was brought up the first time it was neither stamped nor registered, and it ought not to have been received as evidence at all (Ex parte Potter, re Barron, 11 L. T. Rep. N. S. 435); and even if this objection be remedied by the deed being stamped by the 6th Dec. we ought to be in the same position now as we were at first, when stamping and registration had not taken place. The dispute is about a matter of 31., and we do not desire to have an issue sent to be tried by a jury; there is indeed no conflict in the affidavits. In Baersalman v. Langlands, 3 H. & C. 433, it was held that a deed of this kind became valid only upon registration.

BOVILL, C. J.-We are all clearly of opinion that the objections of the execution-creditor cannot hold, paid to the claimants. and as the goods have been sold, the money shall be

Wilson asked for the costs of this application on the ground that the sheriff had nothing to do with the matter.

Pinder asked for costs on the ground that the adjournment from chambers at the execution-creditor's request was unnecessary.

BOVILL, C. J.-We shall follow the general rule with regard to the sheriff, as he is relieved from risk of greater expense; and as the trustees might have stamped and registered the deed earlier, no costs will be allowed to either party.

Attorneys for sheriff, Bridges, Sawtell, Heywood, and Ram.

Attorneys for claimants, King and Plummer. Attorneys for execution-creditor, W. and W. A. Walter.

C. P.]

Saturday, Jan. 19.
CODD V. BROWN.

CODD v. BROWN.

Landlord and tenant-Outgoing and incoming tenant-
Tillages-Contract to pay for.

The jury having found for the deft.,

[C. P.

Mellor, in Michaelmas Term, obtained a rule for a new trial, on the ground that the judge misdirected the jury, in telling them that unless they found that there was an express contract on the part of the Prima facie the landlord is bound to pay the outgoing deft. to pay the plt. for the crops, although the deft. tenant for tillages, and the mere fact of the incoming had taken possession, he was not liable, and on the tenant entering upon the land does not render him | ground that the verdict was against evidence. hable to do so; but it is a question of fact whether the contract between the outgoing tenant and the landlord subsists, or a new contract has been entered into with the incoming tenant.

This was an action by an outgoing against an incoming tenant of a farm, to recover 2167. 8s. 5d., being the amount of a valuation of tenant right.

Manisty, Q. C. and Wills now showed cause, and contended that the only question was whether, in point of fact, the valuers were appointed to value between the plt. and deft., or the plt. and the landlord, and that there was no implied liability for the incoming tenant to pay.

The Court called on

tenant having taken possession, the law implies an Mellor in support of the rule. The incoming agreement on his part to pay for the crops :

Fariell v. Gascoyne, 7 Ex. 273;

Woodfall's Landlord & Tenant, 566, 567.

The declaration alleged that it was agreed between the plt. and deft. that the plt. should leave on the premises, and the deft. should take and purchase of the plt., the dung and manure laid on the farm, and the corn, grass, turnips, and herbage growing and being thereon, and that the plts. should sell and deliver to the deft. the corn and grain in the [M. SMITH, J.-The incoming tenant appoints the straw, straw, hay, dung, manure, fixtures, chattels, valuer, as a matter of convenience, that there may and effects, and that the plt. should leave and give not be two valuations. It is simply a matter of up for the benefit of the deft. the benefits of the evidence.] I submit that the ruling of the judge is sums of money expended, and the work and labour not in accordance with the authorities. In Facieli v. done and performed in managing, tilling, and culti-Gascoyne it seems to have been considered as part vating the farm, lands, and premises, and that the of the law of the land that where the incoming deft. agreed to pay for the same at a fair valuation tenant takes possession he is bound to pay the to be made by William Chapman and Grovenor valuation; and here the valuation was made a Roadby, and William Sowerby as umpire; that the month after he took possession. valuation was made, and all conditions were performed, &c., yet the deft. did not pay. There was also a common count for goods bargained, sold, and delivered, and work done.

The only material pleas were non assumpsit and never indebted.

At the trial before Mellor, J. at the last assizes at Leeds it appeared that the plt. had been since 1843 tenant from year to year of a farm at Messingham in Lincolnshire. In Sept. 1865 he received notice to quit, and in April following gave up possession to the deft. as incoming tenant. Shortly afterwards the plt. and deft. appointed valuers and an umpire, who made a valuation, at the foot of which was written "Mr. Brown to pay 2161. 8s. 5d." According to the plt.'s evidence the deft. promised to pay him the amount of the valuation, but the deft. stated that he never made any such promise, and that he only selected the valuer on behalf of the landlord, and the valuer stated that he was told by the deft. that he was to value on behalf of the land

lord.

The following letters from the landlord's agent to the plt. were put in :—

Doncaster, 28th April 1866. Dear Sir, I have found the papers relating to your entry on the farm, and it appears that you are entitled to keep the buildings till May-day You are not entitled to be paid for any manure, as you paid for none on entry, but under the cir

cumstances Dr. S. (the landlord) will allow you the value of
the manure in the fold and in the lane, provided (but not
otherwise) that there is no dispute about other matters.-Yours
very truly,
E. BAXTER.

Mr. John Codd.

Doncaster, 1st May 1866. Dear Sir, I have received your letter of yesterday. I certainly cannot allow for summer fallows upon seeds broken up. I never heard of such a thing Mr. Chapman is quite right in saying it cannot be allowed. Dr. S. will be very liberal if the

value of the manure in the fold and in the lane is allowed to
you, as you cannot claim it under your entry.
Yours very
truly,
E. BAXTER.

Mr. John Codd.

Mellor, J. directed the jury, that if there was no incoming tenant the landlord must pay for tillages; that if the deft. had simply appointed a valuer there would have been strong evidence for the plt., but that in this case, unless there was an express promise on the part of the deft., the action should have been brought against the landlord.

KEATING, J.-This rule was obtained on the grounds of misdirection and that the verdict was against evidence. The learned judge has not reported that he is dissatisfied with the verdict; but we think it safer to consult him before offering any opinion on the question of evidence. With reference to the ground of misdirection, I think there was no misdirection. This was an action by an outgoing against an incoming tenant for the amount of a valuation, and the declaration stated that a valuation had been made between the parties, and put it in the form of a contract between them. The plt. was called, and put his claim on a similar ground; that there was a contract to pay the valuation of valuers appointed by the plt. and deft., and if the jury had found that there was such a contract, it would have entitled the pit. to recover. But there was evidence on the other side that the valuation was to be made as between the outgoing tenant and the landlord, and, though it was true that the defts. had nominated a valuer, that he was nominated on be half of the landlord, and that the landlord was to pay. That defence is very intelligible, and the only question is, if there was such a contract as that alleged in the declaration. The judge very correctly asked the jury if that contract existed in point of fact, and there was strong evidence that it did not. Then it is suggested that an implied contract arose from the entry of the incoming tenant, and if the incoming tenant had appointed the valuer such a contract might be inferred; but that is not the case here. We will consult the judge on the question of evidence, and if he is not dissatisfied with the verdict, the rule will be discharged on both grounds.

M. SMITH, J.-I am also of opinion that there was no misdirection. The contract to pay the outgoing tenant for tillages is primâ facie a contract between him and the landlord. Frequently the incoming tenant enters upon the tillages, and where the landlord does not intervene there may be a contract by him to pay, but that implied contract can only arise where there are no other facts for the jury. Where other facts occur, which raise the question whether

C. P.]

POOLE v. CANNING-Ex parte DARVILLE.

the contract between the landlord and the outgoing tenant remains, or there is a new contract, it must be left to the jury, and here the jury find that there was no new contract. I think the case cited does not support Mr. Mellor's contention. Some of the expressions in that case have been disputed, and no doubt in most cases it must be a question of fact, but there Parke, B. says the contract is prima facie with the landlord, and Martin, B. puts the case still stronger, as he says, at the time the tenancy commences the landlord and tenant enter into a special contract, the one to receive and the other to pay the value of the tillages to be repaid by the landlord at the time of the expiration of the term." With regard to the question whether the verdict is against evidence the rule will be reserved.

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Held, that having allowed judgment to go against her by default, she could not claim to have it set aside upon her affidavit.

On the 21st inst. H. James obtained a rule nisi calling upon the deft. to show cause why an order for her discharge from custody, made by Byles, J., should not be set aside.

It appeared from the plt.'s affidavit that the deft. had been living at Shrewsbury with a gentleman of wealth, and that she had accepted in the name of F. S. Canning a bill of exchange for the value of goods delivered to her by the plt. She asserted that she was a widow. In an action upon the bill, tried at Shrewsbury last summer, the deft, pleaded coverture, but no appearance was made on her behalf at the trial, and the plt. obtained judgment and execution. Keating, J. had made also an order of discharge in another action, upon which the deft. was detained in custody. The deft. now stated in the affidavit upon which she applied for release, that she was married to W. J. Newington on 15th July 1856; that her husband was still alive, that they were living apart by mutual consent, and that her husband made her no allowance.

Pearce showed cause.-By the case of Ivens v. Butler, 26 L. J., Q. B. 145, a married woman taken in execution for a debt is, as a matter of right, entitled to be discharged out of custody, unless it be shown that she has at her command separate property, which she can at the time apply to the payment of the debt. There is no allegation on the plt.'s part that deft. is not a married woman, or that she has separate property.

H. James supported the rule.-The effect of this order of Byles, J. is to grant a new trial. (Stopped by the Court.)

BOVILL, C. J.-We have had the advantage of hearing the facts upon affidavits not brought before my brothers Byles and Keating. Under the circumstances there is no ground for discharge from custody. The record stands, upon which the deft. is stated not to be a married woman. The rule will therefore be absolute.

WILLES, J.-I am of the same opinion. I will

[C. P.

not say whether there is any other remedy. Lord Tenterden refused an application similar to this in Moses v. Richardson, 8 B. & C. 421, but on the ground that the deft. ought not to have put the plt. to the expense of executing a writ of inquiry. He added, "She must be left to her writ of error." There is no authority beyond the case of a woman and her husband sued together, certainly there is no case in which a woman has been discharged from custody on the ground of her coverture, where she has allowed the verdict to go against her without raising the question at the trial.

KEATING and M. SMITH, JJ. concurred.

Rule absolute.

Attorneys for plt., Francis and Bosanquet. Attorney for deft., W. E. Goatly.

Ex parte DARVILLE,

Attorney-Articles of clerkship-Stamp-Penalty6 & 7 Vict. e. 73, ss. 8 & 9-8 § 9 Viet. e. 86, s. 2 -19 & 20 Viet. c. 81, s. 3.

Articles of clerkship had been duly served, but the clerk had been unexpectedly prevented from stamping his articles within the six months required by 6 & 7 Vict. c. 63. ss. 8 and 9; and the attorncy under whom the articles were served failed to perform his agreement to stamp within the term of the clerkship, and subsequently fell into pecuniary difficulties. The commissioners granted the prayer of the applicant to affix the stamp under 19 & 20 Vict. c. 81, s. 3, and the fee and penalty had been paid:

Held, that these circumstances were sufficient to justify the court in ordering the service to be computed from the date of execution of the articles under 8 & 9 Fict. c. 86, s. 2.

This was a motion for a rule absolute on the part of Thomas Henry Darville that service under articles of clerkship should be computed from the date of the execution of the articles, notwithstanding the affidavit of execution was not filed within six months as required by 6 & 7 Vict. c. 73, s. 8, upon the following facts:

In 1842, Mr. Darville became clerk to Mr. Henry Bedford, attorney and solicitor since deceased, and from that time to the month of April 1856, he continued to act as clerk to Mr. Bedford, and other attorneys and solicitors in London.

In April 1856, he became managing clerk to Mr. W. H. Barber, attorney and solicitor, and on the 27th Oct. of that year he entered into duly executed articles of clerkship with Mr. Barber for a term of five years, during the whole of which term he faithfully served under his articles.

Having been disappointed in the receipt of expected moneys, he was unable during the first six months of his clerkship to provide the necessary means in order to pay the requisite stamp on his articles, and Mr. Barber afterwards arranged with him to pay out of a certain salary then to become due to him the amount required for this stamp. Notfailed to cause the articles to be stamped, and to withstanding repeated applications, Mr. Barber pay the penalty before the expiration of the five years. At the end of that term Mr. Darville instituted proceedings against Mr. Barber for the recovery of 1507. then due to him, but at the request of Mr. Barber he consented to compromise the matter by taking 207. in cash, and an acceptance for the balance. This acceptance on arriving at maturity was dishonoured, and still remains unpaid. Mr. Barber subsequently left London in difficulties, and has not since been heard of.

Since Feb. 1862, Mr. Darville has been employed

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as managing clerk to various London attorneys and solicitors, all of whom bore testimony in their affidavits to his ability, honourable character, and legal experience.

From the conclusion of the term of his articles of clerkship until the present time, he has been unable to defray the necessary expense of the stamp and penalty, but on the 18th Jan. of this year, after the Commissioners of the Inland Revenue had granted the prayer of his memorial, he paid the stamp duty of 807. on his articles of clerkship, together with the penalty of 501; and thereupon the articles were duly stamped.

One of the concluding paragraphs of Mr. Darville's affidavit was as follows:

I did not enter into the said articles, or refrain from stamping them at the proper time, with any fraudulent design, or as a mere matter of speculation, but in perfect good faith, and with the full intention of paying, and a full and confident belief and expectation of being able to pay the duty within the proper time.

By 6 & 7 Vict. c. 73, s. 8, the affidavit must be filed and enrolment completed within six months of execution of articles, and by sect. 9. if the affidavit be not filed within six months, the service is to reckon from the day of filing, unless one of the courts of law or equity shall otherwise order.

By 8 & 9 Vict. c. 86, s. 2, when persons neglect to enrol their contracts within the time allowed, then one of the courts may order the service to be computed from the execution of the articles.

By 19 & 20 Vict. c. 81, s. 3, power is given to the treasury to authorise articles to be stamped after the expiration of six months from their execution, upon payment of certain penalties.

Garth, Q. C. (with him J. M. Howard) appeared for the applicant. The rule laid down by Erle, C. J. in Ex parte Bishop, 30 L. J. 48, C. P., is, "My practice has always been to grant such an application when it is clear that from some unforeseen emergency, the money has not been forthcoming; but when it is part of a preconceived plan that the son should be put under articles, and no duty paid at the time, the father intending to wait to see whether it will be worth his while to pay the duty, I always refuse to sanction such a course. The Act of Parliament does not authorise an intentional non-payment." The same rule was acted on in Ex parte Breden, 12 C. B., N. S., 354. The facts in this case satisfy these requirements.

BOVILL, C. J.-I am of opinion that there was in this case a bona fide intention to pay the duty from the commencement of the service. Whether the circumstance of expecting moneys would have been sufficient ground for this intention I am not prepared to say, but the agreement with Barber, and its unfortunate result, strongly confirm the applicant's assurance of this intention. The good testimonials contained in the affidavits, the fact of there having been no intention to evade the duty, and the unforeseen emergency at the conclusion of the clerkship, and also the other circumstances of the case induce me to grant this application.

The other Judges concurred.

Attorney for applicant, J. R. L. Walmisley.

Monday, Jan. 28.

HUMBER (app.) v. DERBY (resp.) Indenture of apprenticeship-Covenant to pay back part of premium on failure of health-Death of apprentice. By an indenture of apprenticeship the master agreed to pay back part of the premium to the father if the apprentice's health failed within a certain period, so as to incapacitate him from following the profession. The pro

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duction of a medical certificate at any time before the end of that period was to be conclusive evidence of the failure of health. The apprentice died, and a certificate after the death was produced within the time. The father, however, had desired to continue his son's service up to the end of his life:

Held, upon appeal from the decision of an action in the County Court by the father for the repayment of the money, that all provisions of the deed were complied with which were required to give the father a claim for the part of the premium.

This was an appeal from a decision of the judge of the Westminster County Court. The material part of the special case was as follows:

This is an action brought to recover the sum of 50L, alleged to be due to the plt. (Derby) by the deft. (Humber), who is a civil engineer, under the covenant of a certain indenture of apprenticeship made the 6th May 1865, between the deft. of the one part, and the plt and James Derby (son of the plt) of the other part, whereby the said James Derby was apprenticed to the deft, as clerk, to be instructed in the practice and profession of a civil engineer, for three years from the 1st day of April in the said year, and amongst other things it was agreed that, in the event of the health of the said James Derby failing. so as to incapacitate him from following the said profession of a civil engineer before the 1st April 1866, the deft would refund to the plt. the sum of 501, in which case the indenture should become cancelled and void as and between the parties, it being understood and agreed between the parties that the production, at any time before 1st April 1866, by the plt. to the deft. of the certificate of two duly qua lifled medical gentlemen, should be conclusive evidence that the said James Derby's health had failed so as to incapacitate him from following the said profession.

James Derby, in consequence of illness, ceased to attend the deft.'s office on 8th May 1865, and the following letters were written by the plt.:

64, White Horse-street, Stepney, May 24th 1865. My dear Sir,-My son James has been and still continues very unwell; he is under an eminent physician, and I trust that in a few days he will so improve that he will be able to resume his duties again. Yours faithfully,

J. DERBY.

64, White Horse-street, Stepney, June 26th, 1865. Mr. Hamber, Dear Sir.-Mr. Gibbons called here last week to enquire about James, and no doubt told you how very ill he was. I am happy now to inform you that he is much better, and trust that he will continue to improve. He has had a bad time of it, for besides the old complaint he has had dropsy, but yesterday and to-day he has very much improved. I thought you would like to know how he was, and have therefore written.J. DERBI. I am, dear Sir, yours truly,

The apprentice, James Derby, died on the 4th Aug. 1865, and the following certificate was received by the deft. on the 28th March 1866:

We hereby certify that we saw in consultation, James Derby, on or about the 11th day of June 1865. That he was then suffering from diseased heart and dropsy, and that his health had then failed so as permanently to incapacitate him from following the profession of a civil engineer, and from carrying out his apprenticeship under an indenture made the 6th day of May 1865, between William Humber of the one part, and James Thomas Derby and the said James Derby his son, of the other part.

Dated this 24th day of March 1866.

ROBERT QUAIN, MD, 56, Harley-street
GEORGE R. ARNOLD, M R.C.S., LSA

Bosanquet argued for the app., the deft. in the County Court.-Death in this case put an end to all the covenants in the deed, and it was not such an event as it was contemplated by the indenture, should give the father a claim for the repayment of 501. And further, the father has no right to elect after his son's death that his son was some time before incapacitated from working at his profession. It appears from the letters that up to the son's death the father was anxious he should remain bound, and return to his duties, and, indeed, elected a claim for the money. Besides, by the indenture not to accept the alternative which would give him the failure of health ought to exist at the time of the certificate; and the certificate is not dated until seven months after the death. The rule laid down in Addison on Contracts, p. 843, is, "Contracts of apprenticeship, founded upon personal instruction

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