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tion, and may give leave to appear to the writ and to defend the action if it shall appear to be reasonable to the Court or judge so to do, and on such terms as to the Court or judge may seem just.

Section 4 provides that in any proceedings under that Act it shall be competent to the Court or a judge to order the bill or note sought to be proceeded upon to be forthwith deposited with an officer of the Court, and further to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs thereof. After an appearance has been entered, the proceedings will be the same as in any other action, subject however to any limitation or condition that may have been imposed by the judge on making the order for leave to appear and defend. We have already noticed that by section 7 the two Common Law Procedure Acts, and the rules under them, are incorporated with this Act, and all the rights and privileges which either of them give to a plaintiff or defendant will apply.

By section 6 it is provided, that the holder of any bill of exchange or promissory note may, if he think fit, issue one writ of summons, according to this Act, against all or any number of the parties to such bill or note, and such writ of summons shall be the commencement of an action or actions against the parties therein named respectively; and that all subsequent proceedings against such respective parties shall be in like manner, so far as may be, as if separate writs of summons had been issued. This is intended to save the expense of several writs of summons, where one or more of the parties to the bill or note are sued on separate grounds of action; for instance, where both the drawer and the acceptor are sued. In such case there may be one writ of summons, though in the case of both defending there will be two appearances; and the subsequent proceedings in all respects as separate as if two writs had been issued. The word respectively is not used in the form where the writ is thus in fact addressed to several defendants requiring them to appear, not as liable in any joint capacity, but for separate causes of action, and in fact in distinct actions; but as a copy of the bill or note sued on, and its indorsements, has to be made on the back of the

writ, it will be shown by that in what character the defendant is proceeded against.

By section 8 it is provided, that the provisions of the Act shall apply, as near as may be, to the Court of Common Pleas at Lancaster and the Court of Pleas at Durham, and the judges of such Courts, being judges of one of the superior Courts of Common Law at Westminster, shall have power to frame all rules and process necessary thereto. And by section 9 it is provided, that it shall be lawful for her Majesty from time to time, by an Order in Council, to direct that all or any part of the provisions of the Act shall apply to all or any Court or Courts of Record in England and Wales; and within one month after such order shall have been made and published in the London Gazette, such provisions shall extend and apply in the manner directed by such order; and any such order may be, in like manner, from time to time altered and annulled; and in and by any such order her Majesty may direct by whom any powers or duties incident to the provisions applied under that Act shall and may be exercised with respect to matters in such Court or Courts, and may make any orders or regulations which may be deemed requisite for carrying into operation in such Court or Courts the provision so applied.

We have now gone through the several clauses and provisions of the Act.

*

J. P.

** Since the above observations were written, a case has been reported on the meaning of the words " disclosing a defence upon the merits," in the 27th section of the Common Law Procedure Act, 1852, Warrington v. Leake, C. L. Rep. vol. iii. p. 1085, where the majority of the Court of Exchequer held that they merely pointed to the common affidavit of merits, but Baron Martin thought differently. The case should be consulted with reference to the remarks made at page 397 of the foregoing article.

3 F

VOL. LIV. NO. CIX.

Short Notes of Cases.

EQUITY.

AGREEMENT.-SHIP REGISTRY ACTS.-PROCEEDS OF SALE OF SHIP.-FRAUD.

Armstrong v. Armstrong, Weekly Rep. 1854-5, p. 563.

Under the Merchant Shipping Act, 1854, as under the old statutes relating to shipping, no person, except his name is on the register, can acquire any interest in a ship; and such interest can be transferred only in the manner provided by that Act (s. 76-83). But in the present case, there being an agreement that the registered owner was himself to sell one-fourth of the ship, and to divide the proceeds among the plaintiffs, who were the persons entitled, the same was accordingly sold, and the Master of the Rolls held that the plaintiffs were entitled to the money received in respect of the share. "I am at a loss to

understand," said Sir John Romilly, "if the argument for the defendants holds good, how in any way the Court could get over the necessary frauds and evils which would result, because it would be to hold that the navigation laws not only preclude any person from having any right in a ship, except his name appears on the register, but also in the produce of the sale of the ship. Take this case, which is one of daily occurrence: A shipowner dies possessed of a large number of ships, and he appoints executors. Is it to be contended that, having left directions that his ships should be sold, and the money divided among legatees in certain proportions, thereupon the executors could say, "These are our ships; we are entitled to them by law?' which would be the case, because they would appear in the register in their names. 'We sell them, and as no interest can be given in the ships by any act except such as that specified in the statute, so neither can it be given in the proceeds of the ships, and the cestui que trusts under the testator's will cannot call us to account.' I apprehend," said his Honour, "that the argument cannot be carried to that extent. An agreement to sell a ship, and apply the proceeds for the benefit of a person not on the register, gives that person no interest in the ship; but when the ship was sold, he then would be entitled to have the proceeds applied in accordance with the agreement." M'Calmont v. Rankin (2 DeG.M.&G.

403) is a leading case on this point, as to the distinction between an interest in a ship, and an interest in the proceeds arising from its sale. The result of all the cases, both under the old law and under the recent Act, is that no agreement between the owners and other parties as to the proceeds of the sale of a ship can give an interest in the ship itself; but the present case goes to establish the rule, that when the ship is sold, the agreement as to what shall be done with the money produced by the sale holds good, and will be enforced by a Court of Equity. The leaning of Lord St. Leonards' mind in M'Calmont v. Rankin appears to have been in favour of the rule laid down by Sir John Romilly in this case. Vice-Chancellor Kindersley, however, in Coombes v. Mansfield (3 Drew, p. 201), remarking upon this decision, says :-"In the recent case of Armstrong v. Armstrong, before the present Master of the Rolls, reported at present only in the Weekly Reporter, but, as it appears to me, accurately reported, the Master of the Rolls conceived that there might be cases in which the Court would give relief; and in that case he did give relief by way of injunction, restraining the sale of certain shares of a ship. It is certainly a very strong case. I believe I may say that it is the first decided case in which it has been distinctly decided that in any case of fraud this Court gives relief against a registered assignment of a ship; and although I agree that it was a decision quite in accordance with justice and equity, I wish it to be understood that I do not express any concurrence in that decision, having regard to the policy of the Ship Registry Acts."

SHIP REGISTRY ACTS. -EQUITABLE MORTGAGEE OF SHIP. NOTICE.-REGISTER CONCLUSIVE AS TO FITNESS OF SHIP FOR REGISTRATION.

Coombes v. Mansfield, 3 Drew, 193.

The equitable doctrine of notice has no force against registration, in the case of a ship, under the Ship Registry Acts. "The cases in this court are numerous," said Vice-Chancellor Kindersley," and they clearly establish this,-that a mere contract in writing, however precise and regular, for the purchase and sale of a ship, does not entitle the purchasers to any relief, either as against the vendor, or as against any other person, who, coming afterwards with knowledge of the contract, takes an assignment of the ship, and has it registered. That is clearly decided. This Court has refused repeatedly to apply to the Ship Registry Acts those equitable doctrines which it applies to many other statutes; it considers that the policy of the Ship Registry Acts is such as to prevent the application of these doctrines."

This was the case where a person advanced money on a ship of which he took an assignment, which he registered, having had notice before he advanced the money that another person had a previous assignment for valuable consideration, but which was not registered; and yet the Vice-Chancellor held that there was no relief in equity on the ground of fraud, the Ship Registry Acts excluding the doctrine of notice.

In this case, it was also decided that the register is conclusive evidence that the ship was in a fit state to be registered under the Merchant Shipping Act, 1854; although there might be extrinsic evidence (as here) to show that the ship was not completed at the time of the registry, the Vice-Chancellor considered that he had no jurisdiction to declare the certificate void.

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Farina v. Silverlock, 1 Kay & Johns, 509.

Where the defendant printed labels which were known to be the trade-mark of the plaintiff, and sold such labels to any one who asked for them, enabling other persons thus to commit a fraud on the plaintiff, and it appeared that such fraud was committed, the plaintiff obtained an injunction upon interlocutory motion, although the defendant denied collusion with any one, and the plaintiff did not prove any particular instance in which he had, in fact, been defrauded by the conduct of the defendant.

SURETY, CONTRIBUTION.

Hitchman v. Stewart, 3 Drew, 271.

In equity there is an implied agreement amongst sureties that each will bear an aliquot part of the entire loss sustained by the other, with compensation, in the nature of interest, for the money paid by one of the sureties.

DEBTOR AND CREDITOR.-COMPOSITION DEED. NEGLECT IN SIGNING.-LACHES.-TIME.

Watson v. Knight, 19 Beavan, 369.

The debtor conveyed and assigned all his real and personal estate to trustees for the benefit of his creditors, who should execute the deed of assignment on or before the 2nd of June then next ; and creditors who should not execute the same

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