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DIGEST OF English REPORTS.
The obligation to pay money under an order of a court of equity is merely an equitable debt, and so is not a good ground for a petition for adjudication in bankruptcy.-Ex parte Blencowe,
Law Rep. 1 Ch. 393. BarrAtRY.-See COLLISION, 1. BILL OF LADING.
A bill of lading represented more goods to have been shipped than really were. This arose from the mistake of the mate, which there was evidence to show was caused by the fraud of the person who put the goods on board. The latter was either agent of the shipper or of his vendor. Held, there was evidence for the jury, that the misrepresentation was caused "wholly by the fraud of the shipper or of the holder, or some person under whom the holder claimed," within the meaning of the Bills of Lading Act (18 & 19 Vict. c. 111), $ 3. – Valieri v. Boyland, Law Rep. 1 C. P. 382.
See Collision, 1; Freight. BILLS AND NOTES.
1. An acceptor for honor of a bill of exchange is liable to one who has discounted it on the faith of his acceptance, if the name of the maker is forged, and the payee who is purported to have indorsed it is a fictitious person.—Phillips v. im Thurn, Law Rep. 1 C. P. 463.
2. A railway company incorporated in the usual way cannot accept a bill of exchange; and this defence may be taken on a plea denying the acceptance, though the acceptance was or. dered by the directors, and is under the seal of the company.—Bateman v. Mid-Wales Railway Co., Law Rep. 1 C. P. 499.
See Freigut. BOND.
The plaintiff agreed to purchase of S. the ship D. for a sum of money and the transfer to S. of the plaintiff's ship L. He also agreed to lend S. £6,000, on mortgage of the L., and S. agreed to repair her, so as to class her eight years A 1 at Lloyd's; and also to do anything remaining to be done to the D. within two weeks after that ship’s arrival in London. The defendant, as security for S., gave his bond to the plaintiff, conditioned to be void if S. forthwith repaired the L., and if S., within the said two weeks, did all that remained to be done to the D. The plaintiff and S. afterwards, without the defendant's knowledge, made another agreement, altering the terms relating to the completion of the D. Held, that the conditions in the bond were distinct and separate, and that the defendant, though released by the alteration from
his liability in regard to the completion of the D., was not relessed from his liability in respect to the L.—Harrison v. Seymour, Law Rep.
1 C. P. 518. CAPITAL.-See PARTNERSHIP, 2. CARRIER.
1. A common carrier of goods is not, in the absence of a special contract, bound to carry within a given time, but only within a time which is reasonable, looking only to the circumstances of the case; and therefore the defendants, a railway company, are not liable for damage to goods arising from delay which was caused by an unavoidable obstruction, resulting solely from the negligence of another company, who, by agreement with the defendants, sanctioned by statute, had running powers over the defendants' line.— Taylor v. Great N. Railway Co., Law Rep. 1 C. P. 385.
2. An injunction was prayed by A. against a railway company, under 17 & 18 Vict. c. 31, $3, to restrain them from unduly prejudicing A., by refusing to admit, after a certain hour, goods collected by A., and by receiving at a later hour goods collected by themselves and by B., to be forwarded the same night. It appeared that the hour was reasonable; that the company, in admitting their own goods, acted with. out intending to gain an advantage over other collecting carriers; and that they admitted B.'s goods in consequence of an injunction obtained by him. In two similar cases, injunctions had been granted to restrain railway companies from admitting their own goods at a later hour than those of others. Held (by Erle, C. J., and Montague Smith, J.), that the exercise of this jurisdiction, being subject to no review, and depending on the special facts of each case, cases previously decided under it are not binding as precedents of law are binding, and that the injunction prayed would interfere with traffic, and ought not to be granted. Held (by Willes and Keating, JJ.), that the above cases were binding precedents, and were also rightly decided ; and that the injunction ought to be granted.—Palmer v. London and S. W. Railway Co., Law Rep. 1 C. P. 588.
See COLLISION; STOPPAGE IN TRANSITU.
The provision in the 17 & 18 Vict. c. 104, $ 299, that a loss, arising from the non-observance by a ship of the rules laid down in the act, shall be deemed to have been occasioned by the wilful default of the person in charge of the deck, does not render an unintentional breach of the rules barratry.
Digest 2F ENGLISH REPORTS.
A collision arising from the negligence of the crew is not damage of the seas within the meaning of an exception in a bill of lading.
Therefore, if a ship-owner, by a bill of lading, undertook to deliver goods safely, “barratry of master or mariners, accidents or damage of the seas or navigation excepted,” and the ship came into collision with another by starboarding her helm contrary to the rules of the above act, and Bank and was lost, the ship-owner was liable for the loss of the goods.-Grill v. General IronScrew Collier Co., Law Rep. 1 C. P. 600.
See EVIDENCE, 1.
1. A commission was issued to examine witnesses by interrogatories and viva voce.
An agent, appointed by the defendants to execute the commission, conducted the examination entirely viva voce, not putting the written interrogatories that had been prepared. Held at the trial, against the defendant's objection, that the deposition was admissible, there being no suggestion that any advantageous question had been omitted. Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 600.
2. A requisition, with interrogatories and cross-interrogatories annexed, issued to French court to examine a witness. The judge of that court, having the interrogatories and cross-interrogatories before him, examined the witness by putting such questions as he deemed convenient; and no questions were put or suggested by the counsel and agents of the parties who were present. The court of divorce doubted whether the deposition was admissible, but declined to reject it.-Hitchins v. Hitchins,
Law Rep. 1 P. & D. 153. COMMON CARRIER.-See CABRIER. COMPANY.-See CORPORATION. CONFLICT OF LAWS.-See EXECUTOR, 3; WILL, 13. Contract.
1. By a written agreement, A, agreed to purchase from B. certain lands, and all the mines of coal, &c., under the same, at a certain price; and B. agreed to purchase from A, all coal that he might from time to time require, at a fair market price. Held, that A. could not sue B. for not taking the coal, without averring a readiness to perform his part of the agreement. Bankart v. Bowers, Law Rep. 1 C. P. 484.
2. A. contracted with B. to erect machinery on the latter's premises, the works being di. vided into different parts, but no time fixed for payment. All the parts were far advanced towards completion; some were so nearly finished that B. had used them, but no one
was entirely complete, though much of the necessary material was on the premises, when the premises, with the machinery and materials, were destroyed by an accidental fire. . Held, that A. could not recov
over the whole contract price; but that, as the machinery was to be fixed to B.'s premises, so that the parts of it, when fixed, would become his property, and as the contract involved an implied promise on B.'s part to keep up the building, A. could recover the value of the work and materials actually done and provided under the contract. Appleby v. Meyers, Law Rep. 1 C. P. 615.
3. A railway company agreed with a contractor, that, if he should be guilty of any delay, they might take the execution of the works out of his hands, and might use all or any of his plant or materials; that, in addition to all other rights and remedies, they might apply any moneys to which the contractor would otherwise be entitled in satisfying all losses or expenses occasioned by the delay; and that all the plant and materials, at the time of the delay, in or about the site of the works, should thereupon become the absolute property of the company and be valued or sold, and the amount of such valuation or sale credited to the contractor, in reduction of the moneys (if any) recoverable from him; but that the company should not be bound to use the plant and materials. The company under this agreement having taken the execution from the contractor, he brought an action for breach of contract, which, with all matters in difference was referred to arbitration. Held, that the plant and materials did not become the property of the company, unless loss or expense had been occasioned; and they were restrained, by an interlocutory injunction from removing and selling the plant and materials pending the arbitration. -Garrett v. Salisbury and Dorset Junction Railway Co., Law Rep. 2 Eq. 358. See AssumPSIT, 1-3; CORPORATION; COVENANT;
Frauds, STATUTE OF ; PRINCIPAL AND Agent, 1; SALE; SPECIFIC PERFORMANCE; WAR
1. The 24 & 25 Vic. c. 100, sec. 45, makes a conviction before a magistrate a bar to a civil action for the same assault. A police magis. trate, after hearing a case of common assault, ordered the accused to enter into recognizances and pay the recognizance fee, but did not order him to be imprisoned or to pay any fine. Held, that this was not a conviction within the statute. Hartley v. Hindmarsh, Law Rep. 1 C, P, 553,
Digest OF ENGLISH REPORTS.
2. A conviction before a magistrate can be the contract, and agreed to purchase another. proved only by the production of the record of Held, that a shareholder who had subscribed the conviction or an examined copy.-Hartley on the faith of facts stated in the prospectus, v. Hindmarsh, Law Rep. 1 C. P. 553.
which were false, and which the directors had CORPORATION.
no reasonable cause to suppose true, should 1. The plaintiff supplied coals to the defen.
have an injunction against an action for calls. dants, a corporation, the guardians of a poor.
--Smith v. Reese River Co., Law Rep. 2 Eq. law union, for the use of their workhouse,
264. under a written agreement executed by the 5. A prospectus of a company stated that a plaintiff, but not under the seal of the defen- certain invention, for working which the comdants. The defendants received the coals, used pany was formed, had been tested, and that, some of them, and offered to return the rest. according to experiments, the material could In an action for goods sold and delivered, held, be produced at a specified cost, but that it was that as the coals had been supplied and ac
intended to test the invention further: the incepted, and were such as must necessarily be vention turned out worthless, but there had supplied for the purposes for which the defen- been some testing. Held, that there was not dants were incorporated, the defendants were such misrepresentation as would enable a purliable for all that they had received, though
chaser of shares to set aside the contract, espethe contract was not under seal.---Nicholson v. cially where he had not sought redress in a Bradfield Union, Law Rep. 1 Q. B. 620.
reasonable time.-Denton v. Macneil, Law Rep. 2. Where the corporation of a city had been
2 Eq. 352. empowered by a statute to make certain public 6. A trading company can give a bill of sale improvements, and for that purpose to take
as security for work done for them.-Shears v. land compulsorily, to raise money on the credit
Jacob, Law Rep. 1 C. P. 513. of it, and to sell superfluous land to pay off the See EQUITY PRACTICE, 6-7; PRODUCTION OF debt; such statute, though only impliedly au
DOCUMENTS, 2; RAILWAY. thorizing the taking of more land than is abso
COVEXANT. lutely necessary for the desired improvements,
The owner of Blackacre mutually covenanted may be construed more favorably to them, be- with the owner of Whiteacre to bear the exing an existing public body, than it would be
pense of repairing a way for their joint use, in to persons on whom special powers had been
proportion to the area of their said properties, conferred by Parliament for a particular pur- by a deed containing a proviso, that the expose: lands so taken may be treated as taken
pense of such repair should be considered as a ' for the purposes of the statute;" and a con- charge in equity, and, as far as circumstances tract made by the corporation with another would admit, at law also, on the owners for the . person, to obtain lands under the statute and
time being of the said properties. Held, that sell them to such person, as soon as the statute this proviso did not create a charge on the shall pass, is not illegal. — Galloway v. Mayor lands, and therefore that, on the registration of and Commonalty of London, Law Rep. 1 H. L. Blackacre with an indefeasible title, under 25 & 34.
26 Vic, c. 53, the owner of Blackacre was not 3. A corporation was instructed by statute entitled to have notice of the proviso recorded. to maintain certain public docks, to receive -Drew's Estate, Law Rep. 2 Eq. 206. tolls for their use, and to appoint a harbor. See CONTRACT; LEASE, master, who should have power of regulating CRIMINAL LAW. the entry of vessels. Held, that the corpora- The 2 & 3 Vic. c. 71, sec. 24, which enacts tion was liable for damage caused by the negli
that any one brought before a magistrate, gence of its harbor-master, although the tolls
charged with having in his possession, or conwere not applicable to the use of the corpora
veying in any manner, any thing which may tors or corporation, but only to the mainte
be reasonably suspected of being stolen, and nance of the docks. — Mersey Docks Trustees v.
who shall not give an account to the magisGibbs, Law Rep. 1 H. L. 93.
trate's satisfaction of how he came by the same, 4. The prospectus of a mining company des- shall be guilty of a misdemeanor, is supplecribed in favorable terms a mine, the purchase mental only to 2 & 3 Vic. c. 47, and the secof which had been contracted for, and referred tions apply only to things in the streets, and to the articles which empowered the directors not in a house. — Hadley v. Perks, Law Rep. 1 to carry out or rescind any contract. The Q. B. 444. mine proving worthless, the directors rescinded See CONVICTION; EMBEZZLEMENT ; LARCENY.
DIGEST OF ENGLISH REPORTS.
1. In an action for fraudulently misrepresenting that a cow sold to the plaintiff was free from infectious disease, if the plaintiff has placed the cow with five others, who have caught the disease and died, the plaintiff can recover as damages the value of all the cows. - Mullett v. Mason, Law Rep. 1 C. P. 559.
2. One who for his own purposes brings, col. lects, and keeps on his land any thing likely to do mischief if it escapes, must keep it in at his peril, and is prima facie answerable for all damage which is the natural result of its escape, without proof of negligence on his part. -Fletcher v. Rylands, Law Rep. 1 Ex. 265.
3. If the plaintiff fails to establish any agreement of which special performance can be directed, a court of equity cannot grant relief in damages under 21 & 22 Vic. c. 27.-Lewers v. Earl of Shaftesbury, Law Rep. 2 Eq. 270. See EASEMENT; Escape; LEASE, 1; Lout, 2,
3; PLEADING, 2. Deen.
By voluntary deed a settlor gave property to A.. B., C., and D., in equal shares. He provided, that, if any of the four should die in his lifetime, leaving issue, the share of her so dying should be in trust for her children; and that if any of the four should die in his lifetime, with. out leaving issue, her share should go over and be added to the other shares. A, and B. were dead at the date of the deed, the former leaving issue, the latter without issue; but held, that the gifts over of their shares did not fail. -Barnes V. Jennings, Law Rep. 2 Eq. 448.
See Covenant. DEPOSITION.-See COMMIS. TO EXAMINE WITNESSES. DESCENT.
A marriage in a foreign country by one who has been attainted of treason and escaped thither, and who was afterwards executed on the same attainder, is valid and the children legitiinate; and, as the descent of property be. tween brothers is immediate, the descendants of one of the children can inherit property from the descendants of another.-Kynnaird v.
Leslie, Law Rep. 1 C. P. 389. DETINUE.
A. deposited debentures with B. as security for the payment of a bill at maturity, on the Agreement that B. might sell or otherwise dispose of the debentures, if the bill should not be paid when due. Before the maturity of the bill, B. deposited the debentures with C., to be kept as security till the repayment of a loan from C. to B. larger than the amount of the bill. The bill was dishonored; and, while it was still un
paid, A. brought detinue against C. for the debentures. Held (by Cockburn, C. J., Blackburn and Meller, JJ.; Shee, J., dissenting), that A. could not maintain detinue without having tendered the amount of the bill.- Donald v.
Suckling, Law Rep. 1 Q. B. 585. Devise.-See WILL; SEPARATE ESTATE, 2 ; VESTED
A. dug a well near B.'s land, which sank in consequence, and a building, erected on it within twenty years, fell. It was proved that if the building had not existed, the land would still have sunk, but the damage would have been inappreciable. Held, that B. had no cause of action against A.-Smith v. Thackerah, Law Rep. 1 C. P. 564.
See WATERCOURSE, EMBEZZLEYENT,
One employed to get orders and receive payment for goods, but who is at liberty to get the orders and receive the money where and when he thinks proper, and is paid by a commission on the goods sold, is not a clerk or servant within 24 & 25 Vict. c. 96, $ 68, against embezzlement. The Queen v. Bowers, Law Rep. 1
C. C. 41,
1. Under an order to amend by adding par. ties, the plaintiff cannot introduce allegations making a new case against the original defendants, though material as to the new defendants.—Barlow v. McMurray, Law Rep. 2 Eq. 420,
2. In an ex parte examination, the examiner ought not to refuse to allow questions to be put, unless on matters clearly and palpably not evidence.-Surr v. Walmsley, Law Rep. 2 Eq. 4?9.
3. A defendant cannot add a new issue of fact, not in any way suggested by his answer to the issues already directed for trial.- Morgan v. Fuller (1), Law Rep. 2 Eq. 296.
4. A decree dismissing a bill was by arrangement passed and entered at the registrar's office by the defendant's solicitor, acting, as the registrar knew, on behalf of the plaintiff. The defendant's solicitor afterwards obtained it from the office, and enrolled it. Held, that the decree ought not to have been delivered except to the plaintiff's solicitor; and, as the irregularity had delayed the plaintiff in appealing, the enrollment should be vacated.-Fryer v. Davics. Law Rep. 1 Ch. 390.
Digest of English REPORTS.
5. When a sole plaintiff dies, the suit may be revived after decree without bill filed. - Colyer v. Colyer, Law Rep. 1 Ch. 482.
6. A defendant, by putting in an answer, has not waived his right of calling on a plaintiff company to give security for costs, if, at the time of answer, he had not reason to believe that the plaintiff's assets were insufficient to pay costs; nor is he deprived of such right by having himself sued the plaintiffs, if the plaintiffs' bill is more than a mere defence to his bill.
Washoe Mining Co. v. Ferguson, Law Rep. 2 Eq. 371.
7. A limited company, when plaintiff in equity, may be required to give costs to an amount greater than £100.-- Imperial Bank of China v. Bank of Hidustan, Law Rep. 1 Ch. 437. See APPEAL, 1, 2; INTERROGATORIES, 3; PA
TEST; PRODUCTION OF DOCUMENTS; SERVICE
OF PROCESS. Escape,
In an action for an escape, the jury, in estimating the value of the custody, may take into account not only the debtor's own means, but all reasonable chances, founded on his position in life and surrounding circumstances, that any part of the debt would have been paid had he remained in custody.--Macrae v. Clarke, Law
Rep. 1 C. P. 403. ESTATE BY IMPLICATION.-See Trust. ESTOPPEL. — See HUSBAND AND WIFE; Patent, 1. EviDENCE
1. In a case of collision, the books containing the entries made by the coast-guard, and sent to the coast.guard office, are admissible to show the state of the weather at the time of collision, without calling the person who made the entries.--The Catharina Maria, Law Rep. 1 Adm. & Ecc. 53.
2. A statute enacted that the court might make a certain order on production of a certificate signed by the speakar of the House of Com
The standing orders of the House pro. vide, that, in the unavoidable absence of the speaker, the deputy speaker may perform his duties and exercise his authority. Held, that the court would take notice of the standing orders of the House, and the order was made accordingly.-Stocksbridge v. Railway Bill, Law Rep. 2 Eq. 364. See APPEAL, 5; COLLISION, 2, 3; COMMISSION
TO EXAMINE WITNESSES; CONVICTION, 2; Equity PRACTICE, 4 ; INSURANCE, 3; INTERROGATORIES; JURISDICTION, 2; NEGLIGENCE, 4; PATENT, 2, 3; PRODUCTION OF DocuMENTS; TRUSTEE; VENDOR AND PURCHASER, 4; WILL, 1.
EXECUTION.-See INTERPLEADER, 3; NEGLIGENCE, 3;
PRACTICE (AT LAW), 3. EXECUTOR,
1. A married woman executrix, who has proved the will and survived her husband, is liable for a devastavit committed by him when alive.-Svady v. Turnbull, Law Rep. 1 Ch. 494.
2. A. died, leaving his wife B. sole executrix and residuary legatee. She proved the will, married, made a will under a power, appointing C., her daughter by the first husband, her sole executrix and residuary legatee, and died, leaving her second husband and C. surviving. C. took limited probate of her will, and afterwards, with the consent of B.'s husband, who had assigned her all his interest in the residue of his wife's estate, administration of the rest of her personal estate. Held, that C. was entitled to administration of the unadministered goods of A.-Goods of Richards, Law Rep. 1 P. & D. 156.
3. A testator, domiciled in the Isle of Man, by deed duly executed as a will, conveyed his property to a trustee, on trust, to pay the income to his widow for life, and on her death to divide it among his children. The ecclesiastical court of the Isle of Man granted probate of it to the trustee, as executor according to the tenor. The court of probate followed this grant so far as to admit the document to probate, without inquiring whether or not it was testamentary, but not so far as to make the grant to the trustee as executor according to the tenor. Being satisfied that the testator intended to deprive the widow, who was pri. marily entitled to the grant, of any control over the administration, the court decreed administration with the will annexed to the trus. tee, under 20 & 21 Vict. c. 77, S 73.-_Goods of Cosnahan, Law Rep. 1 P. & D. 183. See ADMINISTRATION; MARSHALLING OF Assets;
WILL, 3, 10. FORGERY.-See BILLS AND NOTES, 1; VENDOR AND
PURCHASER OF REAL ESTATE, 2. FRAUDS, STATUTE OF.
1. A written proposal, signed by the party to be charged, and accepted by parol by the party to whom it is made, is a sufficient memorandum to satisfy the fourth section of the Statute of Frauds. Reuss v. Picksley, Law Rep. 1 Ex. 342.
2. A, sold some cheeses and candles, and sent an invoice of them to B.; B. returned the invoice with a note, signed by him on the back, to the following effect: “The cheese came to-day, but I did not take them in, for they were badly crushed. So the candles and cheese