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DIGEST OF ENGLISH LAW REPORTS.

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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 uni. formly 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. PrixcIPAL AND Agext.

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, bas not implied authority to warraut. 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. pany 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 ihe vendor's assent; and that parol evidence was inadmissible to show that personal liability was not intended. -Kelner v. Bazter, 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 600 tons of cane sugar, at a certain maximum price, "to cover cost, freight and insurance; 60 tons more or less of no moment, if it enable you to get a suitable vessel.” So much sugar as 600 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 quanti. ties, from time to time, of different ersons.

Digest OF ENGLISH LAW REPORTS.

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The plaintiffs had thus purchased for the defen. dant 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.

7. 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.—John. ston 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; Suip, 4; TRUSTEE,

PROBATE PRACTICE.

If the court has no reasonable donbt 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. ?

Q. B. 55.
RAILWAY

1. The owner of a bouse, 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, SS 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 Rail. way Co., Law Rep. 2 Ch. 100.

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

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Digest of English Law Reports.

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with a debt due to the constructors of the works.- 1b.

5. The Court of Chancery will not appoint a manager of a railway.-16. REVOCATION OF WILL.-See WILL. Sale.

1. It depends on the intention of the parties whether the property in goods, to which something remains to be done before delivery, passes to a buyer at the time of the sale or on the completion of the goods. A., a brickmaker, in embarrassed circumstances, sold to B., to whom he was largely indebted, a large quantity of bricks. B. sent an agent, with an order from A., for the delivery of the bricks, and A.'s foreman told him he was ready to commence delivering, if a man who was in possession, under a distress for rent, was paid out; and he pointed out three lots, one of finished bricks, a second of bricks still burning, and a third of bricks moulded, but not burnt, as those from which he should make the delivery. A. having become bankrupt, the landlord sold some of the bricks, and B. sold the rest to C., who removed them. In trover, by A.'s assignee against C., held, that the condnct of A.'s foreman was a sufficient appropriation of the bricks, and that the property in the whole of them passed to I. at the time.- Young v. Matthews, Law Rep. 2 C. P. 127.

2. A broker employed by the plaintiff to buy shares, which the plaintiff paid for, procured the transfer to the plaintiff, and the plaintiff's signature thereto, and received from him the certificates and transfer to be registered. Soon after, he fraudulently procured the plaintiff to cancel his signature, and by the cancelled transfer and the certificates induced the vendor to make a fresh transfer to himself. He then had the shares registered in his own name, and mortgaged them. Held, that the first transfer was not destroyed by the cancellation, fraudulently procured, and the registration and mortgage should be set aside.- Donaldson v. Gillot, Law Rep 3 Eq. 274. See PrixciPAL AND AGENT, 1; SHIP, 3: VEN

DOR AND PURCHASER.
SEPARATE ESTATE.-- See HUSBAND AND WIFE, 1.
SERVANT. --See MASTER AND SERVANT,
SERVICE OF PROCESS.

The Court of Chancery has, under the general orders, jurisdiction to order service abroad in any suit. — Drummond v. Drummond, Law

Rep. 2 Ch. 32. SET-OFF.

A landlord was liable to his tenant for the costs of an injunction writ, which had been

dismissed. He subsequently recovered judgment against the tenant, in an action for rent. Afterwards he became liable to the tenant for damages assessed in respect of the wrongful injunction. Held, that he was entitled to set off his judgment debt against the damages, which were of less amount than the debt, but that he could not set off the debt against the costs of the suit.— Throckmorton v. Crowley

Law Rep. 3 Eq. 196. Saip.

1. A mortgagee in possession of a vessel is not liable for necessaries, unless the master, in ordering them, acted as his agent.-The Troubadour, Law Rep. 1 Adm. & Ecc. 302.

2. In a cause of necessaries, an allegation that a defendant was in possession of the vessel at the date of the supplies, and personally liable for them, is not a good reply to an answer of the defendant claiming to be a mortgagee prior to the date of supply.- 1b.

3. A shipbuilder in America built several ships, mortgaged them there, and sent them to England for sale. The mortgages were duly registered in the United States; but notice of the mortgage having, in one case, been indorsed on the certificate of registry, and having impeded the sale, it was agreed that no such notice should be indorsed in future. Another ship was accordingly sent over and sold; the shipbuilder received the purchase money, and failed. The mortgagee filed his bill against the purchaser. Semble, that a purchaser of a foreign ship is bound to inquire as to the title; but held, that the mortgagee had so acted in this case as to suppress the mortgage, and to make the shipbuilders his agents for sale, and the bill could not be maintained.--Hooper v. Gumm, Law Rep. 2 Ch. 282.

4. A ship was chartered for a voyage from O., to load from the factors of the affreighter a full cargo at 188. per ton; the captain to sign bills of lading at any rate of freight without prejudice to the charter; the ship to be addressed to charterer's agents at O., on usual terms. The ship was accordingly consigned to the charterer's agent at O., and was put up by them as a general ship, without any intimation that she was under charter. The plaintiff, not knowing that the ship was chartered, shipped some casks of wine, and received bills of lading in the common form, signed by the master. The wine was stowed by a stevedore appointed and paid by the charterer's agents, the money being ultimately repaid them by the master. The wine having leaked from improper stowage, held, that as the charter did not

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DIGEST Op English Law REPORTS.

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åmount to a demise of the ship, and the owners remained in possession by their servants, the master and crew, the shippers could look to the owners as responsible for safe carriage. ---Sandeman v. Scurr, Law Rep. 2 Q. B. 86.

5. A sailing ship of 2,000 tons, with an auxiliary steam screw of 130 horse-power, and carrying 550 tons of coal, sailed from Australia for England, and soon after so damaged her masts by collision with an iceberg as to lose all power of sailing She reached Rio under steam alone, having nearly exhausted her stock of coals. The repairs necessary to restore her sailing powers would have cost many thousand pounds more than in England, would have taken several months, and would have required her cargo to be unshipped. The captain therefore purchased coals, and completed the voyage under steam alone. The ship-owners songht to charge the cost of the coals against the owners of the cargo as general average. Held (1), that assuming any of the expenses of repairing at Rio to be chargeable as general average, yet that expenses incurred by one course could not be apportioned according to what might have been the facts if a different course had been adopted; (2) that the shipowners were bound to give the services of the auxiliary screw, and to make disbursements for all necessary fuel, though circumstances caused these disbursements to be extraordinarily heavy.-- Wilson v. Bank of l'ictoria, Law Rep. 2 Q. B. 203...

See FREIGHT. SOLICITOR.

1. If a plaintiff continues the authority of his attorney after judgment, by allowing him to proceed to obtain satisfaction, the attorney retains power to bind his client by a compromise.—Butler v. Knight, Law Rep. 2 Ex. 109.

2. One member of a firm of attorneys has no implied authority to bind the firm, by a postdated cheque drawn in its name.- Forster v. Muckreth, Law Rep. 2 Ex. 163.

3. The court will permit articles of clerkship to an attorney to be enrolled nunc pro tunc (the stamp duty and penalty being paid), when the omission to stamp and enrol them at the proper time arose from some unforeseen circumstance. ---Ex parte Darville, Law Rep. 2 C. P. 244.

See AWARD, 2; CONTEMPT, 2. SPECIFIC PERFORMANCE,

1. Specific performance will not be decreed of a contract to purchase land, made for the purpose of setting aside, on the ground of fraud, a previous agreement affecting the property.- De Hoghton v. Money, Law Rep. 2 Ch. 164.

2. One filing a bill for specific performance cannot join, as defendants, persons claiming under a previous agreenient which the bill seeks to impeach.--Ib.

3. A railway company agreed with a landowner to make a road in a certain manner, but afterwards altered the plan. While the work was going on, the landowner filed a bill for specific performance of the agreement, and a motion for injunction had been ordered to stand to the hearing, the company undertaking to abide by the decision the court. The railway had since been opened for traffic. Held, that the convenience of the public was ground for refusing specific performance. Raphael v. Thames Valley Railway Co., Law Pep. 2 Ch. 147.

4. On bill filed for specific performance of a resolution by the directors of a company to allot a certain number of shares to the plaintiff, it appeared that all the shares had been allotted before the filing of the bill. Held, that as specific performance was impossible, the plaintiff's claim for damages in equity, under Sir H. Cairn's Act, failed also.-Ferguson v. Wilson, Law Rep. 2 Ch. 77.

See Award, 2; PRINCIPAL AND AGENT, 7; WILL, 9. STATUTE OF FRAUDS.-- See FRAUDS STATUTE OF. STATUTE OF LIMITATIONS. - See LIMITATIONS, STA

TUTE OF.

SURETY.

The surety on a note given to secure a loan to a member of a club formed for the purpose of raising money by monthly subscriptions, lending it to the members, and dividing the proceeds when the shares are fully paid up and the loans repaid, cannot rely on the monthly subscriptions and premiums paid by his principal, to reduce his liability on the note.

Wright v. Hickling, Law Rep. 2 C. P. 199.
SurvivoRSHIP.-See WILL, 4-6.
TENANT FOR LIFE AND REMAINDERJAN.

1. A testator gave real and personal estate to trustees to receive and accumulate the rents and profits till A. should attain twenty-one, when he was to be put in possession of the estate for life. Held, that there must be an apportionment of the rents and profits, under 4 & 5 Wm. IV. c. 22, up to the time of A.'s attaining twenty.one.— Wheeler v. Tootel, Law Rep. 3 Eq. 571.

2. In 1831, A., a tenant for lifo, impeachable for waste, with remainder to his son B. in fee, cut timber, such as the court, if applied to, would order cut, and received the proceeds. B. came of age in 1834; lived with, and was in

Digest OF ENGLISH LAW REPORTS.

partnership with A. for some years, and died intestate in 1844, leaving C., his only child. A. died in 1864; C. came of age in 1865, and in 1860, as executor of B., filed a bill against A,'s executor for an account of the proceeds. Held, that the right of suit accrued to B. in 1864, and therefore was barred by the Statute of Limitations; held, further, that the court would presume that B.'s claim had been settled between him and A.-Seagram v Knight, Law Rep. 3 Eq. 398.

3. If a trust fund has been paid into court under the Trustce Relief Act, the costs of a petition by the tenant for life, for payment of the dividends, must come out of the income.In re Marner's Trusts, Law Rep. 3 Eq. 433.

See FixtURES, 2. TEXANT IY TAIL.--See Equity, 1; WILL, 3, 4, 12. Trade Mark.-See COPYRIGAT, TRUST.-See COMPANY, 1; CONFIDENTIAL RELATION;

MORTGAGE, 3; TRUSTEF. TRUSTEE

The law of Jersey, in case of bankruptcy, entitles each creditor in succession, ranking from the latest, to take the whole of the bankrupl's estate, with its liabilities--to become, in fact, an assignee. A. was creditor of a bankrupt. A.'s trustee or procureur became such assignee. Held, that the fact that the trustee incurred a possibility of loss did not free him from the duty of accounting to his cestui que trust for all profits made by him as such assignee. - Williams v. Stevens, Law Rep. 1 P. C. 352.

See COVENANT, 4; LIMITATIONS, STATUTE OF, 1. Ultra Vires.--See DIRECTORS, 1. VENDOR AND PURCHASER.

1. A railway company, baving contracted to buy property, took possession, and turned out the weekly tenants to whom the property was sublet by the vendor's lessees. After these tenants were turned out, the property was damaged by strangers, who entered and pulled some of the houses to pieces. Held, that the damage having been occasioned by the company's taking possession and turning the tenants out, they must pay the purchase money into court, and had lost the option of giving up possession. — Pope v. Great Eastern Railway Co., Law Rep. 3 Eq. 171.

2. A condition of a sale authorized the ven. dor to annul the sale by written notice, if the purchaser should insist on any requisition which the vendor was unable to comply with. The purchaser insisted on a requisition, after being told that the vendor could not comply

with it. Held, that the vendor could annul the sale by written notice, and that such notice need not give the purchaser time to waive lis requisition; and further, that the description of property held under a lease for twenty-four years less three days, as held under a lease for twenty-four years (the vendor relying on the promise of the person entitled to the three days to concur), was not such a misrepresentation as to disentitle the vendor to the benefit of the above condition.-Duddell v. Simpson, Law Rep. 2 Ch. 102.

3. At a sale of land, stated in the particulars of sale as being let at an annual rental of £30, one of the conditions was, that if any error whatever appeared in the particulars of sale, such error should not annul the sale, but a compensation should be given, to be settled by two referees, one to be appointed by either party. After the conveyance had been executed, an. error in the rental as stated was discovered The vendor having failed to appoint a referee for seven days after the purchaser had appointed one, and after a written notice requiring him to appoint, the purchaser, under the Common Law Procedure Act, 1854, § 13, appointed his. referee sole arbitrator, and he awarded compensation to the purchaser. Held (1), that the error was a proper subject of compensation, though not discovered till after the convey. ance; but (2) that the reference, being one of the amount of compensation only, was not a reference of an existing or future difference within the meaning of the act, and that therefore the purchaser had no power to appoint his referee sole arbitrator.-Bos v. bielsham, Law Rep. 2 Ex. 72.

See AWARD, 2; CONFIDENTIAL RELATION; Co. VENANT, 1, 2; MORTGAGE, 1; SPECIFIC PERFORM

ANCE, 1, 2; WATERCOURSE, 2; WILL, 9.
VESTED INTEREST.-See WILL.
VEXATIOUS Action.

The plaintiff bronght an action of ejectment to recover toll-gates, &c., as executor of the mortgagee of the tolls, in order to enforce payment, but, not being able to produce the mort. gage deed, was nonsuited. He admitted at the trial that his testator had been bankrupt. After the trial, the trustees of the road obtained a new act, and inserted the testator's name in a schedule as mortgagee. The plaintiff then brought an action against one of the trustees, claiming a mandamus, commanding the trug. tees to execute a fresh mortgage to him as executor. Since the first action he had become bankrupt. Held, that the two actions were substantially the same, and, under the peculiar

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