DIGEST OF ENGLISH LAW REPORTS. with a debt due to the constructors of the works.-lb. 5. The Court of Chancery will not appoint a manager of a railway.—Ib. 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 conduct of A.'s foreman was a sufficient appropriation of the bricks, and that the property in the whole of them passed to E. 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 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 PRINCIPAL AND AGENT, 1; SHIP, 3: VEN- SEPARATE ESTATE.-See HUSBAND AND WIFE, 1. 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. SHIP. . 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.-Ib. 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. DIGEST OF ENGLISH LAW REPORTS. amount 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 sought 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 Victoria, 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. Mackreth, 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 agreement 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 of 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 Rep. 2 Ch. 147. no 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, STATUTE 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 prin cipal, 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 REMAINDERMAN, 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 life, 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 1866, 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 Trustee 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. TENANT IN TAIL.--See EQUITY, 1; WILL, 3, 4, 12. TRUSTEE The law of Jersey, in case of bankruptcy, entitles each creditor in succession, ranking from the latest, to take the whole of the bankrupt'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, having 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 vendor 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 his 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 conveyance; 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. Helsham, Law Rep. 2 Ex. 72. See AWARD, 2; CONFIDENTIAL RELATION; CoVENANT, 1, 2; MORTGAGE, 1; SPECIFIC PERFORMANCE, 1, 2; WATERCOURSE, 2; WILL, 9. VESTED INTEREST.-See WILL. VEXATIOUS ACTION. The plaintiff brought 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 mortgage 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 trustees 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 GENERAL CORRESPONDENCE-APPOINTMENTS TO OFFICE-TO CORRESPONDENTS. circumstances, the second action was vexatious, WAIVER.-See COVENANT; FREIGHT, 2 LEASE, 4. WATERCOURSE. Digest of the Upper Canada Law Reports. TO THE EDITORS OF THE LAW JOARNAL. GENTLEMEN, -It would be a great boon to the profession if some arrangement could be entered into, whereby Robinson & Harrison's and Harrison & O'Brien's Digests, together with all the Reports since the latter, down to November last, could be put into one new 1. Mere non-user of an easement to discharge Digest. The former Digest has been out of print for some time, and is only to be found in the libraries of practitioners of some years stand foul water into a stream is not in itself an abandonment, but is evidence of it; and permitting others to incur expense in preparing to do what, if continued for twenty years, would destroy the easement, is strong evidence of abandoning, and now that the Law Society supply the ment.-Crossley & Sons v. Lightowler, Law Rep. Reports to all the members of the profession, 3 Eq. 279. 2. A riparian owner, having a right to pour foul water into the stream, if he sells land on the bank of the river, cannot claim a right (unless reserved in the conveyance) to continue to pour foul water into the stream in front of the land sold, though the water of the stream be not in actual use by the purchaser; because every riparian owner has a right to use the water in its natural state, whenever he pleases, free from such pollutions as, if continued twenty years, would become rights privileged by prescription.-16. GENERAL CORRESPONDENCE. Law School examination. TO THE EDITORS OF THE LAW JOURNAL, 1st. Is it in November in each year the examination takes place. 2nd. I was admitted on the books of the Law Society as a law student in May, 1866, and am desirous of going up for a scholarship in 1868-What years scholarship am I to study for; is it the second or third? as there are only four Scholarships and five years study required of a Law Student, I am in doubt about it. By answering these few questions you will oblige, Yours, A SUBSCRIBER. [The examinations for the scholarships given by the Law School take place in November of each year, we believe, a few days before Michaelmas Term, and our correspondent will in 1868 be entitled to compete for the third year's scholarship, as he will then have entered the third year since his admission to the Society. EDS. L. J.]. I am convinced that if such a work as I have suggested were published, there is not a practising member of the profession but would take a copy. What do you think about it? Yours, A BARRISTER. [We understand that the work suggested is in course of preparation, by Christopher Robinson, Esq., Q.C., Reporter of the Queen's Bench, assisted by Mr. F. J. Joseph, Barristerat-Law. It will be a work of much labour, as the design is, if possible, to compress into one volume the two Digests already published, as well as the cases since decided; and this can only be accomplished by striking out obsolete cases, and, abbreviating many of the head notes.-EDs. L. J.] REVIEW. THE LAW AND PRACTICE UNDER THE ACT FOR The above new books have been received, and will be reviewed next month. APPOINTMENTS TO OFFICE. Major-General CHARLES HASTINGS DOYLE, to be Lieutenant Governor of Nova Scotia.-(Gazetted October 19, 1867.) Colonel FRANCIS PYM HARDING, C.B., to be Lieutenant Governor of the Province of New Brunswick.(Gazetted October 19, 1867.) THE MARRIAGE LAWS. DIARY FOR DECEMBER. 3. SUN.. 1st Sunday in Advent. 2. Mon.. Last day for notice of trial for County Court. Audit of School section account. Clerk of every Municipality except Counties to return number of resident ratepayers to Receiver General 5. Thur.. Chancery re-hearing Term begins. 7. Sat... Michaelmas Term ends. 8. SUN.. 2nd Sunday in Advent. 10. Tues.. Quarter Sessions and County Court sittings in each County. 14. Sat... Grammar and Common School assessments payable, Collectors roll to be returned unless time extended. 15. SUN.. 3rt Sunday in Advent. 16. Mon.. Recorder's Court sits. 21. Sat... St. Tomas. 22. SUN.. 4th Sunday in Advent. 23. Mon.. Nomination of Mayors in Towns, Aldermen, Reeves and Councillors, and Police Treas. 25. Wed.. Christmas Day. Alterations in school sections take effect. 26. Thur.. St. Stephen. 27. Friday St. John Evangelist. 38. Sat... Innocents. 29, SUN.. 1st Sunday after Christmas. 30. Mon.. School returns to be made. Last day on which remaining half Grammar School Fund payable. End of Municipal year. Deputy Registrar in Chancery to make returns and pay over fees. City of Toronto Assizes. THE Upper Canada Law Journal. DECEMBER, 1867. THE MARRIAGE LAWS-No. IV. In the interesting debates which preceded the passing of the Quebec Act, it was the opinion of the law officers of the Crown that the position of the Roman Catholic Church, as determined by that act, was a position of toleration only and not of establishment. Thur. low, the Attorney General, thought that thereby "the Roman Catholic religion was only tolerated, with provision for the continuance of that maintenance which the clergy had before from the whole population, but which by this act is restricted to such people only as choose to become or to remain Roman | Catholics." And he remarked that nobody is thereunder compelled to be a Catholic. Cavendish's Debates, pp. 33, 34: Speaking with regard to the 5th section the Solicitor General Wedderborne says, "I can see by the article of this bill no more than a toleration. toleration, such as it is, is subject to the King's supremacy, as declared and established by the act of the first of Queen Elizabeth." Ib. p. 54. This also appears to be the view subsequently taken by the highest Imperial authorities, and communicated to the Canadian The For Governors in the Royal Instructions. instance, sect. 41 of the instructions sent to the Governor in 1818 is to this effect: "Whereas the establishment of proper regulations on matters of ecclesiastical concern is an object of very great importance, it will be your indispensable duty to take care that no arrangements in regard thereto be made, but such as may give full satisfaction to our new subjects in every point in which they have a right to any indulgence on that head, always remem. bering that it is a toleration of the free exercise of the religion of the Church of Rome only to which they are entitled, but not to the powers and privileges of it as an established church, that being a preference which belongs only to the Protestant Church of England." With regard to the Bishop of that Church it is noticeable that for a long time he was called the superintendent of the Romish Churches" (See Ord. L. C. 31 Geo. iii. c. 6). The title of "Bishop" first began to be commonly used about the year 1810, as appears from one of Sir James H. Craig's dispatches to the Colonial Minister, but not till 1813 was such title recognized by any official person in the government. In the debates we have already referred to, Lord North (the leader of the government) said, "With regard to the Bishop it is my opinion-an opinion founded in law-that if a Roman Catholic Bishop is professedly subject to the King's supremacy under the act of Queen Elizabeth, none of, those powers can be exercised from which dangers are to be apprehended." (Cavendish's Debates, p. 222). It will be observed that by the articles of capitulation, the British commanders carefully abstain from giving any guarantee that the Episcopal office should be continued under English rule. And we do not find in all subsequent Imperial or Colonial legislation that there has been any institution or restitution of the Roman Catholic episcopal office in Canada. True, in some of the later statutes reference is made to the Roman Catholic Bishop, but this is out of mere courtesy, and the employment of the name "Bishop" can never be taken to import into our system a sanction to all or any of the episcopal functions pertaining to that office as legally constituted. Practically the right of the British Sovereign to nominate Bishops for the Roman Catholic Churches in Canada is ignored; these ecclesi |