Page images
PDF
EPUB

the company. The instruments were sold in open market. The company being in course of winding up, it being admitted that the company had equities against the parties to whom the instruments were originally issued :-Held, first, that the instruments were promissory notes, or, if not promissory notes, negotiable instruments, and amounted to contracts to pay anyone who might happen to be the bearer. Imperial Land Co. of Marseilles, In re, Colborne, Ex parte, 40 L. J., Ch. 93; L. R. 11 Eq. 478; 23 L. T. 515; 19 W. R. 223.

Held, secondly, that consequently holders for value without notice of the equities were entitled to prove for the amount due free from equities, and that the right to prove was not affected by the fact that holders had purchased after the passing of resolutions to wind up the company, though without notice of their having been passed. Ib.

The winding-up, which commenced by resolutions duly confirmed, was being continued under the supervision of the court:-Held, that the supervision order related back for all purposes to the confirmatory resolution, and consequently that the proof could only be made for the principal and interest to the date of the confirmatory resolution; and that this question was not affected by the fact that interest had been paid to a later date. Ib.

By a bond, under its corporate seal, an American railroad company acknowledged itself to be indebted to two named trustees or bearer in a principal sum which would be due, and the company would pay, to the holder of the bond on the 1st of May, 1903; and the company further promised to pay interest half-yearly in accordance with the annexed coupons which were payable to bearer. It was further stated on the face of the bond that it was secured by a mortgage of even date made by the company to trustees upon the railroad of the company, together with the rolling stock. This mortgage provided, amongst other things, that in case of default of payment of interest for ninety days, the principal on all the bonds should forthwith become due and payable :-Held, that the bonds were negotiable instruments according to the law merchant. Venables v. Baring, 61 L. J., Ch. 609; [1892] 3 Ch. 527; 67 L. T. 110; 40 W. R. 699.

Deposit Note.]-A deposit note for money, like a deposit for goods, passes by delivery of the instrument, and requires no assignment. Woodhams v. Anglo-Australian and Universal Life Assurance Co., 3 Giff. 238; 8 Jur. (N.S.) 148; 5 L. T. 629; 10 W. R. 290.

Post-Office Order cashed through Bankers.]The plaintiffs banked with the defendants. It was the duty of the plaintiffs' secretary to pay all moneys received by him on behalf of the plaintiffs into the defendants' bank to the credit of the plaintiffs. The secretary without the knowledge of the plaintiffs kept an account at the defendants' bank. He paid into the defendants' bank to his own credit certain post-office orders belonging to the plaintiffs which the defendants subsequently cashed. The post-office regulations with regard to post-office orders provide that, when presented for payment by a banker, they shall be payable without the signature by the payee of the receipt contained in the

ing the order is written or stamped upon it :— Held, that there had been a wrongful conversion of the post-office orders above mentioned by the defendants; and that the regulations of the post-office with regard to the payment of postoffice orders presented through bankers did not give to those instruments in the hands of bankers the character of instruments transferable to bearer by delivery so as to bring the case within the doctrine of Goodwin v. Robarts (1 App. Cas. 476), and thus give the defendants a good title to the post-office orders independently of the authority given to the plaintiffs' secretary. Fine Art Society v. Union Bank, 56 L. J., Q. B. 70; 17 Q. B. D. 703; 55 L. T. 536; 35 W. R. 114; 51 J. P. 69—C. A. J. M.

NEPHEWS AND NIECES. Gifts to.]-See WILL.

Fiduciary Relationship.]-See Fraud.

NEUTRALITY.

See CONTRACT-INTERNATIONAL LAW

-SHIPPING (INSURANCE).

NEVIS.

See COLONY.

NEW BRUNSWICK.

See COLONY.

NEWFOUNDLAND.

See COLONY.

NEW SOUTH WALES. See COLONY.

NEWSPAPER.

1. Proprietors' Rights, 136.

2. Libellous.-See DEFAMATION. 3. Copyright.-See COPYRIGHT. 4. Publication of Proceedings.-See COXTEMPT OF COURT.

5. Restraining use of Name.-See TRADE.

1. PROPRIETORS' RIGHTS.

Who are.]-The fact of A.'s name appearing

order, provided the name of the banker present- as the proprietor of a newspaper in the declara

tion filed at the stamp office, pursuant to the 6 & 7 Will. 4, c. 76, ss. 6, 8, does not render A. liable in respect of a contract entered into specifically with B., the real proprietor of the newspaper, after A. has ceased to be interested therein. Holcroft v. Hoggins, 2 C. B. 488; 15 L. J., C. P. 129.

A., the proprietor of a newspaper, prevailed on B. to make and deliver at the stamp office an affidavit that he, B., was the proprietor of the paper; B. afterwards agreed to sell the paper to D. A. having become insolvent, his assignees filed a bill to set aside the sale for fraud :-Held, that as B. had, at A.'s instance, violated the statute, which requires the true names of the proprietors of newspapers to be inserted in the affidavit, A.'s assignees were not entitled to the relief asked. Harmer v. Westmacott, 6 Sim. 284.

that effect, and that the bill of H. must be dismissed. Hutton v. Beeton, 9 Jur. (N.s.) 1310. When a mortgagee of a share of a newspaper allows the newspaper to be carried on by the mortgagor and his partner, he can only claim the value of the share and profits after satisfying every claim which the partner may have upon taking the accounts of the partnership, including interest upon capital, whether the business was carried on with or without the partner's knowledge of the mortgage. Kelly v. Hutton, 37 L. J., Ch. 917; L. R. 3 Ch. 703; 19 L. T. 228; 16 W. R. 1182.

On motion by a mortgagee of a newspaper, a receiver and manager of the mortgaged property was appointed until the hearing of the cause, on undertaking to print, publish, and edit the paper in the meantime, and forthwith to register himself as proprietor. Chaplin v. Young, 6 L. T. 97. And see Kelly v. Hutton, 20 L. T. 201; 17 W. R. 425-L.JJ.

Contract to Publish News-Editions.]-On a contract to furnish intelligence to the proprietor of a morning newspaper, to be published Copyright Act, 1842, and requires registration Registration.]-A newspaper is within the therein only, on the day after it was received, under that act in order to give the proprietor the the defendant also publishing an evening edition of the same paper; the contract being that the copyright in its contents, and so enable him to plaintiff should be at liberty to send the intelli-L. J., Ch. 621; 17 Ch. D. 708; 44 L. T. 727; 29 sue in respect of a piracy. Walter v. Howe, 50 gence to other morning newspapers :-Held, that W. R. 776. the publication of it in the evening edition on the day on which it was received was a breach of contract, for which the plaintiff was entitled to recover the sums he would otherwise have received from the other morning papers. Wood v. Johnston, 1 F. & F. 455.

Mortgage.]-Where a mortgagee of a newspaper, by an improper exercise of a power of sale, entered into possession, as purchaser, and printed the paper, receiving the profits and providing the necessary funds, a court of equity having set aside the purchase, refused to allow him to charge credit prices for printing, even though on the mortgage account a balance might be found due to him. Robertson v. Norris, 1 Giff. 428; 5 Jur. (N.S.) 1238; 1 L. T. 123.

H. and S. were joint proprietors of newspapers, subject to a mortgage to M. S. became bankrupt in February, 1861. M., in March, 1861, sold H.'s moiety in the copyright to B., to be paid for by bills of exchange. M. continued to be mortgagee of that moiety, and he, on the 5th March, 1861, entered into an agreement with B., whereby B. agreed to purchase from H. one-half share of the newspapers; and M., in May, 1861, entered into an arrangement with B. for the sale to him of S.'s share in the newspapers, at the same price as paid for the other moiety. Bills of exchange were given to M. at long dates, upon which interest at 61. per cent. was to be charged. B. took possession of the property, managed it, and caused the name of D. to be entered at Somerset House as the printer; but H. & B. were entered into the books there as sole proprietors, subject to mortgages to M. On the 17th July, 1862, B. was required to render accounts of the profits to H., on the ground that they were partners; but he refused to do so, alleging that he was the sole proprietor, and he caused his name to be entered at Somerset House as such. On the 2nd October, 1862, H. filed a bill to dissolve the partnership, and for accounts; and on the 30th October, 1862, B. filed a cross bill against M. and H. for specific performance:-Held, that there must be a decree to

To enable the proprietor of a newspaper to sue in respect of a piracy of any article therein, he must show, not merely that the author of the article has been paid for his services, but that it has been composed on the terms that the copyright therein shall belong to such proprietor. Ib.

Bankruptcy-Goods and Chattels.]-B. was the sole registered proprietor, under 6 & 7 Will. 4, C. 76, of certain newspapers published by him on he was the owner of the type and plant used in premises of which he was rated occupier, and the publication. He mortgaged the newspapers, type, and plant to F., who took steps to alter the registration of proprietorship. The sheriff entered under an execution, issued by a creditor of B., and, though possession was demanded by F., remained in possession till B. had become bankrupt, which took place after two days :—Held, that the right of publishing a newspaper is goods and chattels within the meaning of the Bankrupt Act as to reputed ownership. Foss, Ex parte, Baldwin, In re, 2 De G. &. J. 230; 27 L. J., Bk. 17; 4 Jur. (N.S.) 522; 6 W. R. 417.

Order and Disposition.]—Held, also, that the type and plant were not within the order and disposition of the bankrupt, at the time of his bankruptcy, with the consent of the true owner, but that the right of publication of the newspapers was not capable of seizure by the sheriff, and that as the bankrupt continued the sole registered proprietor, and nothing had been done to make it apparent that he was not the sole owner, the doctrine of reputed ownership applied to the newspapers. Ib.

Right to Name.]-The use for many years of two words of common use, Newcastle Chronicle, as the name of a newspaper, does not give the owner of the newspaper an exclusive right to the use of one of the words, Chronicle, so as to entitle him to restrain the defendant from publishing in the same town a newspaper having for its name the word Chronicle, in conjunction with another, that is to say Sporting Chronicle; the appearance and contents of the two papers

being dissimilar, there being no evidence of any one having been deceived, and no apparent intention to deceive on the part of the defendant. Cowen v. Hulton, 46 L. T. 897.

There is nothing analogous to copyright in the name of a newspaper, but the proprietor has a right to prevent any other person from adopting the same name for any other similar publication, which is a chattel interest capable of assignment. Kelly v. Hutton, 37 L. J., Ch. 917; L. R. 3 Ch. 703; 19 L. T. 228; 16 W. R. 1182.

See also TRADE.

Share Personal Property. ]-A share in a newspaper shall be considered as personal property of proprietor, and the profits of printing the same, subsequent to his death, be distributed accordingly. Gibblett v. Read, 9 Mod. 459..

Partnership. All the proprietors of the M. paper being also, with the exception of one, proprietors in the E. paper, an injunction to restrain using effects of former partnership, to

Effect of]-The effect of a nolle prosequi entered as to any portion of a plaintiff's demand, before trial, was to withdraw that part of his claim from the consideration of the jury; but such entry left the part of the claim so withdrawn so entirely unaffected by the verdict, as to enable the plaintiff to maintain a fresh action in respect of it. Amor v. Cuthbert, 3 Man. & G.1; 3 Scott (N.R.) 325; 1 D. (N.S.) 160; 10 L. J., C. P. 274. S. P., Jones v. Brassey, 24 L. T. 947.

NONJOINDER.

Of Parties.]-See PRACTICE.

NON PROS.

assist latter, in consideration of an annual sum; See PRACTICE (DEFAULT OF PLEADING).

was refused where there had been agreement permitting use on those terms which had been long acted under. Glassington v. Thwaites, 1 Sim. & S. 124; 1 L. J. (0.s.) Ch. 113.

But injunction granted to restrain using effects not included in agreement. Ib.

NONSUIT.

See PRACTICE (TRIAL).

NEW TRIAL.

See PRACTICE (NEW TRIAL)-COUNTY

COURT.

NEW ZEALAND.

See COLONY.

NEXT FRIEND.

NOTARY.

Apprenticeship and Articles.]—A party bound apprentice for the term of seven years, who, during the whole of that term, acted as a banker's clerk daily till five o'clock in the evening, and after that hour went to the notary and presented bills of exchange, and prepared protests, was not actually employed by the public notary during the whole period of seven years within 41 Geo. 3, c. 79, s. 7, and consequently he was not entitled to act as a notary; and the court refused a mandamus to the Scriveners' Company to admit such a party to the freedom of the company, in order that he might be admitted to practise as

See HUSBAND AND WIFE-INFANT-a notary. Rex v. Scriveners' Co., 10 B. & C.

LUNATIC.

NEXT OF KIN.

Gifts to.]-See WILL.

511; 8 L. J. (o.s.) K. B. 199.

Before 6 & 7 Vict. c. 90, s. 1, which entitles an apprentice to a notary, after the regular term of service under 41 Geo. 3, c. 79, to be admitted a notary, although such apprentice, during the time, is also articled clerk to the same master as an attorney, an apprentice to a notary being also articled clerk to the same master as an attorney, could not serve, so as to be entitled to become a

Distribution of Estate.]-See EXECUTOR AND notary. Scriveners' Co. v. Reg., 3 G. & D. 272 ; ADMINISTRATOR.

NOLLE PROSEQUI.

See Order XXVI., r. 1.

3 Q. B. 939; 12 L. J., Ex. 492-Ex. Ch.

Appointment.]-The master of the faculties, in exercising the discretion given to him by 3&4 Will. 4, c. 70, s. 2, in the appointment of notaries public, will, whilst paying due regard to vested interests, above all things, consider the convenience and accommodation of the merchants,

In Civil Proceedings.]-See PRACTICE (DIS- shipowners and bankers carrying on business in CONTINUANCE).

In Criminal Matters.]-See CRIMINAL LAW.

the town where it is proposed to appoint additional notaries. Increase of population alone, unless accompanied by an increase of shipping

and mercantile business, is no sufficient ground | which is given by the law of France to the act for the appointment of additional notaries. of a French notary public. Ib. Graham v. Smart, 9 Jur. (N.S.) 387.

Protests Evidence.]-A notarial protest under seal is no evidence that a foreign bill of exchange has been presented for payment in England. Chesmer v. Noyes, 4 Camp. 122.

In an action on a foreign bill presented abroad, the dishonour of the bill will be proved by producing the protest purporting to be attested by a notary public; or, if there is no notary near the place, by an inhabitant in the presence of two witnesses. Anon., 12 Mod. 345.

Notarial Instrument-Stamping.]—A notarial instrument in the form of Schedule H given by 21 & 22 Vict. c. 76, s. 12, is correctly stamped with a one-shilling stamp. Eglington (Trustees) v. Inland Revenue Commissioners, 3 H. & C. 871: 34 L. J., Ex. 225; 11 Jur. (N.S.) 676; 12 L. T. 707; 13 W. R. 902. Ste 54 & 55 Vict. c. 39, schedule.

[blocks in formation]

When a power of attorney has been executed before a notary public in a British colony, an affidavit verifying the notarial signature is not necessary under 15 & 16 Vict. c. 86, s. 22. Goff, In re, 12 Jur. (N.S.) 595; 14 L. T. 727.

Notary public has credit everywhere, but certificate of magistrate of colony abroad requires evidence to his character. Hutcheon v. Mannington, 6 Ves. 823; 2 R. R. 115.

The signature of a notary to an act done by him in a foreign country must be duly authenticated by a person in England. Davis, In re, 21 L. T. 137.

Initialing Documents.]—A notarial deed was written on several pieces of paper:-Held, that each paper did not require the initials of the notary. Himel v. Panet, 46 L. J., P. C. 5; 2 App. Cas. 121; 35 L. T. 741.

Swearing Affidavits before.]—See EVIDENCE.

Notarial Acts on Payment out of Court.]See PRACTICE (PAYMENT OUT OF COURT).

Affidavit of Debt.] Affidavit to prove a foreign debt must be attested by a notary. Moens, Ex parte, Maiden, In re, Mont. 15.

3.

NOTE.

Bank Note.]-See BANKER.

Promissory Note.]-See BILLS OF EXCHANGE.

Broker's Note.]-See SALE OF GOODS.

NOTICE.

Through Particular Persons.

a. Agent, 147.

In an action brought to recover a piece of land in Lower Canada, the pleadings challenged a strict proof of the title. The land had been devised to Mary, the wife of "James" L. The plaintiff claimed the land under a power of attorney executed by "Alexander" L. and Mary his wife; and on the face of the power of attorney it was stated that this Alexander L. 1. General Principles, 143. was the same person who in the will was called 2. Time when Material, 146. James, but no other evidence of their identity was produced. To the power of attorney there were two attesting witnesses, one of whom was a notary public of Upper Canada. Neither of these witnesses was produced, but a certificate that the notary public had been duly appointed was put in :-Held, that the plaintiff had failed to make out his title; first, because the identity 4. was not made out between the devisee and the 5. By Negligence and Non-inquiry, 173. husband of the devisee, and the persons professing 6. By Recitals and References in Documents, to execute the power of attorney; and, secondly, because the notarial certificate was not suffi7. cient proof of the execution of the power of attorney. Nye v. Macdonald, 39 L. J., P. C. 34; 8. L. R. 3 P. C. 331; 23 L. T. 220; 18 W. R. 9. 1075.

A notary public of Upper Canada, a province regulated by English law, has no power to certify to the execution of a deed, so as to make his certificate evidence, without more, that the deed was executed; and the circumstance that by French law a French notary public has a greater power, and his certificate a greater validity, does not give a power to the act of the English notary upon English soil, so that this act, when brought into question upon French soil, should have the effect given to it there

b. Counsel, 151. c. Partner, 151. d. Solicitor, 152. e. Trustees, 166. By Tenancy, 169.

176.

Of Contents of Documents, 184.
By Want of Deeds, 185.
In Particular Cases.

a. Of Act of Bankruptcy. See BANK

RUPTCY.

b. Of Dishonour.-See BILLS OF EXCHANGE.
c. Of Injunction-See INJUNCTION.
d. To Quit.-See LANDLORD AND TENANT.
e. To Treat.-See LANDS CLAUSES ACT.
f. Priority of Incumbrances by.-See MORT-

GAGE.

g. Purchaser, bona fide without Notice.-See VENDOR AND PURCHASER.

h. Of Lessor's Title and Restrictive Cove- | 596; 2 N. R. 500; 32 L. J., Ch. 782; 9 L. T. 71; nants.-See VENDOR AND PURCHASER. 11 W. R. 1081. i. Of Voluntary Settlements.-See FRAUD (FRAUDULENT CONVEYANCES).

To Director.]-A director of a company is not bound to examine entries in any of the

j. Of Easements.-See VENDOR AND PUR- books of the company; and the doctrine of con

CHASER.

k. Of Action.-See PRACTICE.

1. Of Trial.-See PRACTICE.

m. To Produce Documents.-See EVIDENCE.

1. GENERAL PRINCIPLES.

[ocr errors]

structive notice is not to be so extended as to impute to him a knowledge of the contents of the books. Denham, In re, 25 Ch. D. 752; 50 L. T. 523; 32 W. R. 487.

Commercial Transactions.]-The equit

able doctrine of constructive notice is not applicable to commercial transactions. The fact that a bill of lading contains the words Court of equity cautious in impeaching a pur-all other conditions as per charterparty" is, chaser's title upon presumptive notice. Hitch- therefore, not by itself sufficient to fix an ascock v. Sedgwick, 2 Vern. 159. signee of the bill of lading with notice of such a Where the evidence of notice in the pur-provision in the charterparty as that above chaser is very loose, and there only exists a stated. Manchester Trust Co. v. Turner, 64 suspicion of it, equity will not act upon it. L. J., Q. B. 766; [1895] 2 Q. B. 539; 14 R. 739; Eyre v. Dolphin, 2 Ball & B. 301; 12 R. R. 94. 73 L. T. 110; 44 W. R. 178-C. A.

Constructive Notice.]-The purchaser of the estate of an insolvent debtor from his assignees, at a sale by auction, will not be affected by constructive notice of circumstances of negligence on the part of the assignees in conducting the sale, such circumstances being entirely collateral to any question of title. Borell v. Dann,

2 Hare, 440.

What is Notice.]-Whatever is sufficient to put a party on an inquiry, is good notice in equity to that party. Smith v. Low, 1 Atk. 490.

Notice to a purchaser in one transaction, will not affect him in an independent subsequent one; but notice of a deed is notice of the whole of its contents, so far as they affect the transaction in which notice of the deed is acquired. Hamilton v. Royse, 1 Sch. & Lef. 315.

The rule ought to be adhered to that notice to affect a purchaser should be confined to the same transaction. Warwick v. Warwick, 3 Atk. 294.

The doctrine of constructive notice applies in two cases; first, where the party charged has notice that the property in dispute is incumbered, or in some way affected, in which case he is deemed to have notice of the facts and instruments, to a knowledge whereof he would have been led by due inquiry after the fact which he actually knew; and, secondly, where the conduct Notice to bind a purchaser must not of neces of the party charged evinces that he had a sus-sity be notice in the same transaction. Nixon v. picion of the truth, and wilfully or fraudulently Hamilton, 2 Dr. & Wal. 364; 1 Ir. Eq. R. 46. determined to avoid receiving actual notice of it. Jones v. Smith, 1 Ph. 244; 12 L. J., Ch. 381; 7 Jur. 431.

Constructive notice is of two kinds; one is the notice to an agent which Lord Chelmsford has called "imputed notice." The second is, what he thought should more properly be called "constructive notice," and means that kind of notice which the courts have raised against a person from his wilfully abstaining from making inquiries or inspecting documents. Kettlewell v. Watson, 51 L. J., Ch. 281; 21 Ch. D. 704; 46 L. T. 83; 30 W. R. 402.

The question, when it is sought to affect a purchaser with constructive notice, is not whether he had the means of obtaining, and might, by prudent caution, have obtained the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence. Ware v. Egmont (Lord), 4 De G. M. & G. 460; 24 L. J., Ch. 361; 1 Jur. (N.S.) 97; 3 Eq. R. 1; 3 W. R. 48. Doctrine as to constructive notice in Ware v. Egmont (Lord) (4 De G. M. & G. 460) approved. Bailey v. Barnes. 63 L. J., Ch. 73; [1894] 1 Ch. 25; 7 R. 9; 69 L. T. 542; 42 W. R. 66— C. A.

Constructive notice is resorted to from the necessity of finding a ground of preference between equities otherwise equal, but cannot be applied in support of a charge of direct personal fraud. Wilde v. Gibson, 1 H. L. Cas. 605; 12 Jur. 527.

An incoming tenant from year to year being told that the house could not be used as a butcher's shop, this is sufficient to affect him with notice of a covenant against its use for the sale of beer. Wilson v. Hart, 35 L. J., Ch. 569; L. R. 1 Ch. 463; 12 Jur. (N.S.) 460; 14 L. T. 499; 14 W. R. 748.

Upon an assignment of an outstanding mortgage term, in consideration of a further advance. the assignee was informed that a settlement had been made upon the marriage of the mortgagor, but was assured by him and his wife that it related only to the fortune of the wife and did not include the mortgaged estate, although in fact it did. Upon a bill filed by the eldest son of the marriage, who was tenant in tail under the settlement:- Held, that the assignee of the term was not affected with notice of the settlement, it appearing from the plaintiff's own evidence that the assignee had really believed the representation so made to him to be true. Jones v. Smith, 1 Ph. 244; 12 L. J., Ch. 381; 7 Jur. 431.

W., after completing a contract to buy premises, told M. that he had done so. M. was afterwards informed by the vendor that the treaty with W. was off. M. did not make any further inquiry, and bought and took an assignment of the premises himself:-Held, that he must be held to have had notice of W.'s contract. Waldron v. Jacob, Ir. R. 5 Eq. 131.

Vendee says he has bought; vendor is silent : The doctrine of constructive notice should not-Held, conclusive notice to a third person be extended. Wyllie v. Pollen, 3 De G. J. & S. present. Weymouth v. Boyer, 1 Ves. J. 423.

« PreviousContinue »